The Bill of Federalism: Amendment #9

I mentioned at the start of this series of postings that the Bill of Federalism is a stronger alternative to "Tenth Amendment resolutions" and the like. In the ninth proposed amendment of the Bill of Federalism, the subject of the Ninth and Tenth Amendments of the US Constitution -- the rights retained by the people -- is directly addressed via two related prongs…

1. In terms of substance, the ninth proposed amendment erases any doubt that the Constitution protects "fundamental" rights, such rights to life, liberty and the pursuit of happiness, from governmental infringement, in the same way that enumerated rights in the Bill of Rights are protected.
2. In terms of process, the ninth proposed amendment specifies "due process" as meaning that the government in defending its actions has the burden of proving that it has acted in conformity with its powers as granted by the Constitution and that it is not infringing on the fundamental rights of any citizen, which is different from the process that exists now.

The text of the ninth proposed amendment states...

Section 1. All persons are equally free and independent, and have certain natural, inherent and unalienable rights which they retain when forming any government, amongst which are the enjoying, defending and preserving of their life and liberty, acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety.

Section 2. The due process of law shall be construed to provide the opportunity to introduce evidence or otherwise show that a law, regulation or order is an infringement of such rights of any citizen or legal resident of the United States, and the party defending the challenged law, regulation, or order shall have the burden of establishing the basis in law and fact of its conformity with this Constitution.

There is a long, technical but interesting, and very important legal history behind the need for this amendment. If you were allowed just two sentences to describe that history, you'd be hard pressed to do better than the Bill of Federalism's author, Georgetown University Law Professor Randy Barnett, has done with these…

The Constitution that was actually enacted and formally adopted creates islands of government powers in a sea of liberty. The judicially redacted Constitution creates islands of liberty rights in a sea of governmental power.

His more detailed explanation of the specific need the ninth proposed amendment, as explained on the Bill of Federalism website, is as follows…

The existing Ninth Amendment says that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Section 1 of this proposal elaborates on the original meaning of "rights . . . retained by the people" with language that is adopted from the wording of amendments proposal to the first Congress by state ratification conventions and by James Madison, and from the very similar wording found in several state Constitutions at the time of the Founding. For example, the constitution of Pennsylvania read: "That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." Likewise, the Civil Rights Act of 1866 protected the right of any citizen "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property. . . ."

Section 2 corrects the current approach of the Supreme Court that precludes citizens and legal residents from contesting the necessity and propriety of restrictions on their retained rights unless the Court deems the right in question to be "fundamental" and provides all liberties with the same type of protection now accorded the rights of freedom of speech, press, and assembly, and the right to keep and bear arms.

Though I have nominated the fourth proposed amendment as the Federalism Amendment I would choose if I could add a single one to the Constitution right now, you can make a solid case that this amendment is actually the most important of the group.

Links to the earlier proposed amendments are below the fold...

• Article VIII:Budget-balancing powers of the President
• Article VII: Term limits for Senators and Congressman
• Article VI: States allowed to repeal acts of Congress
• Article V: Reaffirming the freedom of expression
• Article IV: Treaties are not a basis for governing within the US until their provisions are explicitly written to law
• Article III: Limits on unfunded mandates and on conditions applied to Federal disbursements to states
• Article II: Limiting Federal Powers under the Interstate Commerce Clause
• Aritcle I: Reconstituting the Taxing Power of the Federal Government