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.
Tenth Amendment, United States Constitution
During the many debates regarding the United States Constitution, whether this be about the controversial First and Second Amendments, or the philosophy surrounding the principles and application of such a class of document, there are many amendments that are often overlooked or forgotten. Surely, like in the case of the Third Amendment, this is simply because society has evolved past certain notions of societal processes; such as, in this case, the quarter of troops in the homes of citizens.
Specifically, however, there are two Amendments that are rarely referenced, if at all (at least in the public quorum and debate), but hold significant power and assemblance in accordance with the laws and structure of our government–those being the Ninth and Tenth Amendments. In many ways, they go hand in hand as they establish the boundaries and limits of the Federal government and Constitutional powers. The need for such amendments is clear when considering the context surrounding the ratification of the Constitution; as many feared a stronger document, than that of the Articles of Confederation, would apply and supply too much power to a strong central government. Therefore, in due order, to prevent and appease the Anti-Federalists and very libertarian-esque states (like Rhode Island, at the time) measures were taken to specifically acknowledge the limitations of government that most agreed upon anyhow.
The Tenth Amendment is clear in this regard as it specifically establishes should any right not be given to the Federal government through the Constitution, it is hereto given directly to the States and then the people. This essentially acts as a safety net for States’ rights and prevents tyrannical federal government. Though, it is important to note the entirety of the Amendment as this does not mean all rights are given to the state first (i.e. the Supremacy Clause). The perfect example can be seen in the Second Amendment. Within the Constitution, it clearly gives the right to bear arms to the People; and as the Tenth Amendment says, “The powers not delegated… nor prohibited by it to the States… or to the people”, these portions show how it is contextually based should rights be given to the People OR States (and the prerogative of state legislature to enact their own laws and rights of their citizens).
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Ninth Amendment, United States Constitution
We can actually see the history behind these two Amendments in the ratification conventions of many of the states prior to 1791. New Hampshire, for example, establishes what would become these, amongst other, amendments. In their introduction, the convention acknowledges the very issue of unkept assurances to the prevention of tyranny: “And as it is the Opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good People of this State & more Effectually guard against an undue Administration of the Federal Government- The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.-” (Ratification of the Constitution by the State of New Hampshire, June 21, 1788). Beyond such, the very first point of alteration is exactly, by paraphrasing, the Tenth Amendment.
First That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.-
Ratification by the State of New Hampshire
It is quite obvious, however, the absence of any mention of the people’s rights, but either way, the principle stands clear.
Similarly, the New York Convention for the ratification of the Constitution, in 1788, supplied certain acknowledgments and appendments to the Constitution. One, relating to these Amendments, “That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution” (Ratification of the Constitution by the State of New York, July 26, 1788).
The very interesting and important detail is the lack of any mention resembling the Ninth Amendment. This is most certainly due to the fact that there was already an understanding of the People’s rights. The Bill of Rights was specifically written and designed to set in stone certain rights held by the people; with the Ninth covering all those that could not, at the moment, (because of the nearly infinite amount) of unenumerated rights. In fact, James Madison was so concerned should future generations misconstrue the Constitution and its foundation, as to suggest because certain rights are not written into the Constitution that the people, therefore, do not have them; that he added the Ninth Amendment to clarify just this issue. This was largely influenced by the Anti-Federalists in their concern that the Bill of Rights, which they argued for, would imply the lack of rights not enumerated. As Madison said, in one of such conventions for ratifying the Bill of Rights, “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against” (Constitution Center).
Another piece of supporting evidence that can bring conclusion and illumination to this topic, the true meaning of such amendments, is the history of the ratification of the Constitution, specifically.
Originally, the Constitution as thought out and planned by James Madison, Alexander Hamilton, etc, did not include any such incorporation of a Bill of Rights. In fact, as shown by Hamilton in Federalist Papers No. 84, he felt the Bill of Rights was an error of the opposition. The use and need of a Bill of Rights would invalidate the inherent condition that the Constitution was a limit on the power of the general government; largely by supposing the extension to regulate or evade any such rights citizens hold through a declaration within the Constitution.
He argues that it cannot be construed, as in the Constitution, to give any undue power to the federal government and that the rights of the people do not need to be stated; for they are true or exist otherwise. He based this conclusion on not only the states’ constitutions at the time, but also that of Great Britain.
In concurrence, the argument supposed by Hamilton would be the foundation for the Ninth and Tenth Amendments but enumerated (later through the pen of Madison). The Ninth specifically targets that by not including certain rights in the enumeration, they, therefore, do not exist. While the Tenth supports and affirms the power and sovereignty of statehood; the main concern of the opposition to the Constitution was based on the thinking that states’ rights would be severely infringed or completely removed.
Fundamentally, by acknowledging amendments of rights within a constitution, as Publius explains, could imply the ability and power to regulate said amendments as well to the forfeit of others not enumerated. When, in fact, the national authority has no power to do so. Consequently, by declaring a right you would lock it into the bounds of definition and literal meaning (based on the time period of the evolution of the English language and public/judicial opinion) of the word to which it is made up. Therefore, allowing evasion and acceptance of exclusive cases which are not technically against the supposed rights enumerated.
The point is, the Constitution is a Bill of Rights for the government, per se. By which they CAN and are allotted the power, by efficacy, to carry out their rights as granted. It stands that all that is not expressly given to the federal power is, by common sense and based on the understanding of the original writers, held by the People or States.
For many a reason, the Ninth and Tenth Amendments are crucial to the freedom and liberty of America and its governmental foundation. It is clear should the Ninth Amendment apply to prevent the federal government from trampling on the Rights of the People, including those enumerated within the Constitution. While the Tenth Amendment prevents and limits the power of the Federal government over the People and States, moreso securing the sovereignty of statehood.