Ask Auntie Pinko
May 8, 2003

Dear Auntie Pinko,

I'm probably closer to a Libertarian than a Democrat, meaning I agree with you on many Social issues, but disagree on many issues regarding the scope and goals of the Federal Government.

I've also read you stating your respect for the Constitution.

Could you please state your opinions regarding the 9th and 10th Amendments and how you feel our Federal Government does (or does not) abide by these?

Robert,
Colorado Springs, CO

Dear Robert,

Goodness! If learned Constitutional scholars have a hard time producing clear and simple opinions regarding the intersection of the Ninth, Tenth, and Fourteenth Amendments, Robert, it's asking a lot of Auntie Pinko to take on such a project. But it is an interesting question, and one with much room for discussion.

Just to recap, the Ninth Amendment, known familiarly as the "unenumerated rights" amendment, says that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Tenth, or "states' rights" amendment, says "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."

Auntie Pinko dragged in the Fourteenth (the "freedmens'" amendment) because of the Supreme Court's decision that the Ninth Amendment applies to states - which may (or may not, depending on whose interpretation you buy) limit the rights of states to abridge their citizens' rights.

The Fourteenth Amendment was enacted after the Civil War in an attempt to prevent the southern states from disenfranchising their newly-freed African-American citizens under the shield of "states' rights." And that action pretty much sums up the debate on the Tenth Amendment and where the Federal Government has stood ever since.

The problem with both of these amendments comes down to two things:

The first is whether you view the Constitution as a tool for enacting "the will of the people," (which frequently means 'majority rule,') or a tool for protecting the rights of minorities against an unfriendly majority.

The second is whether you construe my right to be protected from you exercising your rights as less than or greater than your right to exercise those rights?

The Libertarian assumption that one should have the right (more or less,) to do whatever they want as long as it does no harm to others, sounds wonderful. But the instant you start defining "harm" as "decreasing the value of your property, which is next to mine, (on which I want to exercise my right to run an adult entertainment establishment)" you have substantially abridged my rights as a property owner. On the other hand, if I'm free to run a lap dance club in our quiet residential subdivision, I have substantially abridged your right to enjoy your property in peace and quiet.

The Ninth Amendment, bald and short (I quoted it in its entirety above) is silent about what happens when "rights" retained by one group of people are denied or disparaged by another group of "the people" who assert that it is their "right" to do so. And when the nickels have all hit the floor, it is a branch of the Federal government (the Supreme Court) which has to decide between the competing interests of various groups of citizens.

Since Auntie Pinko thinks that the people who wrote the Constitution and the Bill of Rights were pretty smart cookies, I also think that they must have figured this out. They needed those Amendments to get the Constitution ratified - no state was going to buy into a union without some guarantees, after all - but they also knew that by saying as little as possible, and letting an un-elected judiciary balance the flaws of majority rule, they had provided a tool that would allow us to build and re-build a framework of law and equity that could respond to new challenges as they arose.

In short, I'm neither a legal scholar nor a jurist, and any "opinion" I could offer on the amendments could be easily torn apart by anyone whose interpretation differed from my own. Scholars and jurists whose interpretations vary have been learnedly and (usually) politely slanging one another off in legal and popular journals for many years now, and they have all said it better than I ever could.

I'm simply glad that we have a system that enables us to repeatedly test the will of the majority against the rights of the minority, to take into account both individual and community well-being, to change as new challenges arise, to correct our old mistakes and make plenty of new ones. I wouldn't have it any other way.

Sorry if that's a disappointing answer, Robert, but thanks anyway for asking Auntie Pinko!

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