I love the 9th and 10th Amendments. If only the politicians would read 'em...
Seriously. The 9th and 10th amendments of the Bill of Rights are priceless.
Amendment IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X -The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
These two amendments hold the key to almost any modern day legal conundrum * a slight exaggeration, but you know what I mean.
Let’s think about it. First of all: the fact that the Constitution outlines specific rights does not mean that those are the only rights held by the US citizenry. This is why we have the expectation of privacy even though there is no explicit ‘right to privacy’ in the Constitution. Beautiful, isn’t it?
Secondly: if a certain right or ability isn’t explicitly given to the federal government and is not explicitly prohibited by the states, then that right or ability should default to the state and/or it’s citizens. And this, my friends, is where it gets interesting.
Let’s take an existing hot topic: gay marriage. Does your state have a law that explicitly says it’s illegal? If not, and since the power to determine legal marriage has not been delegated to the federal government, then by the literal reading of the 10th amendment gay marriage is legal in your state. That is, unless an constitutional amendment is passed which specifically defines “marriage”. Unfortunately, that is exactly the official Republican platform: to alter the constitution thereby delegating marriage to the federal government. Essentially, restricting the rights of the few through codified law.
(Essentially the same thing, by the way, is going on with federal vs. state drug laws. Feel free to visit the Marijuana Policy Project for details on how the current federal laws supercede any posession legalized at the state level (or just scan the over 300k search results for Legal Marijuana Arrested). Because control of marijuana is codified at the federal level, they can and do trump the states regulations with regards to that same substance.)
Now, at first glance some peope might not think that’s too bad a thing (in which case, this might not be the place for you). However, I would ask that you take a look at amendments 11-27 to the constitution and see if you can find a consistent them. I can: almost every single one of either a) codifies a specific function or regulation of the federal government or b) codifies the protection of a specific right. There’s only one amendment that has been ratified which actually reduced the rights of the individual. Care to guess what it was?
Prohibition.
That’s right: prohibition is the only amendment that actually sought to restrict the rights of the individual via constitutional law. And we all know how that turned out…
So, the question I guess I’m asking is this: is it appropriate to amend the Constitution to restrict rights? It’s been done before (once), but had such devistating results that the amendment was repealed. Do we want the Constitution to be a document of ‘cannots’? Personally, I don’t think so. I much prefer the United States Constitution be a document that protects us as citizens. That means all of us.
