Posted by
Glenn Flowers on Thursday, June 18, 2009 6:27:16 PM
The Ninth and Tenth ammendments to the Constitution have always been considered by the People as being a guarantee against an abuse of power by the federal government. They read as follows:
Ninth Ammendment -- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth Ammendment -- 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.
They seem to be fairly straight forward and unambiguous in what they say. As I read them, the federal government can not exercise any power not given to it by the Constitution, and if it is not given there the states or the people retain those rights for themselves. The government has only the powers spelled out, and no more. That is the way I believe most people would interpret them.
But, as is the case with most questions of points of law, there have been court decisions that have supported a simple interpretation, and rulings that take a more creative and complex approach in interpreting meaning. The acceptance and application of one or the other of these methods by a current court is not consistent but wavers to and fro over time and is the cause of much or all ignorance and confusion on the subject.
There exists precedent that allows the feds to assume powers not granted to them, as well as precedent preventing any use of power not specifically granted. On one hand, the last paragraph of Article One, Section Eight gives Congress the power to, "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof. "
That paragraph has been used by the courts to give Congress powers not specifically enumerated. On the other hand courts have made decisions based on a simple and strict reading of these ammendments such my opinion above. The people have no way of knowing these opposing precedents exist, but even if they did, they could not be confident in any court ruling a certain way because there is legal standing for the courts to rule this way or that.
The existence of precedents supporting opposing rulings renders these two ammendments meaningless. This is the case with all the limitations and grants of powers to the federal government written into the Constitution. The courts have an open buffet of past decisions on every question, custom made for whatever situation arises.
If I had the opportunity to propose a single ammendment to the Constitution, I would propose that there be a grand jury type civilian review of all SCOTUS decisions. This jury would be selected randomly and neither the SCOTUS nor the jury would know, before hand, the duty they were being dealt, and this duty would not be divulged until they had completed their work. If, in the future, the decision of that jury was found to be in contention with the Constitution, the previous decision would be superceded rather than be allowed to coexist.
The coexistence of opposing rulings as precedent renders the entire Constitution useless.
Glenn Flowers