BULLETIN
#33 Fall 2001
l RIGHTS
AND THE CONSTITUTION: THE NINTH AMENDMENT
Part 1: Brief Constitutional
History
l UNITED STATES SUPREME COURT DENIES REVIEW
IN SECOND AMENDMENT CASE
#33 Fall 2001Page
1
RIGHTS AND THE CONSTITUTION
The Ninth Amendment
Part 1: Brief Constitutional History
By Stephen Plafker
The purpose of this article is to trace and to explain the history
of the concept of rights in judicial treatment. In this first part,
I summarize the history of the Constitution and the Bill of Rights
with emphasis on the Ninth Amendment. I will then discuss the deterioration
of the way courts have treated rights over the years. Finally,
I will show that this deterioration was almost inevitable without
a clear, logical theory of rights and that the only solution lies
in Objectivist political theory.
__________________________________
Why don't modern courts enforce rights?
The American
Revolutionary War began on April 19, 1775 and ended on September
13, 1783.
During the process of separation from England,
13 colonies became states: i.e., sovereign countries with "full
power to levy war, conclude peace, contract alliances, establish
commerce, and to do all other acts and things which independent
States may of right do."1 The states were held together in
a loose confederation, a "firm league of friendship," under
the Articles of Confederation. Under the provisions of this document,
the national government was ineffective.
The new states
proceeded to act like independent countries---toward each other. "They wrangled over boundaries and navigation
rights. They flouted provisions of the peace treaty with Britain
to restore confiscated loyalist property . . ."2 They issued
fluctuating paper money, and passed conflicting trade restrictions,
sometimes imposing duties and other trade restrictions---sometimes
higher on fellow states than on Britain.
A number of
people, especially James Madison, determined to do something
about these problems. Convinced that a new form
of government was required, they convinced the Continental
Congress to issue a call for a convention to be held in Philadelphia
during the summer of 1787 to amend the Articles of Confederation.
The convention
worked throughout a long, hot, humid Philadelphia summer and,
in what
George Washington declared to be "little
short of a miracle," produced the Constitution of the United
States. Under Article 7, "The ratification of the Conventions
of nine States, shall be sufficient for the establishment of this
Constitution between the States so ratifying the same." In
practice, however, the government would very likely fail unless
all the larger states ratified.
There were,
as always, those who were opposed. These opponents worked to
defeat the Constitution in the state conventions. Chief
among the arguments against the Constitution was a complaint that
the
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Constitution
did not contain a Bill of Rights.3 The Constitution's proponents divided their reply into several
parts.4 First, they pointed out that some of the state constitutions
had no bills of rights, and that freedom in those states had not
suffered. Second, they referred to some protections already in
the Constitution.5
Their primary position was that a bill of rights is unnecessary
in the kind of government provided for in the Constitution. Two
arguments were advanced for this position. The first distinguished
between a monarchy and a republic. In the words of Alexander Hamilton:
It
has been several times truly remarked that bills of rights are,
in their
origin,
stipulations between kings and their subjects,
abridgements of prerogative in
favor of privilege, reservations
of rights not surrendered to the prince. . . .
It is evident, therefore,
that, according to their primitive signification, they have
no
application to constitutions professedly founded upon the power
of the people,
and executed by their immediate representatives
and servants. Here, in strictness,
the people surrender nothing;
and as they retain every thing they have no need
of particular
reservations. "WE, THE PEOPLE of the United States, to secure
the blessings of liberty to ourselves and our posterity, do ORDAIN
and
ESTABLISH this Constitution for the United States of America." Here
is a
better recognition of popular rights, than volumes of those
aphorisms which
make the principal figure in several of our State
bills of rights, and which would
sound much better in a treatise
of ethics than in a constitution of government.
The second
argument was based on the fact that the new government was one
of delegated powers: its only powers
were those mentioned in Article I of the Constitution. And none
of the granted powers allowed the government to violate rights.
