12 September, 2008

The Candidates and the Ninth Amendment

This is the thirty-first post in an ongoing series regarding the major Presidential candidates and their views on civil liberties.

This post is about Senator John McCain's (R-AZ) and Senator Barack Obama's (D-IL) views pertaining to the Ninth Amendment of the Bill of Rights. Both the Ninth and the Tenth Amendments are sometimes referred to as "the forgotten Amendments". Conservatives tend to forget about the Ninth more often and liberals tend to forget about the Tenth. I think many people regard the two amendments as in opposition to each other. But it's my opinion that they form a powerful tandem when viewed together.

I'm going to do one post on each, but I want to go over the text of both and what they mean together, first.

Here's the text of the Ninth Amendment:

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

And here's the text of 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.

Before we get to analysis, I want to look at the purpose behind the Ninth. Originally, when the Bill of Rights was proposed, many of the Founding Fathers argued that such a document was unnecessary, and in fact, harmful. They felt that to put forth a list of rights of the people was to imply that these rights were granted by the government and not inalienable. They also felt that by listing these rights, an implication was made that other rights didn't exist.

Our founders were proven correct. How often do you hear people discuss the rights they've been given or granted by the Bill of Rights? Often. Even our illustrious news people make this mistake often. The Bill of Rights is set up to guard rights you already have, not grant new ones.

Now, why do I bring up both the Ninth and Tenth together? Here's an example. If you've been following along and paying attention to the items that discussed voting rights, you may have noticed that there is no protected enumerated right to vote in Presidential elections. The Ninth Amendment tells us that just because such a right isn't listed, doesn't mean we don't have it. But, the Tenth Amendment tells us that the States themselves have the power to deny or protect this right as they choose. States rights was a big item for our founders. It's only recently that this country has been called "the United States of America". In the founders time it was "these United States of America". That's an important difference.

So, how do we analyze how the candidates feel about these amendments? Well, in the case of the Ninth, we should look at whether the candidate feels that there's some non-enumerated right that does not exist and should be denied. The Tenth is easier. We just look for usurpation of state powers by the federal government.

My explanation of how to analyze the Ninth probably doesn't make much sense. Another example might help. You will often hear that issues such as abortion rights, gay rights, and privacy rights are protected by the Ninth Amendment. In my opinion that's only half right. The Ninth merely says that a person may have those rights. The Tenth Amendment says that such decisions are left to the states or the people.

So, if a candidate says that there's no federal right to gay marriage and that means that gays can't marry, he's attacking the Ninth Amendment. But if that candidate says that there's no federal right to gay marriage, and that the states themselves need to make that decision, he's not attacking the Ninth Amendment. On the other hand, if the candidate says that by virtue of the Ninth Amendment, there is a federal right to gay marriage, he's attacking the Tenth Amendment.

So, now we see how liberals and conservatives view these differently. Liberals forget all about the Tenth Amendment and want to use the Ninth Amendment to invent new rights out of whole cloth. While conservatives want to pretend that the Ninth Amendment doesn't exist and say that none of these rights exist.

This applies even more so to the various lefty and righty blogs out there where you see claims that various rights are guaranteed by virtue of the Ninth, or that these rights have no constitutional basis whatsoever.

I've left these two amendments for the last topics to be covered in hopes that I would discover information along the way that would tell me how the candidates feel about them. I was not as successful as I'd hoped.

Out of all the things that I covered, only one appears to be in direct conflict with the Ninth Amendment, and that's Obama's views on Card Check. Even this one is tenuous, because you could certainly argue that the right to secret ballot in union elections has nothing to do with any level of the government, state or federal. McCain gets a pass on Abortion Rights, Gay Rights, and Legalization of Drugs because he remembers to invoke the Tenth Amendment when discussing these issues. Not that either candidate does particularly well on the Tenth, as we will see.


Obama: B-. We start at B because there's little info that Obama even realizes that such an amendment exists, and dock him once for Card Check.

McCain: B. He gets to keep his B because he's on the right side on Card Check.

Ninth Amendment: Advantage McCain

Results so far:
Obama McCain
First Amendment F D-
Second Amendment D- C-
Third Amendment B B
Fourth Amendment D+ D+
Fifth Amendment D+ B-
Sixth Amendment B B
Seventh Amendment C C
Eighth Amendment C B
Eleventh Amendment B+ B-
Thirteenth Amendment D+ B+
Fourteenth Amendment D+ C+
Fifteenth Amendment B B
Nineteenth Amendment B B
Twenty-First Amendment A- A-
Twenty-Third Amendment A- B
Twenty-Fourth Amendment B B
Twenty-Sixth Amendment B B
Taxes D B-
Abortion A+ D
National ID F F
Voter ID A+ F
Card Check F A+
Legalization of Drugs D+ F
Gay Rights A- D
Hate Crime Legislation F C
Growth of Government F A-
Property Rights B- A
Sovereign Rights C- B-
Ninth Amendment B- B

UPDATE: Obama's First Amendment grade lowered to F as documented in this post.

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