Skip to main content

Legal Features

Neglected Check to Federal Power

BY ROBERT F. MCDONNELL
From the Freelance Star

The Ninth Amendment to the U.S. Constitution reads very much like a recently discovered, long lost classic by a famous author. When one reads it, the initial reaction usually falls within the range of "I didn't know that was there."

That reaction is no doubt the result of the amendment's being rendered virtually useless after years of encroachment by the federal government and the ever-fading concept of federalism. The history of the Ninth Amendment, however, shows how critical it was to our Founders and how necessary it was to secure the ratification of our Constitution.

The Ninth Amendment finds its roots in the American Revolution.

When Thomas Jefferson penned the immortal words justifying our cause in the Declaration of Independence, he set out carefully the "self-evident" truths on which our freedoms are based.

First, that all men are created equal and endowed by God with unalienable rights, such as life, liberty, and the pursuit of happiness.

Second, that because historically there were always those who would attempt to limit or remove these rights from free men, governments are necessary to "secure these rights." Such governments would derive their "just powers" from the consent of the governed and would justify their own existence only to the extent that they did not themselves become destructive of the rights of the citizen.

Thus did Jefferson detail two fundamental principles of our Founders: the primacy of the individual and the knowledge that unchecked governments have a tendency to subvert those rights.

These principles came immediately to the forefront when the Constitution came before the states for ratification. The Colonial leaders' natural distrust of centralized power - all too reminiscent of George III - seemed to lurk within the words of the proposed Constitution.

PATRIOTS BALK

Thus, Patrick Henry called for insertion of "a general positive provision securing to the states and the people every right which was not conceded to the general government." George Mason supported Henry, stating that the Constitution needed "some express declaration asserting that rights not given to the general government were retained by the states."

And Edmund Randolph - the first attorney general of Virginia and soon to be the first attorney general of the United States - undertook such leadership on the issue of "gradual accessions" of federal power that Virginia's ratification of the Constitution hung on this one issue.

For almost two years a flurry of letters and articles passed between the giants of our history: Randolph to George Washington; Washington to James Madison; Mason to Washington; Madison to Thomas Jefferson. During the same time, numerous state conventions made similar observations, all centering on limiting federal power.

Jefferson again summed up for his countrymen the dilemma.

"It had become an universal and almost uncontroverted position in the several States," he wrote Noah Webster, "that the purposes of society do not require a surrender of all our rights to our ordinary governors; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove."

It fell to James Madison to protect the promise of limited government born with the victory at Yorktown. Madison conceded the points made by Henry and Mason - namely, that the Constitution had been ratified with the understanding that enlargement of federal power was prohibited.

Madison thus crafted an amendment unique among the others. The Ninth Amendment is the only amendment that solely concerns constitutional interpretation. Its roots are in the history of our struggle for independence and the principles our Founders outlined in the Declaration of Independence.

'L' IS FOR 'LIMITS'

The federal government, Madison argued, is one of limited enumerated powers. All other powers remain with the states. Should those federal powers be expanded by a broad reading, for instance, of the "necessary and proper" clause - no area of rights would be safe from federal encroachment.

No Founder - and no state - believed that federal authority should have such expansive, limitless power. Thus the Ninth Amendment - in conjunction with the Tenth - limits federal authority and establishes our federalist system of government.

In the words of the Ninth Amendment, one can clearly see the application of the fundamental truths of the Declaration of Independence. That amendment declares to posterity that government is not the source of rights. And if a government is not the source - or creator - of rights, it cannot deprive free citizens of those rights. The Constitution may be a thorough statement of rights - but the Ninth Amendment declares that it is not an exhaustive statement of rights.

So we the people have the individual rights to travel, to educate our children in the manner we deem best, to pursue an occupation of choice, to marry and rear children. More important, we have the right to tell the federal government when it has stepped beyond the bounds of the Constitution and treaded on the rights never yielded to its authority.

A few years ago, a judge stated at a confirmation hearing that the Ninth Amendment had no meaning in today's America. While the Ninth Amendment has been neglected by scholars and courts, I believe that all the words of our Founders are as relevant and vital today as they were over 200 years ago.

They have been preserved for us by patriots from Yorktown to Baghdad, and we owe it to our history and our posterity to daily renew their promise.

The Ninth Amendment - almost more than any other - belongs to the people. Its promise and potential can yet be fulfilled.

McDonnell is attorney general-elect of Virginia.

Donate