Earlier, I made the statement that “most of the rights enumerated in the Bill of Rights, including the 2nd Amendment, did not (and do not) require these amendments in order to be protected rights.” Remember that? I had you re-read it. There was great debate about the Bill of Rights and whether or not they should be in the Constitution at all. It was basically an argument between the Federalists (such as Alexander Hamilton, James Madison, and John Jay), who were big proponents of the new Constitution, and the Anti-Federalists (such as Patrick Henry, George Clinton, & George Mason), who were very leery of the new Constitution. They believed it was giving too much power to a central government and would eventually erase States’ power and erode the people’s liberties. The Anti-Federalists refused to support the Constitution without a Bill of Rights to specifically protect various natural rights (and some civil rights) of the people. On the other hand, the Federalists insisted that the Bill of Rights was not needed because, by design, all of these rights were already protected, as none of the enumerated powers given to the federal government allowed for infringing on them in any way. The Federalists further argued that if we include a Bill of Rights that only listed certain rights, then it would be erroneously interpreted that these were the ONLY rights that are protected.
The Anti-Federalists refused to give in. They simply did not trust a powerful central government to not eventually do what men do and attempt to obtain power in any way they can, finding ways to twist the words and manipulate the system which would result in the loss of our rights. So they demanded that certain rights, which they deemed most critical, be explicitly spelled out in the Constitution. The Federalists, realizing that they were not going to win this particular battle and ratification was in danger of failing, relented and agreed to support adding the Bill of Rights as amendments to the Constitution, but only AFTER the Constitution was ratified. The Anti-Federalists trustingly, albeit reluctantly, supported the ratification of the Constitution enough to get it passed.
The Federalists, true to their word, proceeded to support the Bill of Rights during the first term of congress, with James Madison leading the way. However, to alleviate their objections to it, the 9th and 10th Amendments were included:
9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment confirms the fact that the Constitution is not the source of our rights and whether or not the right is specifically enumerated in the Constitution, originally or by amendment, the federal government does NOT have the power to create any laws that would infringe on those rights. For example, consider the right to move freely and live where we choose. We do not see this right specifically listed in the Bill of Rights or elsewhere in the Constitution. Based on the 9th Amendment, the federal government cannot simply deny we have this right because it is not listed in the Constitution, and then create a law that determines we will all live where they assign us to (although I wouldn’t put it past them to try).
10th 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.” This amendment emphasizes the point that the federal government has very limited powers that do not exceed those specifically enumerated in the Constitution. It was included to protect the Federalism aspect of the system (powers shared between the national government and the state governments) and guard against the fears of the Federalists that by listing special protections in the Bill of Rights would encourage some to interpret that as implying EVERYTHING else was within the power of the federal government.
As it turns out, they were both right.
The Anti-Federalists were right in that over the years the words and intent of the Constitution have been twisted and manipulated such that the federal government seems to not be limited at all to the specific, enumerated powers granted by the people. Certain clauses in the Constitution have been interpreted in very liberal ways such that it now seems to be in the federal government’s power to do anything it deems “necessary and proper” for the “general welfare”, a huge stretch to the true meaning and intent of the Constitution (more on that in future essays).
At the same time, the Federalists were right in their concerns that if we list specific rights protected in the Constitution, then it will be generally viewed that those are the only rights protected. If you ask most people, you’d probably find that misunderstanding is generally held, regardless of the 9th Amendment. We hear, almost on a daily basis, such things as if there were just no 2nd Amendment, then the federal government could do whatever they want to ban guns, vindicating the Federalists in their concerns.
The concept of natural rights is one of the main principles underlying the Constitution and our Republic, which were created not to grant us these rights, but rather to protect them. Being able to distinguish between our natural rights, our civil rights, and the progressive “human rights” (and understanding the differences) is crucial in understanding our liberties and how these distinctions relate to most issues that we debate.