Indeed, it was argued, a bill of rights would be dangerous: should
any right be overlooked, this would give the government a pretense
to violate that right. Hamilton further states:
I
go further, and affirm that bills of rights, in the sense and
to the extent in which
they are contended for, are not only unnecessary
in the proposed Constitution,
but would even be dangerous. They
would contain various exceptions to
powers not granted; and, on
this very account, would afford a colorable pretext
to claim more
than were granted. For why declare that things shall not be done
which there is no power to do? Why, for instance, should it be
said that the
liberty of the press shall
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not be restrained,
when no power is given by which restrictions may be imposed?
I will not contend that such a provision would
confer a regulating power; but it
is evident that it would
furnish, to men disposed to usurp, a plausible pretense
for claiming
that
power. They might urge with a semblance of reason, that the
Constitution ought not to be charged with the absurdity of providing
against
the abuse of an authority which was not given, and that the
provision
against restraining the liberty of the press afforded
a clear
implication, that a
power to prescribe proper regulations
concerning it was
intended to be
vested in the national government.7
As a summary, Hamilton argued:
The truth is, after all the declamations we have heard, that the
Constitution is
itself, in every rational sense, and to every useful
purpose, A BILL OF RIGHTS . . . .
Is it one object of a bill of
rights to declare and specify the political privileges of
the citizens
in the structure and administration of the government? This is
done
in the most ample and precise manner in the plan of the convention;
comprehending various precautions for the public security, which
are not to
be found in any of the State constitutions. Is another
object of a bill of rights
to define certain immunities and modes
of proceeding, which are relative to
personal and private concerns?
This we have seen has also been attended to,
in a variety of cases,
in the same plan.8
Finally, the
proponents pointed out that a bill of rights could be
added to the Constitution by amendment.
The Constitution
was ratified by 11 states. A number of the ratifying states,
concerned over the issue, proposed that a bill
of rights be added by amendment. At the first Congress, James
Madison offered nine resolutions to amend to the Constitution as
requested by the hesitant states. He addressed the objections to
a Bill of Rights as follows:
I admit that
these arguments are not entirely without foundation; but they
are not conclusive to the extent which has been supposed.
It is true, the
powers of the General Government are circumscribed,
they are directed to
particular objects; but even if Government
keeps within those limits, it has
certain discretionary powers
with respect to the means, which may admit of
abuse to a certain
extent, in the same manner as the powers of the State
Governments
under their constitutions may to an indefinite extent; because
in the constitution of the United States, there is a clause granting
to
Congress the power to make all laws
which shall be
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necessary
and proper or carrying into execution all the powers vested in
the
Government of the United States, or in any department
or officer thereof, this
enables them to fulfil every purpose
for which the Government was established.
Now, may not laws
be considered
necessary and proper by Congress, for it
is for them to judge
of the necessity and propriety to accomplish those
special
purposes
which they may have in contemplation, which laws in
themselves
are neither necessary nor proper; as well as improper laws
could
be enacted by the State Legislatures, for fulfilling the
more
extended objects
of those Governments. I will state an instance,
which I
think in point, and proves
that this might be the case. The
General Government has a right to pass all
laws which shall be
necessary
to collect its revenue; the means for enforcing
the collection
are within the direction of the Legislature; may not general
warrants be considered necessary for this purpose . . . .
As to the problem that certain rights may be overlooked, Madison
said:
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 it may
be guarded
against. I have attempted it, as gentlemen may see by turning to
the last clause
of the fourth resolution [which read:]
The exceptions here or elsewhere in the constitution, made, in
favor of particular
rights, shall not be so construed as to diminish
the just importance of other
rights retained by the people, or
as to enlarge the powers delegated by the
constitution; but either
as actual limitations of such powers, or as inserted
merely for
greater caution.
Congress modified Madison's resolutions and sent them to the states
for ratification. The last clause of Madison's fourth resolution
became the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall
not be construed to
deny or disparage others retained by the people.
Thus, it is
clear that the Constitution was designed to advance the sole
purpose of
government: "to secure . . . rights."9
And that no rights should be omitted. Given this history, why do
American governments today think their main function is to violate
rights?
Answer to follow.
