A correspondent of mine recently opined thusly:
The founding fathers KNEW that situations change, which is why we have the 9th Amendment:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
They were wiser than we even realize most of the time. They gave us this explicit statement that the Constitution IS a living document.
Suspecting that she misunderstood the Ninth Amendment, I asked her if she had any idea why the Ninth Amendment was included, its significance. She replied:
“Yeah. They were leaving wiggle room for the future in case there were any rights they neglected to mention.”
As I suspected, she didn’t understand the Ninth Amendment. To put it in more modern English, the amendment says: “Even though we listed some rights in the Constitution, that doesn’t mean there aren’t a lot more rights that the people still have.”
My response was as follows:
“In case” there were any they failed to mention? Hardly. The whole point is that we have all the rights except for the very few we delegated to FedGov. They knew there was no way to list all of a citizen’s rights. There is no “in case” since they didn’t even try to list all our rights. it’d be impossible. But then, there’s no need to list our rights, since FedGov is a government of limited powers. That is what some states believed. But others wanted certain rights guaranteed in writing nonetheless. So we have the Bill Of Rights.
Other states were concerned that listing *any* rights: assembly, petition, speech, press, religion, bearing arms and so on, might cause some knuckleheads to say, “If it’s not in the Constitution then you don’t have that right.” Such people miss the point that the Constitution does not grant us rights; it only mentions a few of the more important ones explicitly, saying that they shall not be infringed. The rights exist whether or not the Constitution exists and cannot be infringed unless the Constitution specifically says they can.
So we have the Ninth Amendment to keep the knuckleheads at bay.
The Bill Of Rights is all about pre-existing rights that the amendments remind us cannot be infringed by FedGov. Absent an amendment specifically mentioning freedom of speech, the press or religion, we would still enjoy these rights because FedGov was NOT empowered to infringe them.
Thus, I’m always amazed that no one sounds an alarm when some knucklehead Supreme Court nominee or “Constitutional scholar” says something like: “There’s no right to privacy in the Constitution” to justify the latest FedGov snooping measure.
We enjoy a right to privacy because we are born with it. It can only be encroached upon by powers specifically delegated to FedGov by the states. If the Constitution does not expressly grant power to FedGov to do something (like invade our privacy) then it is unconstitutional.
Where we disagree is on the whole “living Constitution” concept. We neither want nor need a living Constitution. The Constitution is not about granting rights. It did just two things:
- It created a federal government and;
- Delegated certain, limited powers to that government.
The powers delegated to FedGov and the rules for running FedGov are all in the Constitution.
Those who favor a “living” Constitution are in favor of continually expanding FedGov’s powers and, since the powers on which they have designs are not actually granted to FedGov by the Constitution, they claim a “living” Constitution that can constantly be reinterpreted to find all manner of heretofore unknown powers not actually delegated to FedGov by the states. This has been going on for over two hundred years now.
A living Constitution is not a good thing because it serves only to increase FedGov power and reduce our rights and liberties.
A living Constitution is not needed because FedGov can only infringe our rights and liberties within the very limited powers granted to it by the states. If, that is, it follows the rules set forth in the Constitution.
Now, if only we could get FedGov to follow the damned rules.