#33 Fall 2001

     Part 1: Brief Constitutional History

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The Ninth Amendment

Part 1: Brief Constitutional History

By Stephen Plafker

The purpose of this article is to trace and to explain the history of the concept of rights in judicial treatment. In this first part, I summarize the history of the Constitution and the Bill of Rights with emphasis on the Ninth Amendment. I will then discuss the deterioration of the way courts have treated rights over the years. Finally, I will show that this deterioration was almost inevitable without a clear, logical theory of rights and that the only solution lies in Objectivist political theory.

Why don't modern courts enforce rights?

The American Revolutionary War began on April 19, 1775 and ended on September 13, 1783. During the process of separation from England, 13 colonies became states: i.e., sovereign countries with "full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do."1 The states were held together in a loose confederation, a "firm league of friendship," under the Articles of Confederation. Under the provisions of this document, the national government was ineffective.

The new states proceeded to act like independent countries---toward each other. "They wrangled over boundaries and navigation rights. They flouted provisions of the peace treaty with Britain to restore confiscated loyalist property . . ."2 They issued fluctuating paper money, and passed conflicting trade restrictions, sometimes imposing duties and other trade restrictions---sometimes higher on fellow states than on Britain.

A number of people, especially James Madison, determined to do something about these problems. Convinced that a new form of government was required, they convinced the Continental Congress to issue a call for a convention to be held in Philadelphia during the summer of 1787 to amend the Articles of Confederation.

The convention worked throughout a long, hot, humid Philadelphia summer and, in what George Washington declared to be "little short of a miracle," produced the Constitution of the United States. Under Article 7, "The ratification of the Conventions of nine States, shall be sufficient for the establishment of this Constitution between the States so ratifying the same." In practice, however, the government would very likely fail unless all the larger states ratified.

There were, as always, those who were opposed. These opponents worked to defeat the Constitution in the state conventions. Chief among the arguments against the Constitution was a complaint that the

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Constitution did not contain a Bill of Rights.3

The Constitution's proponents divided their reply into several parts.4 First, they pointed out that some of the state constitutions had no bills of rights, and that freedom in those states had not suffered. Second, they referred to some protections already in the Constitution.5

Their primary position was that a bill of rights is unnecessary in the kind of government provided for in the Constitution. Two arguments were advanced for this position. The first distinguished between a monarchy and a republic. In the words of Alexander Hamilton:

      It has been several times truly remarked that bills of rights are, in their origin,
      stipulations between kings and their subjects, abridgements of prerogative in
      favor of privilege, reservations of rights not surrendered to the prince. . . .
      It is evident, therefore, that, according to their primitive signification, they have
      no application to constitutions professedly founded upon the power of the people,
      and executed by their immediate representatives and servants. Here, in strictness,
      the people surrender nothing; and as they retain every thing they have no need
      of particular reservations. "WE, THE PEOPLE of the United States, to secure
      the blessings of liberty to ourselves and our posterity, do ORDAIN and
      ESTABLISH this Constitution for the United States of America." Here is a
      better recognition of popular rights, than volumes of those aphorisms which
      make the principal figure in several of our State bills of rights, and which would
      sound much better in a treatise of ethics than in a constitution of government.

The second argument was based on the fact that the new government was one of delegated powers: its only powers were those mentioned in Article I of the Constitution. And none
of the granted powers allowed the government to violate rights. Indeed, it was argued, a bill of rights would be dangerous: should any right be overlooked, this would give the government a pretense to violate that right. Hamilton further states:

      I go further, and affirm that bills of rights, in the sense and to the extent in which
      they are contended for, are not only unnecessary in the proposed Constitution,
      but would even be dangerous. They would contain various exceptions to
      powers not granted; and, on this very account, would afford a colorable pretext
      to claim more than were granted. For why declare that things shall not be done
      which there is no power to do? Why, for instance, should it be said that the
      liberty of the press shall

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      not be restrained, when no power is given by which restrictions may be imposed?
      I will not contend that such a provision would confer a regulating power; but it
      is evident that it would furnish, to men disposed to usurp, a plausible pretense
      for claiming that power. They might urge with a semblance of reason, that the
      Constitution ought not to be charged with the absurdity of providing against
      the abuse of an authority which was not given, and that the provision
      against restraining the liberty of the press afforded a clear implication, that a
      power to prescribe proper regulations concerning it was intended to be
      vested in the national government.7

As a summary, Hamilton argued:

     The truth is, after all the declamations we have heard, that the Constitution is
      itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS . . . .
      Is it one object of a bill of rights to declare and specify the political privileges of
      the citizens in the structure and administration of the government? This is done
      in the most ample and precise manner in the plan of the convention;
      comprehending various precautions for the public security, which are not to
      be found in any of the State constitutions. Is another object of a bill of rights
      to define certain immunities and modes of proceeding, which are relative to
      personal and private concerns? This we have seen has also been attended to,
      in a variety of cases, in the same plan.8

Finally, the proponents pointed out that a bill of rights could be added to the Constitution by amendment.