__________________________________
References and Notes:
1. Declaration of Independence
2. William
Peters, A More Perfect Union, Crown Publishers 1987
3. This complaint
arose early in the debates on ratification. One typical example
came
from one "Z": "Those among
us who cannot entirely approve the new Constitution as it is called,
are of opinion, in order that any form may be well administered,
and thus be made a blessing to the people, that there ought to
be at least, an express reservation of certain inherent unalienable
rights, which it would be equally sacrilegious for the people to
give away, as for the government to invade. If the rights
of conscience, for instance, are not sacredly reserved to the people,
what security
will there be, in case the government should have in their heads
a predilection for any one sect in religion? what will
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hinder the
civil power from erecting a national system of religion
and committing the law to a set of lordly priests, reaching,
as the
great Dr. Mayhew expressed it, from the desk to the skies?
An
Hierarchy which has ever been the grand engine in the hand
of civil tyranny; and tyrants in return will afford them
opportunity
enough
to vent their rage on stubborn hereticks, by wholesome
severities, as they were called by national religionists, in
a
country which has long boasted its freedom. It was doubtless
for the peace of that nation [England], that there should be
an uniformity in religion and
for the same wise and good reason, the act of uniformity remains in force to these enlightened times." "Z", in the Independent
Chronicle (Boston), December 6, 1787 (italics in original).
4. The arguments are associated primarily with James Wilson and
Alexander Hamilton. The latter was the author of The Federalist
Number 84 which is extensively quoted below.
5. These include limitation on impeachment powers and treason
prosecutions, the protection of the Writ of Habeas Corpus, prohibition
of bills of attainder and ex post facto laws, the prohibition against
titles of nobility, and preservation of the jury trial in criminal
cases.
6. The Federalist Number 84 (capitals in original)
7. Id.
8. Id. (capitals in original)
9. Declaration
of Independence. See, Ayn Rand, "The Nature
of Government" in The Virtue of Selfishness and Capitalism:
The Unknown Ideal
UNITED STATES SUPREME COURT DENIES REVIEW IN SECOND AMENDMENT CASE
The Second
Amendment case, United States v. Emerson1 discussed in the TAFOL
Bulletin
of Winter 2001, was appealed to the Fifth
Circuit Court of Appeals.2 The Federal District Court had held
that the Second Amendment guarantees an individual right as opposed
to a "collective right"3 to bear arms and, based on this
holding, it dismissed an indictment charging that one Timothy Joe
Emerson had violated a court order prohibiting him from possessing
a firearm.
The action of the Appeals Court is confusing. On one hand, most
of the majority opinion was spent agreeing with the District Court
that the Second Amendment does indeed confer an individual right.
Nevertheless, the Court reversed the District Court's decision
as follows:
We
agree with the District Court that the Second Amendment protects
the
right of individuals to privately keep and bear
their own firearms . . . However, . . .
we also conclude that the [order
Emerson was charged with violating] is
sufficient, albeit likely
minimally so, to
support the deprivation, while it remains
in effect, of the defendant's
Second Amendment rights.
Thus, most of the opinion was dicta, i.e., legal discussion with
no effect on the result. This aspect was properly condemned by
a concurring judge:
No doubt the special interests and academics on both sides of
this debate will
take great interest in the fact that at long last
some court has determined
(albeit in dicta) that the Second Amendment
bestows an individual right.
The real issue, however, is the fact
that whatever the nature or parameters
of the Second Amendment
right, be it collective or individual, it is a right
subject to
reasonable regulation. The debate, therefore, over the nature
of
the right is misplaced.
That a right
can be subject to "reasonable regulation" is
standard in modern jurisprudence. The case was appealed to the
United States Supreme Court but was denied review. The dicta
#33 Fall
2001 Page 6
make a very
good argument for the Second Amendment but it has no legal effect,
and thus the case leaves this issue of individual
rights unsettled.
__________________________________ References and Note:
1. 46 F.Supp.2d 598 (N.D. Tex. 1999). See <sorry internet link bad>
2. Court of Appeals, Fifth Circuit, No. 99-10331 (decided November
2, 2001). See
<sorry internet link bad>
3. The "collective right" theory
holds that any right found in the Second Amendment is a right
held by the state or by
the people collectively and cannot be asserted by an individual.
__________________________________
Copyright © 2002
The Association for Objective Law. All rights reserved. The Association
for Objective Law is a Missouri non-profit
corporation whose purpose is to advance Objectivism, the philosophy
of Ayn Rand, as the basis of a proper legal system.
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