Academic Thesis — Ted Cruz, Princeton University Undergraduate Thesis (1992)

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CLIPPING THE WINGS OF ANGELS The History and Theory behind the Ninth and Tenth Amendments of the United States Constitution by Ted Cruz '92 DEI SVB NVMINE VICET Princeton University Generated by CamScanner from intsig.com

e = Clipping the Wings of Angeis 2 The History and Theory behind the Ninth and Tenth Amendments = of the United States Constitution 5 s =c 5. Ted Cruz ‘92 g meo a2 Zz ° S J 3 1 85 | = A Thesis Submitted to : Wo Professor Robert George LP in partial fulfillment of the requirements for graduation from / The Woodrow Wilson Schoolof Public and International Afaixs Princeton University April 2, 1992 I pledge on myhonorthatthis represents my own work in accordance with Princeton University regulations. i /

Clipping the Wings of Angels Table of Contents seen Original housed in Princeton University Library. No copies may be TABLE OF CONTENTS Table of Contents eck: Ging hy Ba Kya @ Gane Sati 3 Acknowledgements. | | “Clipping the Wings of Angels” . Chapter One: The Nature of Rights and Powers 2 2. 2... ww 4 Powers and Rights: Their Meanings Natural Law vs. Constitutional Rights 4 © 4 eo eS 8 Constitutional Rights: Federal NorPowere ee Sb SB. Se en “Oo 2 The Bil of Rights Debste 2 te 16 Rightsin RelatontoPower fw dw ww wl, 18 Chapter Two: The Debates over the Constitution 2 Original Intens CBD Sw Roeder, a. eS 2 2 The Articles of Coedederanon, ‘ ee or eo woe eg ae Se oe Se ee 26 3 The Fevteraliats ard The Anti-Federstise: Ceneral Pralosephies x Z The Federalist: and The Ann-Pederalisns: The fall of Rophts 38 Chapter Three: Ratification and the Bill of Rights 50 The StateConvento -. &® The Bul of Rights in Comgrees : (8a Sw Be w He ¢ 53 Congressional Debate on the Nisah and Tenth Amerctments 6 Chapter Four: The Amendments inthe Courts dd, 67 A Brief Review of Judicial Interpretation The Ninth A Brief Review of Judicial Interpretation. The Tenth 67 76 Chapter Five: The Meaning of the Ninth and Tenth . Bu % & 86 The FourwenthAmendment. 6.0. -+s & ‘ The Meaning of the TenthAmendment. ‘ 4 ; The Meaning of the NinthAmendment. 2 0 0 0 0 Do, % ; Bibliography a

Clipping the Wings of Angels | ™ ACKNOWLEDGEMENTS 1 would like to thank all of the people who have helped me and cared so much as I have been laboring with my “child ~ Truly, 1 feel I have given birth. I would like to thank the Woodrow Wilwn School Librarian, Laird Klingler for his assistance in research, and all of my friends for putting up with me through mytrials. To Shorty, Simpson. Eugene, and Misi-—thanks for not killing me! To Coleman, we have labored together, “spheres towards the wall, Oedipus.” To Daniel, for serving as intellectual backboard, And to David, a friend like a brother, thanks for being there for me when I need you. 1 would also like to thank Professor Walter Murphy for his advice and for his wisdom and Wayne Moore for the kind use of his unpublished dissertation. And, of course, I am deeply indebted to Professor Robert George | for his guidance and friendship. He has been an inspiration. Thank you. | 3 i But most of all, | would like to thank my parents, Rafael and EleanorCruz. | FT. This thesis is dedicated to them—the two greatest people I have ever known. } ‘Won oqKeurtenien ON “Mreaqr] Aisasatay woasmy 1 paenoy peutic ne he lili.

