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NINTH AND TENTH AMENDMENTS

What rights does the Ninth Amendment protect?

The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It means that there are other rights retained by the people even though they are not specifically listed, or enumerated, in the Bill of Rights.

One common objection to the Bill of Rights was that listing, or enumerating, certain rights in the Bill of Rights would mean that those were the only rights the people possessed. To answer this concern, James Madison adopted the Ninth Amendment which implies that people retain other rights not specifically listed in the Bill of Rights. For 175 years, the Ninth Amendment was, in the words of one Supreme Court Justice, a "constitutional curiosity." However, in the 1965 case involving marital priva-

LegalSpeak: Griswold v. Connecticut (1965)

Justice Arthur Goldberg (concurring): "The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever."

cy, Griswold v. Connecticut (see LegalSpeak, p. 82), Justice Arthur Goldberg revived the amendment and said that it protected a right to privacy.

What is the Tenth Amendment?

The Tenth Amendment provides: "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." It is the only amendment in the Bill of Rights that does not focus solely on protecting an individual right. Rather it limits the power of the federal government vis-`-vis the state governments. It ensures that the federal government does not operate like a super-state government and supersede all state powers. In other words, the Tenth Amendment seeks to "reserve" some powers for the states and reaffirms the basic notion that the federal government is a government of enumerated (listed) powers, not unlimited powers.

Courts often refer to the concept of "dual sovereignty" when mentioning the Tenth Amendment, because it is a key provision in creating a federal system of government in which power is often shared between the federal and state governments.

Periodically, the news media, political pundits, and others refer to "states' rights" usually as a claim that the federal government is encroaching upon the states' domain. The constitutional hammer for those who advocate for states' rights is the Tenth Amendment.

What type of law creates a Tenth Amendment issue?

Any time that the federal government passes a law or regulation that requires state or local government officials to administer a federal program, there is an argument that the Tenth Amendment comes into play. The U.S. Supreme Court explained the principle quite bluntly in New York v. United States (1992) that dealt with a federal law imposing requirements on states with respect to the disposal and cost for disposing of radioactive waste: "The Federal Government may not compel the States to enact or administer a federal regulatory program."

What is an example of power that should be "reserved" to the states under the Tenth Amendment?

The U.S. Supreme Court has ruled that much legislation dealing with the regulation of guns is a power properly reserved to the states. In Printz v. United States (1997), the Court struck down parts of a federal law that required local officials to conduct background checks on individuals purchasing handguns. The Court ruled that, under the Tenth Amendment, the federal government could not force the states to administer this federal program because it infringed on an area "reserved" for the states under the Tenth Amendment.

The U.S. Supreme Court has determined that gun laws for citizens should be mostly regulated at the state level (iStock).

The U.S. Supreme Court has determined that gun laws for citizens should be mostly regulated at the state level (iStock).

What does the Tenth Amendment have to do with the concept of federalism?

Federalism refers to the division of power between the federal and state governments. Members of the United States Supreme Court vehemently disagree over the proper conception of federalism. The Tenth Amendment plays a large role in federalism by specifically referring to the principle that certain powers not given to the national, federal government are "reserved" to the states.

 
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