Saturday, February 2, 2019

How to Destroy the Bill of Rights: Start with the 9th and 10th Amendments - By Robert Curry

Are you worried about the Democrats' plans for the First and Second Amendments?  You are right to be concerned.  The leftists who have taken over and transformed that political party have made it clear that they intend to eliminate those two fundamental protections of American liberty.  Freedom of speech and "the right of the people to keep and bear Arms" are in their crosshairs – along with the Electoral College and much else besides – and they mean business.  
But have you noticed what has already happened to amendments farther down the list that makes up the Bill of Rights?  The Ninth and Tenth are already dead letters.  Here is the Ninth:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
And here is the Tenth:
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.
The Ninth and the Tenth Amendments, the final two of the Bill of Rights, are best considered as a complementary pair, each reinforcing the other.  Together they make clear the Founders' intent.  The Ninth says our rights are not limited to the enumerated rights.  The Tenth says the powers of the federal government arelimited to the enumerated powers.  Here is the vision of the Founding stated in fewer than fifty words: a federal government of strictly limited powers and a people guaranteed vast liberty and consequently unbounded opportunity.
To point out that the central government we now live under, the Beltway Leviathan, is no longer a federal government of strictly limited powers is only to state the all too obvious.  A central government that can prevent a farmer from plowing across a "vernal pool" (standing water after spring rain) on his own land, can force schools to allow boys who "identify" as girls access to the dressing rooms and showers traditionally set aside for real girls, and can force you under penalty of law to buy insurance designed by that same government is well on its way to being totally unlimited, if it is not there already.
By way of a reminder, here is what the American Founders meant by a federal government of strictly limited powers, as described by James Madison inFederalist 45:
The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce[.] ... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Farmers plowing their fields in the spring, boys and girls taking showers at school, and Americans weighing the costs and benefits of health insurance are far removed from "war, peace, negotiation, and foreign commerce." 
The central government that rules over us today is not only virtually unlimited, but no longer even "federal" in the Founders' meaning of the word. 
The Framers' focus was defining and limiting federal power.  They did so by distributing power among the Executive, Legislative, and Judicial Branches of the federal government.  They went even farther by dividing the legislative power, crafting two legislative bodies, the Senate and the House, with separate powers and potentially competing interests.  In addition, they created a zone of liberty around you, the individual American, by means of the Bill of Rights.  Perhaps their greatest limitation on the power of the central government was preserving the political independence of the states.  The independent political power of the states was what made the American system of government "federal."  The states' ability to counterbalance the power of the government created by the Constitution was at the core of the federalism of the Founders.
Madison and the other Founders put great emphasis on the importance of the independence of the states to the preservation of Americans' liberty.  Jefferson put it this way:
What has destroyed liberty and the rights of man in every government which has ever existed under the sun?  The generalizing and concentrating all cares and powers into one body.
Lord Acton, the great historian of liberty and admirer of the Founders, gave us this:
Federalism: It is coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty.
The Framers of the Constitution aimed to preserve our unalienable rights by preventing the concentration of political power in the central government.  Their vision for America has largely been abandoned.  Our modern obsession with national politics, the natural result of the centralization of enormous political power in Washington, is not what the Founders intended for America. 
It makes sense to consider the Ninth and the Tenth Amendments, written by James Madison, were to be the final acts of the original Founding and, at the same time, also a summary statement of the Founders' work.  Jefferson's opening claim that begins with the words "We hold these truths to be self-evident" is just over fifty words in length.  Madison's closing statement is just under fifty words.  There is greatness in those hundred words.  If we set out to restore the Founders' vision of American liberty, Madison's closing statement together with Jefferson's opening one can show us the way.
Robert Curry serves on the Board of Directors of the Claremont Institute and is the author of Common Sense Nation: Unlocking the Forgotten Power of the American Idea from Encounter Books.  You can preview the book here.