Original housed in Princeton University Library. No copies may be made If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. — James Madison, Federalist No. 51. Generated by CamScanner from intsig.com

byit to the States, are reserved to the States respectively, or to the people.”? Powers and Rights: Their Meanings The idea behind these two innocuous looking provisions is about as far removed from present-day jurisprudence as are angels from demons. Itis a simple idea, much simpler than the convoluted theories and justifications that have beenfurtheredinits place. Butin that simplicity is its beauty. Let us begin with the termsbeing discussed, for in them wefind thefirst trap to understanding the Amendments. Madison told us, (t]he use of wordsis to express ideas. Perspicuity, therefore, requires not onlythat the ideas should be distinctly formed, but that they should be expressed by wordsdistinctly and exclusively app- > =.- to them. But no languageis so copious as to supply words and phrases for every complex idea, or so correct as not to incluc equivocally denoting different ideas....\When the Almighty himself condescends to address mankind in their own language,his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.4 ’ | The Ninth Amendmentaddresses “rights,” and the Tenth, the distribution of “powers.” Yet repeatedly, politicians, scholars, judges, even Framers confuse — ‘ the two.4 Each conceptis distinct, andit is only through laxity of language 2 U.S. Constitution, Amendment X. 3 Madison,Federalist No. 37, included in The Federalist Papers (New York: New American Library, 1961, 224, 229). 4 John Calhoun’s confusion was so great he actually misquoted the Ninth Amendment, replacing “rights” with “powers.” Leslie W. Dunbar, “James Madison and the Ninth Amendment,” 42 Va. L. Rev. 627, 639 n. 46 (1956). Gordon Wood discusses the “rights and powers adhering in the King’s authority,” blurring the distinction between rights and powers. (But see n.11, supra). Gordon S. Wood, The Creation of the American Reputlic, 1776-1787 (New York: W.W. Norton & Co., 1972, 19). Similarly, Chief Justice Charles £ Hughes confused rights with powers when he referred to the “rights which are expressly

CHAPTER ONE The Nature of Rights and Powers The United States Constitution is a remarkable attempt at a social compact that provides for effective governance while still protecting individual liberty. It establishes a government of specifically enumerated powers and then goes on to catalogue the rights it explicitly protects. Immediately thereafter, the Constitution does an unusual thing: it states that all the rights and powers not specifically addressed still exist in their entirety. That proclamation, in the form of the Ninth and Tenth Amendments, is the subject of much misunderstanding. This thesis will attempt to explore and to rectify that misunderstanding. It will, in the process, elaborate upon a conception of the Ninth and Tenth Amendments which revitalizes the Founders' commitment to limiting government, to restraining the reach of our none-too-angelic leaders. The Ninth Amendment provides, "[t]he enumeration

wo Chapter One . Chipping the Wiegs of Angels t by it to the States, are reserved to the States respectively, or to the people.”? Powers and Rights: Their Meanings The idea behind these two innocuous looking provisions is about as far removed from present-day jurisprudence as are angels from demons. Itisa simple idea, much simpler than the convoluted theories and justifications that have been furthered in its place. But in that simplicity is its beauty. Let us begin with the terms being discussed, for in them wefind the first trap to understanding the Amendments Madison told us, [t]he use of words is to express ideas Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expresed by words distinctly and exclusively appropriate to ther But no language is so copious as to supply words and phrases for every comple idea, of ww correct as not to include many equivocally denoting different ideas When the Almighty himself condescends to address mankind in their own language, his meaning, lurmimaus as it must be, ts rendered dim and doubtful by the cloudy medium through which it is communicated.) The Ninth Amendment acidressce “rights.” and the Tenth, the distribution of “powers.” Yet repeatedly. politicians, scholars, padges, even Pramers confuse the two. Each concept is distinct, and it is only through laxity of language 2SConstitution, Amendment ® 3 Madison, Federtlst No 37. inctuched tn The Fadesoliet Popers (New York: New American Library, 1961, 224, 229). 4 john Cathoun’s confusion was so great he actaally misquoted the Ninth Amendment, replacing “rights” with “powers” Leslie Wo Dunbar, “Jarnes Madison and the Ninth Amendment,” 42 Va. L. Rev, 627, 609 9 4611956) Gordon Wood discusses the “rightsand powersadhering in the King’s authority.” blurring the distinction between rights and powers. (Rut we nit, capa) Gordon $8. Wood, The Cramton ef the Amencan Republic. EI76-1787 (NewYorks W.W. Norton & Co., 1972. 19). Serrelariy, Chaet justice Oharies E. Hoghes confused rights with powers when he referred to the “rights which areexprenshy wil taalaicainsaRebaallaeRieik ald l