The Constitution was ratified by 11 states. A number of the ratifying states, concerned over the issue, proposed that a bill of rights be added by amendment. At the first Congress, James
Madison offered nine resolutions to amend to the Constitution as requested by the hesitant states. He addressed the objections to a Bill of Rights as follows:

     I admit that these arguments are not entirely without foundation; but they
      are not conclusive to the extent which has been supposed. It is true, the
      powers of the General Government are circumscribed, they are directed to
      particular objects; but even if Government keeps within those limits, it has
      certain discretionary powers with respect to the means, which may admit of
      abuse to a certain extent, in the same manner as the powers of the State
      Governments under their constitutions may to an indefinite extent; because
      in the constitution of the United States, there is a clause granting to
      Congress the power to make all laws which shall be

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      necessary and proper or carrying into execution all the powers vested in the
      Government of the United States, or in any department or officer thereof, this
      enables them to fulfil every purpose for which the Government was established.
      Now, may not laws be considered necessary and proper by Congress, for it
      is for them to judge of the necessity and propriety to accomplish those
      special purposes which they may have in contemplation, which laws in
      themselves are neither necessary nor proper; as well as improper laws could
      be enacted by the State Legislatures, for fulfilling the more extended objects
      of those Governments. I will state an instance, which I think in point, and proves
      that this might be the case. The General Government has a right to pass all
      laws which shall be necessary to collect its revenue; the means for enforcing
      the collection are within the direction of the Legislature; may not general
      warrants be considered necessary for this purpose . . . .

As to the problem that certain rights may be overlooked, Madison said:

     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 [which read:]

     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.

Congress modified Madison's resolutions and sent them to the states for ratification. The last clause of Madison's fourth resolution became the Ninth Amendment:

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

Thus, it is clear that the Constitution was designed to advance the sole purpose of government: "to secure . . . rights."9 And that no rights should be omitted. Given this history, why do American governments today think their main function is to violate rights?

Answer to follow.

References and Notes:
1. Declaration of Independence

2. William Peters, A More Perfect Union, Crown Publishers 1987

3. This complaint arose early in the debates on ratification. One typical example came from one "Z": "Those among us who cannot entirely approve the new Constitution as it is called, are of opinion, in order that any form may be well administered, and thus be made a blessing to the people, that there ought to be at least, an express reservation of certain inherent unalienable rights, which it would be equally sacrilegious for the people to give away, as for the government to invade. If the rights of conscience, for instance, are not sacredly reserved to the people, what security will there be, in case the government should have in their heads a predilection for any one sect in religion? what will

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hinder the civil power from erecting a national system of religion and committing the law to a set of lordly priests, reaching, as the great Dr. Mayhew expressed it, from the desk to the skies? An Hierarchy which has ever been the grand engine in the hand of civil tyranny; and tyrants in return will afford them opportunity enough to vent their rage on stubborn hereticks, by wholesome severities, as they were called by national religionists, in a
country which has long boasted its freedom. It was doubtless for the peace of that nation [England], that there should be an uniformity in religion and for the same wise and good reason, the act of uniformity remains in force to these enlightened times." "Z", in the Independent Chronicle (Boston), December 6, 1787 (italics in original).

4. The arguments are associated primarily with James Wilson and Alexander Hamilton. The latter was the author of The Federalist Number 84 which is extensively quoted below.

5. These include limitation on impeachment powers and treason prosecutions, the protection of the Writ of Habeas Corpus, prohibition of bills of attainder and ex post facto laws, the prohibition against titles of nobility, and preservation of the jury trial in criminal cases.

6. The Federalist Number 84 (capitals in original)

7. Id.

8. Id. (capitals in original)

9. Declaration of Independence. See, Ayn Rand, "The Nature of Government" in The Virtue of Selfishness and Capitalism: The Unknown Ideal


The Second Amendment case, United States v. Emerson1 discussed in the TAFOL Bulletin of Winter 2001, was appealed to the Fifth Circuit Court of Appeals.2 The Federal District Court had held that the Second Amendment guarantees an individual right as opposed to a "collective right"3 to bear arms and, based on this holding, it dismissed an indictment charging that one Timothy Joe Emerson had violated a court order prohibiting him from possessing a firearm.

The action of the Appeals Court is confusing. On one hand, most of the majority opinion was spent agreeing with the District Court that the Second Amendment does indeed confer an individual right. Nevertheless, the Court reversed the District Court's decision as follows:

     We agree with the District Court that the Second Amendment protects the
     right of individuals to privately keep and bear their own firearms . . . However, . . .
     we also conclude that the [order Emerson was charged with violating] is
     sufficient, albeit likely minimally so, to support the deprivation, while it remains
     in effect, of the defendant's Second Amendment rights.

Thus, most of the opinion was dicta, i.e., legal discussion with no effect on the result. This aspect was properly condemned by a concurring judge:

     No doubt the special interests and academics on both sides of this debate will
     take great interest in the fact that at long last some court has determined
     (albeit in dicta) that the Second Amendment bestows an individual right.
     The real issue, however, is the fact that whatever the nature or parameters
     of the Second Amendment right, be it collective or individual, it is a right
     subject to reasonable regulation. The debate, therefore, over the nature
     of the right is misplaced.

That a right can be subject to "reasonable regulation" is standard in modern jurisprudence. The case was appealed to the United States Supreme Court but was denied review. The dicta

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make a very good argument for the Second Amendment but it has no legal effect, and thus the case leaves this issue of individual rights unsettled.

References and Note:
1. 46 F.Supp.2d 598 (N.D. Tex. 1999). See <sorry internet link bad>

2. Court of Appeals, Fifth Circuit, No. 99-10331 (decided November 2, 2001). See
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3. The "collective right" theory holds that any right found in the Second Amendment is a right held by the state or by the people collectively and cannot be asserted by an individual.

Copyright © 2002 The Association for Objective Law. All rights reserved. The Association for Objective Law is a Missouri non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system.