A long time ago in a blogosphere far, far away, I attempted a series reviewing the Bill of Rights, one amendment at a time, to show how each had been abused over the years. I abandoned the project after six installments, in part because I began to see how much I still needed to learn about the history, and in part because the exercise was so discouraging.
None of the first 10 constitutional amendments gets anything more than lip service these days, and after years of disuse some of them do not even have popular support.
The ninth and 10th tenets of the Bill of Rights (L. Neil Smith argued it should have been named the more accurate “Bill of Limitations”) are especially swept under the carpet in any discussion of “constitutional rights,” also a misnomer because the Constitution is not the source of rights; rather it is a list of some of the rights that the gummint has no fricking right to curtail. People’s rights are, as eloquently stated in the country’s founding document, “certain, unalienable,” and “endowed by their Creator.”
To drive home that point, Amendments Nine and Ten declare, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” and “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.”
In other words, this list of people’s rights is just a bunch of things the government can’t infringe, and oh by the way, if we didn’t mention one of the other rights here, then that authority may (or may not) be assumed by the separate states, and if the state doesn’t want to curtail that right, then the people are free to have at it.
You say something “is not in the Constitution”? Oh yes, it is, right here in Amendments Nine and Ten. That’s where it says specifically, “Hands off, feds, that ain’t none of your business, either.”
Now, of course, a lot of this was changed between 1861 and 1865, when a war was waged over whether states have a right to go their separate ways, and the central government declared it had the power to overrule any such notion. But the discussion continues to this day.
Once upon a time, the words “state” and “country” were somewhat interchangeable. The original idea, I believe you’ll find, as that the 13 former colonies formed a federation of independent nations; you might have called it the United Nations. That’s why you’ll find references to some of the Founders being “Virginians,” for example, rather than “Americans.”
Only after a very long time did the notion emerge that these united countries were actually one big hairy country. Breaking away would be like if one of the nations in the European Union decided it didn’t want to participate anymore and the EU moved heaven and earth to try to prevent such a secession. At least they didn’t go to war over it in these more civilized times.
It behooves those of us who still read the Bill of Limitations to be more active in pointing out, “You can’t do that” or, at least, “You’re not supposed to be able to do that,” whenever Congress or some more petty dictator makes a move that violates the principles. The exhausting part of that endeavor, of course, is that both the individual states and the Federation have gone so far beyond the limits that a day doesn’t pass without violations galore.
Still, it couldn’t hurt to start asking, for example, “What part of ‘shall not’ do you folks not understand?” or even examine those words “delegated” and “prohibited” in the Tenth Amendment. Because as I have always understood those words, the higher power is not vested in Washington but in 50 other cities scattered here and there with names like Trenton and Pierre and Cheyenne and (God help us) Sacramento. And from the very first words — “We the People” — we get our best sense of who exactly is supposed to be doing the delegating and prohibiting.
Maybe the horse has been out of the barn for so long that it’s had time to procreate many generations of horses, but maybe it wouldn’t do much harm (and maybe could help a little) to start chasing down that horse and see what can be done about reining it back in.