Ellis Washington’s latest Worldnutdaily column is terribly confused. He’s upset that the 9th Amendment is not given more prominence in our jurisprudence, but at the same time he just hates it when the 9th Amendment is used to protect a right he doesn’t think people should have. He’s also historically inaccurate to a staggering degree, like claiming that Jefferson and Madison were Anti-Federalists.
The Bill of Rights, or the first 10 amendments to the Constitution, was modeled after the Ten Commandments of the Bible and considered by the constitutional framers to be Natural Law – in other words unalienable, God-given, enumerated, natural rights given to all citizens by God and thus rights that could never be lawfully taken away by any tribunal or man’s law.
Utter nonsense. The Bill of Rights was not “modeled after the Ten Commandments,” for crying out loud. The fact that they ended up with ten of them is entirely coincidental; when Madison first proposed the list to Congress there were 12 and they were reorganized and rewritten, some of them deleted and others consolidated. And there isn’t a shred of evidence that this had anything at all to do with the Ten Commandments. The fact that at least seven of the ten commandments could not be made into law here because of the Bill of Rights pretty clearly proves otherwise. The Bill of Rights could hardly be more different from the Ten Commandments.
In America’s early history, there were constant arguments between the Federalists and Anti-Federalists regarding the need for a bill of rights. In Federalist No. 84, Alexander Hamilton argued that a bill of rights was redundant, because it was unnecessary to place limits on the power of government to do things it was not authorized by the Constitution to do. It would be impossible, Hamilton argued, to list all the rights “retained by the people.” Protecting some rights but not others exemplified the Latin maxim expressio unius est exclusio alterius would suggest that Americans had surrendered certain rights to their government when, in Hamilton’s view, the Constitution did nothing of the sort.
On the contrary, Anti-Federalists like James Madison and Thomas Jefferson embraced a much deeper belief in the need for a bill of rights and the Ninth Amendment, which was intended to vitiate the aforementioned Latin maxim. The enumeration of certain rights and liberties in the Constitution, according to the Anti-Federalists, should not be understood to deny others that exist as a condition of citizenship in a free society.
Madison? An Anti-Federalist? Washington needs to retake American History 101. The Anti-Federalists were those who argued against the passage of the Constitution. Madison was a Federalist. Washington might have gotten a clue to that fact by reading the Federalist Papers, of which Madison was one of three authors (Hamilton and John Jay were the other two).
By the way, Madison also initially took the position that Hamilton did, that a Bill of Rights was unnecessary, even dangerous, because you could never list all the rights an individual has and if you tried to make a brief list of such rights, future governments would presume that if a right is not listed, they could violate it at will (precisely the position that conservatives take today, at least when the courts protect an unenumerated right that they don’t like). It was Jefferson, who also was not an Anti-Federalist though he did agree with some of their criticisms of the new government, who convinced him otherwise and led him to become the primary drafter of the Bill of Rights.
It is significant when discussing the history of the Bill of Rights to realize the Supreme Court held in Barron v. Baltimore (1833) that originally the Ninth Amendment was enforceable by the federal courts only against the federal government, and not against the states.
I don’t know why this is significant. Of course the court ruled that way. And they were right. The 9th Amendment did not originally apply to the states. The 14th Amendment changed that.
The Ninth Amendment simply restates the Natural Law idea that rights not specifically enumerated in the Bill of Rights exist and are retained by the people. It was added to ease the concerns of Anti-Federalists such as Madison and Jefferson, who feared that the enumeration of so many rights and liberties in the first eight amendments to the Constitution would result in the denial of rights that were not enumerated.
Well yes, we’ve already covered that. But Jefferson and Madison were still not Anti-Federalists (Jefferson played little role in the writing of the Constitution, as he was in France from 1785 to 1789 when the Constitution was written and ratified, but he did support its passage).
As mentioned, up until 1965 the Ninth Amendment was rarely mentioned by the Supreme Court. In that year, however, it was used for the first time by the Court as a positive affirmation of a particular liberty – marital privacy. Although privacy is not mentioned in the Constitution, it was, according to the Court, one of those fundamental freedoms the drafters of the Bill of Rights implied as retained…
The title of my column has a double meaning – on the one hand, the Ninth Amendment was ignored by generations of leftist law scholars, progressive politicians and activist judges; on the other hand, those judges concocted out of who cloth and “found” a new right to privacy to legalize birth control in Griswold v. Connecticut and a hidden constitutional “right” in the “penumbras” and “shadows” that have for over 175 years eluded all of the constitutional framers, as well as subsequent constitutional scholars and legal experts, leading directly to legalization of abortion in Roe v. Wade (1973) just eight years later and in the legalization of homosexual sodomy in the Lawrence v. Texas (2005) case.
And herein lies Washington’s terrible confusion. The 9th Amendment is crucial to liberty, he says. But it was ignored for generations, and only used to protect liberty after 1965. But it was used to protect a right that he doesn’t want to exist. So “leftist law scholars” are to blame both for ignoring the 9th Amendment and for using the 9th Amendment to protect rights that Washington doesn’t support. He never gets around to saying what he thinks the 9th Amendment does or should mean, what rights he thinks it does or should support. I suspect there’s a reason for that. Because this is all about constructing a means of attacking “leftists” rather than providing a coherent argument.
Like Dispatches on Facebook: