The forgotten ammendment

HMTKSteve

This is a good read on the forgotten ninth amendment to the American constitution.

Diagoras

Not by everyone. But tell me this: Who is going to enforce it?

jcc

The 17th amendment doesn't get much consideration either, probably because most people never really think about what a Senator is supposed to do that's different than a Representative.

Apreche

The ninth amendment is one that I hold near and dear. Here's the deal.

Let's say I make a list of ten things that are edible, and I don't write anything else. This leaves a bit of ambiguity. Does this mean that everything that is not on the list is inedible? When positives are enumerated, everything that is not enumerated is commonly assumed to be negative and vice versa.

You will note that in Article 1, Section 8 of the Constitution there is the enumeration of the powers of congress. They very specifically make a list of the things congress has the power to legislate. It as assumed since the powers are enumerated that congress has no powers beyond those listed. So when they made the Bill of Rights, they were enumerating things which the congress did not have the power to legislate. This leads to confusion. Is it ok for congress to legislate things not on the list, or not? From everything I have read, the opinion of the US courts has always been that the ninth amendment is the answer to this question, and not much more.

I personally interpret the ninth amendment to be more than that. Take for example Roe v. Wade. I fully support the right to an abortion. However, I personally consider Roe v. Wade to be unconstitutional. The court upheld their decision based upon the due process clauses. The argument to base the decision on the 9th amendment was made, but the court clearly said that the 9th amendment does not create federally enforceable rights. While I agree that this is true, I believe that the amendment does give rights to the people. I say the court could have declared that reproductive rights are a right reserved by the people, and that's the end of that. Congress may not be able to make a law granting new rights, they need an amendment. However, I think the 9th amendment should allow courts to use judicial review to overturn laws that infringe upon rights reserved by the people.

I'm not a constitutional scholar or anything, so I can't make a much better case than that. I'll just say that some people take the ninth amendment craziness a little far. Those people scare me, but I do think that a poor interpretation of the amendment by the courts has resulted in many injustices, and a slowing of progress.

One Sin

Considering the 9th Amendment can come into direct conflict with the elastic clause, it's impossible to define Congress' power with any finality.