An Arbitrary Nation, Part 6

Illustration by Jason Stout

If you've walked in after the show has begun, this "Arbitrary Nation" series slowly turns the pages of the Constitution to see if it remains the bulwark of American law. "Bulwark" means "defensive wall" (Oxford English Dictionary), but, in this series, fact after fact has revealed a crumbling edifice, breached on all sides – and breached by all sides, with Democrats and Republicans equally culpable for the damage done since 2001.

And, now, ladies and gentlemen, boys and girls, and those who are both or neither, we come to the fun amendments, the Ninth and Tenth – fun, I say, because, more than anything else in the Constitution, they reveal not only the Framers' intents but their very hearts, and show us how far we've strayed from the liberty they envisioned.

Let's let the Framers speak for themselves for a change.

James Wilson is all but forgotten now, but he was a deeply influential figure at 1787's Constitutional Convention. (In 1789, President George Washington appointed him to the nation's first Supreme Court.) In a speech in Philadelphia, Oct. 6, 1787, Wilson defined the fundamental nature of the Constitution: "[E]verything which is not given is reserved."

Even without the Internet, Wilson's formulation flashed up and down the country, as proved by this letter from the anonymous "Federal Farmer," published in New York less than a week later, on Oct. 12: "It is said, that when the people make a constitution, and delegate powers, that all powers not delegated by them to those who govern, is reserved in the people; and that the people, in the present case, have reserved in themselves ... every right and power not expressly given the national government by the federal constitution."

Thomas B. Wait, the founder of Maine's first newspaper, wrote on Jan. 8, 1788: "[E]very right is reserved that is not expressly given up."

Samuel Holden Parsons, a Connecticut lawyer and soldier who rose to the rank of major general in the Continental Army, wrote on Jan. 11, 1788: "[T]his Constitution is grounded on the idea that the People are the fountain of all power. ... [E]very power not granted [to the government] rests where all power was before lodged."

Because of this conception, Parsons, like many others, argued against a bill of rights because it "would be dangerous, as it would at least imply that nothing more was left with the People than the Rights defined & secured in such Bill of Rights."

So agreed North Carolina's James Iredell, writing as "Marcus" in the Norfolk and Portsmouth Journal, Feb. 20, 1788: "[A] Bill of Rights would [be] dangerous, as implying that ... if any had been omitted ... they might have been considered at the mercy of the general Legislature." (In 1790, Pres. Washington appointed Iredell to the Supreme Court.)

James Wilson stated the matter at length on Nov. 28, 1787: "[W]ho will be bold enough to undertake to enumerate all the rights of the people? and when the attempt is made, it must be remembered that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted."

Virginia's George Lee Turberville, who rose to the rank of major during the Revolutionary War, agreed with Wilson in a letter to James Madison, Dec. 11, 1787: "[T]hose [rights] not specially retained might by just implication have been consider'd as surrender'd."

Those who opposed a bill of rights did not oppose the rights, they opposed the bill, on the grounds that any rights omitted would be considered void. History proved them correct (more on that later).

Those who championed a bill of rights agreed with Thomas Jefferson's letter to James Madison, Dec. 20, 1787: "[A] bill of rights is what the people are entitled to against every government on earth ... and what no just government should refuse, or rest on inference."

John Smilie served as a private in the Revolutionary War. He would later be elected nine times to the U.S. House of Representatives. In a debate with James Wilson on Nov. 28, 1787, Smilie said, "[W]hen we further consider the extensive, the undefined powers vested in the administrators of this [proposed] system, when we consider the system itself as a great political compact between the governors and the governed, a plain, strong, and accurate criterion by which the people might at once determine when, and in what instance, their rights were violated, is a preliminary, without which this plan [the Constitution] ought not to be adopted."

Richard Henry Lee, a signer of the Declaration of Independence, wrote to the Virginia Gazette, Dec. 6, 1787, warning that a bill of rights was necessary to guard against "the silent, powerful, and ever active conspiracy of those who govern."

James Winthrop was a veteran of the Battle of Bunker Hill. Signing himself as "Agrippa" in a letter to the Massachusetts Gazette, Dec. 14, 1787, he wrote, "[A] declaration of rights is of inestimable value. It contains those principles which the government never can invade without an open violation of the compact between them and the citizens."

The Framers, and those whose generational task was to ratify or reject the Constitution, wrote thousands of words in debate. The Constitution was finally ratified largely on the promise that Congress' first order of business would be to pass a bill of rights. Included were the Ninth and Tenth Amendments, written to satisfy those who feared that, if rights were omitted, those rights would be nullified.

The Ninth: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

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."

No lack of clarity. No historical mystery. The intent is crystal clear.

The Constitution exists to define and limit government.

The Constitution was never meant to define and limit you.

Your right to privacy, your right to equality before the law no matter who or what you are, your right to govern your own body, your right to carry a concealed weapon – you don't have to prove you have those rights, and they are not to be denied or disparaged. The burden is on the government to prove you don't have such rights. So say the Ninth and Tenth.

A sweeping vision of liberty, born of political oppression, violent revolution, and articulate debate – yet the Ninth and Tenth are the invisible amendments, for they are universally ignored.

From the Supreme Court on down, judges and commentators constantly make statements like that of J. Harvie Wilkinson III, a judge on the United States Court of Appeals for the Fourth Circuit: "Liberals, when it suits them, embrace rights that have not been enumerated in the Constitution. ... They have forsaken the textual and historical foundations of that document in favor of judicially decreed rights of autonomy. It is one thing to value those rights our cherished Bill of Rights sets forth. But to create rights from whole cloth is to turn one's back on law" (The New York Times, March 11, 2012).

Like many, His Honor imparts invisibility to the Ninth and Tenth Amendments, writing about the Bill of Rights as though they don't exist.

As for the Framers, both sides of their argument have proved correct: Unenumerated rights have been denied, and, if we didn't have the Bill of Rights, by now we'd be hard put to claim any rights at all.

All quotes not otherwise identified are from The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification: Part One, September 1787-February 1788, edited by Bernard Bailyn.