SocraticGadfly: The Ninth Amendment vs the Tenth Amendment

September 10, 2018

The Ninth Amendment vs the Tenth Amendment

In the Brett Kavanaugh hearings with the Senate Judiciary Committee, Rafael Cruz once again peddled his "federalism" states rights schtick. As part of that, he once again claimed or insinuated that the Tenth Amendment to the Constitution is the most overlooked one in the whole list.


If anything, the one immediately before it, and also part of the original Bill of Rights, is the most overlooked, including being repeatedly and constantly overlooked by Can't Be TrusTed Cruz.

Here's what they both say. First, the Ninth:

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

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.
Several notes.

First of all, the Ninth Amendment says: "The enumeration in the Constitution, of certain rights ..." and does not add "to the federal government." In other words, this was a form of "incorporation."

AND, anybody who knows Madison's thought, knows he wanted to "incorporate" at least part, if not all, of the Bill of Rights at that time, something that, after World War II, courts have done, albeit imperfectly and incompletely.

And, alleged constitutional law scholar Rafael Cruz knows this, too.

And, to undercut the likes of Can't Be TrusTed, the Ninth Amendment, from the list of possible Bill of Rights amendments first crafted under the lead of James Madison and approved by the House, then approved in modified form by the Senate, the approved in final form in conference to be sent to the states, ALWAYS was before the Tenth, per Wiki.

Second and a sidebar: Re Griswold v Connecticut, that provided the ultimate background for Roe v Wade that's the backstop to the Kavanaugh hearings, Arthur Goldberg, in his concurrence with William O. Douglas' opinion, actually had the correct legal stance. Rather than chasing after "penumbras" and "emanations," he went right to the Ninth Amendment. (Arguably, Whizzer White and John Marshall Harlan, in their concurrence citing the Due Process clause of the Fourteenth Amendment, were on better ground than Douglas, too, although maybe not as firm as Goldberg.) Hell, for that matter, Douglas' penumbras were better groundable on the Fourth Amendment than the Fifth. Griswold, in short, though the right ruling, had some of the worst jurisprudence of any major Constitutional ruling that was a good ruling in the 20th century.

I have no idea why Bill Douglas wouldn't modify his ruling, or even join either of the concurrences, outside of plain stubbornness, of which he had plenty.

At the same time, Hugo Black's dissent, where he specifically rejected both the Goldberg and Harlan concurrence reasoning and tried to claim that privacy needed to be an explicit right, marked HIS decline on the Court as well; actually, it marked the "outing" of his textualism.

And, sadly, this was Goldberg's last major case before LBJ booted him out to the UN Ambassadorship just to make room for his crony Abe Fortas, with that ultimately backfiring three years later.

That, in turn, beyond cronyism, at least made clear the politicization of Supreme Court nominations.

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