by Rob Natelson

The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  It was designed to work with the Tenth Amendment to reinforce limits on the federal government.

The original Constitution contained three types of restrictions on federal power:

Type 1:     The Constitution listed things the government could not do (e.g., pass an ex post facto law).

Type 2:     The Constitution enumerated the powers the government was to have (e.g., regulate interstate commerce, but not agriculture).

Type 3:     The Constitution included specific restrictions on specific powers (e.g., Congress could appropriate money for an army, but only for a two-year period).

Some argued that Type 1 should be expanded with a Bill of Rights. But others (James Madison among them) pointed to a risk in that proposal.  Because of the legal maxim Designatio unius est exclusio alterius (the designation of one thing implies the exclusion of another), adding a Bill of Rights might encourage people to disregard the Type 2 and 3 restrictions on federal power.

When the demand for a Bill of Rights prevailed, Madison agreed to draft one – but he included what became the Ninth Amendment to make it clear that expanding Type 1 did not mean abandoning Types 2 or 3.

A key to reading the Ninth (and Tenth) Amendments properly is to know that the Founding Generation often used the words “right” and “power” interchangeably. (We more rarely do the same, as when we refer to the President’s “right” to veto a bill.)  That is how they were used here.  If you sometimes read the word “rights” in the Ninth Amendment as “powers” and “powers in the Tenth Amendment as “rights,” you can better understand their meaning.

Few parts of the Constitution have been so misunderstood as the Ninth Amendment.  For example, some have argued that it reserved a mass of “natural rights” that the Courts should enforce against the federal, and even the state, governments – such as abortion, property, and contract rights.  That misunderstanding arises from failure to understand that “rights” in the Ninth Amendment means “powers.”

The Ninth Amendment was not designed to enable the Courts to create new rights – or even to recognize old ones.  It was designed to work with the Tenth Amendment to preserve the Constitution’s other restrictions on federal power.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.

On February 12, legislators from the State of South Carolina introduced a bill to affirm the rights not only of their own state, but of all states under the 9th and 10th Amendments to the US Constitution.  (h/t Paul Graham and George McLeod)

Here’s the full text: Continue Reading

by Greg Heller, The Holy Cause

There is a new bill circulating in Montana’s legislature which has significant implications on several fronts in the battle for liberty, most notably that of States Rights, and the right to bear arms.  The bill can be read here, and is not a long read (freedom is much easier to describe than tyranny), but to whet your interest here are a few snippets. Continue Reading

by Jeff Wartman

If you are not free to choose wrongly and irresponsibly, you are not free at all. - Jacob Hornberger.

Every four years, voters in the United States are given a choice between two major party candidates in the Presidential election.  We are often told that either of these candidates are the “mainstream” candidates and if you want your vote to count, you need to choose between either one of the two major party candidates who have a “chance” at “winning”.

However, for true supporters of limited government and personal liberty, this is often a choice made in vain.  If you truly believe in a limited, decentralized government which protects both economic and personal liberties and rights, during most elections there isn’t a major party candidate that will generally fit your values.  You have a choice between the Democratic Party, of which too many members wish to violate your economic rights and liberties, and the Republican Party, of which too many members wish to violate your personal rights and liberties.  This is not a judgment of individuals in either party.  Most individual members are doing what they think is right.  This is a judgment on those than run the major parties. Continue Reading

from DownsizeDC.org

The “Enumerated Powers Act” would force Congress to cite its Constitutional authority for every law it passes. When we last reported to you in late July this bill had 52 co-sponsors in the House, and had just been introduced in the Senate by Tom Coburn, gaining a whopping 22 co-sponsors almost immediately. Continue Reading

Following the rules.

We’re all asked (well…told, actually) that we need to do this each and every day.

The federal government tells us what to do more often that we even pay attention to.  We’re told that we need to give them money, we need to submit to patdowns at airports, we need to allow them to read our emails, and on and on and on.

Remember, we’re not asked.  We’re not asked if we want them to do these things and we’re not asked to comply.  We’re told.  And if we don’t comply, they’ll start pulling out the guns pretty quickly.

But doesn’t this make us second-class citizens? Continue Reading

This legislation, from Representative John Shadegg (R-AZ), would make Congress far more likely to follow the 9th and 10th Amendments: Continue Reading