On June 8, 1789 the little man with big thoughts, James Madison, rose from his seat to address Congress.
The Bill of Rights.
Madison methodically went down his list explaining each item. Toward the end noting “the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act” he began to conclude. Before he could finish he needed to address an issue.
The issue was a problem people had with this list of “Thou shalt not’s” directed to the federal government. The Bill of Rights was not and on a practical level could never be comprehensive. So what about rights not listed? The objectors asked. Would they fall into the hands of the federal government? Madison responded by saying,
”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."
The “last clause of the fourth resolution” was this:
“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.”
This would become the Ninth Amendment which would say:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
You see, the state representatives wanted to be clear—crystal clear. They further wanted to specify that the powers not enumerated would reside with the states. Seemingly an obvious thing ("superfluous" said Madison) but let there be no dispute, the states said. So—they added the Ninth’s companion the Tenth Amendment.
“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.”
This was the vast reservoir of rights explicitly left, not to the federal government, but to the people through the power of the states. The Framers thought it was impossible to make it any clearer. Now years later, we see the insidious way the sands of time can cover even the most prominent of markers.
One hundred and seventy-six years after Madison rose to speak, in the case GRISWOLD V. CONNECTICUT the Supreme Court would quote the Ninth Amendment to remarkably do the precise opposite of what the Ninth tried to make crystal clear: The federal government cannot touch the reservoir of rights. If an unenumerated right was to be found and made into law and otherwise enlarged or restricted it would be done by the people through the states. The federal Supreme Court invalidating the state law was, not shockingly, considered a “broadening of the power of the Court”. Not to worry, said the Court.
“In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people"
Who becomes the discoverers and then subsequent arbiters of what the “traditions and collective conscience” of the people would be? Would it be the representative of the people in the states? Or even the representatives of the people at the previously forbidden federal level? Is this republicanism or is this an oligarchy? Who is creating the law here?
Five to nine people have waded into the deep waters of the reservoir and standing there along the edge like ministers of the Gospel in their black choir robes, they decide who should be baptized and who is, well, not worthy.
Has the ill effects of time slowly doomed the American experiment?
Tyranny, Tocqueville warned, need not announce itself with guns and trumpets. It may come slowly. So slowly that we will barely notice when we become one of those countries where there are no citizens but simply subjects. So quietly that a well-intentioned foreigner might say, “Maybe you should do something about your oppression.” And we would look up confused and say,