_—7"— A — Spt snete Ipc heap Ai nee ORES a ato dinedpounds ce ANH mea CERI HY etna ReeRN ARTO ely MRR ow Chipping the Woags of Angels Chapter One that they are confounded. Individuals have rights, personal spheres protected from infringement by others. Governments have powers, authority to command or coerce others tor specitied ends. It is meaningless for a government to have rights over people, for a government right is simplya legitimate power.> A power is the ability to control another; it is “legal authority.“6 As such, only governments (or governmental agencies) can wield it. It is meaningless to say that individuals have powers.’ Governments possess powers and granted to the Federal Government” Ashawnder ct al 2 Tennessee Valley Authority et al 87 US T88, WMO ISIS! Also. Anti fedieratiat “The Impartial Examiner” used “powers” in the place of “ng” wher he wrote, * catch itetivadual gives up all [his] powers info the Rares of the atate © The [eepartaal Eesoniews, 20 February 1788, included in Herbert | Storing, et. The Aen Federelat (Chicage Urawersty of Chicago Press, 1985, 176). (Complete Anti federoiet, S142) Apel finally, actPederaliat James Wilson repeatedty used “raghts” and “powers interchangeabty ‘Soe latnes Wilson, Address to a Meeting of the Catinens of Piiladetptva, Ortoter 6, 1787 and James Wilson, Speech at the Penmiytvamas Comemmon Sovermteer It to Dineen$2 17K? both quoted in Wayne D. Moore, Comstitetaenad Raptr: end Powers uf ite Popar (Unpublished dissertation, Princeton Usewereity Dicgaartaens cf Poditigs, 1093, £7) 5 oe. fa gowernment Net 2 “Fight” fo tae, if aay Regihematrly evercise the power of taxation, & Webster's New Woeld Osctiomery (New York Warner Books, 1084, 464), 7 There are two exceptions te this. The first @ parents and guardians over children and incompetents. However, the only teaton that the former have “powers” over the latter is that children and incompetents are deemed incapable of erercsing complete sell- governance. (For a discussion of the pastfication of paternal power due to children’s lack of “reason” see John Locke, Second Trawtse of Goverment (indianapolis Hackett Publishing Ca, 80, 30-42). The second exception rs that of government employees exercising powers over others. This is less an exception than a mesunderstanding. The power they wield is not their own, it rs the government's. They are metely instruments for the exercise of government's powers. (Some might imagine a third ewepton: that of employers or of institutions of civic authority (ke universities). Yet while they may have authority in

exercise them over: a) individuals, b) institutions (ie, collections of people), and c) other subsidiary governments. Hence each of the three can have rights in relation to the government exercising power. Rights, like powers, express triadic relations. In addition to the issue of who possesses the right. there are also the issues of against whom the nght exists and for whatit is claimed Rights are claims to non-interference from others in particular arenas? For example, the right to free speech is the right to express your beliefs and opinions without others suppressing you Rights, for individuals. also exist againat three groups: a) other individuals b) institutions, and ¢) government: Against the first two, rights protect individual autonomy from excess interference through civil laws and government's police powers Against the third, gowernment, rights are claims against government powers—in 4 tense, “non-powers” It is only in this manner that rights can in any way be possessed by governments, and then only by subsidiary governments A government can have a right only in that a state or a city may have claims against the power of the nation or state practice, it is not legal authority—merely the eterciee of private contractual obligations) ft is iepeasible for one autonomous inetividiaal t pesaest s power, a legal, legitimate authority, over another autonomous individwal, ® Samuel Stoljar, Aw Amslyses of Rights (New York: St Martins’s Press, 1984, 1). * Ruchesomy make sense when expressed against sorneonechee“nobady ever tightmobiteotgardening, vou wouldsimply enjovdoing«1. Tospegkofa nghtassomething eeer ree othersae welStole.2 | ea a:

See Ee CG Clippeng the Wings of Angels on es Pi ee wes in other words, Sovernments have rights only in the instances in —_ ay = claiming them against government exercises of power over them—the exact same instances when individuals claim rights against powers Natural Law vs. Constitutional Rights The response instantly: rights dependent upon governmental powers? But what of the natural nghts of man? Such protestations are characteristic of the second pitfall to understanding the Ninth and Tenth Amendments: the confusion between moral/natural nights and Constitutional nghts.!! This problem is at the bottom: of much of the current miasma of error surrounding these two amendments Now it is certainly true that manyof the Founders believed in natural rights, in the idea that each persan is given by God “a natural right to his property, to his character, to liberty and to safety. From his peculiar relations, as a husband, as a father, a3 4 son, he « entitled to the enjoyment of peculiar rights “'? Most of them woukd also have agreed that 10 once Gordon Wood's reference to the “Hghts aval proewers” of the British “King’s authority” (n.5, supra) is logical onty when ome establishes the precise correlation between his powers evercised over the people amd beteren his nights against powers exercised over him by Parliament (ala people, but exerctang powers of go-vermment—aee nA, supra). For a discussion of the “struggle between Crown and Pathament” ore Alan GR. Smith, The Emergence of a Nation State The Commonwenith of England (London. Longman Group Lamted, 1984). 1} EgLA. Hart describes the problem that “law and morality..share a common eoeabularyof rights obligations and duties,” whach, combined with the “use of grand but vague words hke Positivismand ‘Natural Law,” obseures the differences between them. MILLAHart, Law, Liberty, and Menality (Stanford, CA: Stantord Univeruity Press, 19463, ak.

Be: f be : F | i e of others.” Thomas Paime, AugineofMon (New York: these rights “2 he Constitutior af '> They would have comterded that in the state of nature (absent government) individuals did nor fine thetr natural rights fully protected, so they gathered together and each sacrificed someof his rights to be subject w the powers of the civil government they created. “The liberty of every member is increased by this introduction; for each gains more by the limitation of the freedom of every other member, than he loses by the limitation of his own.”15 The people freely “ente{r] into a compact with each other to produce a government; !* the authority of that government comes from the people,!7 '2 james Wilson, quoted in Randy E. Rernett ‘Becorceveing the Nunth Amendment,” 74 Corneil L. Rew 1. 32 (19002 Stenttarty, wn 1791, Thomas Paine wrote “natural raghts are those which appertain to mam im the right of his extenence. Of this kind are all the intellectual rights, OF rights of the mnind. snd alse all thone rights of actingas an individual for hieown comiort and happiness, whichare not injurioustothe natural rights

neteANARpeteERE for nm government can legitimately have authority without the people's (as a whole, in the state of nature) consent.!§ This view is perhaps best evidenced — in James Madison's first proposed amendment to the Constitution: First. That there be prefixed to the constitution a declaration, that all power is originally vested in, and consequently derived aamh, the people. That Governenent is tnatituted and ought toWe aaeland Bor the benefit of the people; which consists in the enjoymentoflife” andliberty,Seisee

fetterson, Dickinson and Wilson: Jay, Madison, Hamilton, and, in a sense, Mason and Henry—were seldom,if ever, guilty of confusing lawwith natural right. These men, before 1776, used nature to take the measure of lawand to judge their own obligations of obedience, but not as a source for rules of decisions.20 Similarly, a prominent Anti-Federalist explained, Of rights, some are natural and unalienable, of which even the people cannot deprive individuals; Some are constitutional or fundamental, these cannot be altered or abolished by the ordinary laws, but the People, by express acts, mayalter or abolish them— These, such as thetrial by jury, the benefits of the writ of habeas corpus, &e individuals claim under the solemn compacts of the People, as constitutions, of at least under laws so strengthened by long usuage [sic] as not to be repealable by the ordinary legislature— and some are common or mere legal rights, that is, such as individuals claim under laws which the ordinary legislature may alter or abolish a: pleasure 2! Furthermore. Madison “suggested that even if persons had a natural right to disobey unjust laws, there cowld te po comsttutional of legal right to disobey laws made.“*2 This distinction, between natural, comstitutional, and Jegal rights, is one very few modern readers of the Constitution have understood. Hence, they have seen the word “right” in the Constitution and have immediately leapt 29 Robert Cover, fusticy Accused. as quoted in fobs Hart Bly, Democracy and Distrust A Theerg of fadicul Review (Cambridge, MA: Hatwatd University Press, 1980, 39), ZT Obsernations Leading to a Fate Enamesmetion of the System Of Government Propmced by the Late Convention, And to Several Excrntiol and Necessary Alterations in i fe ag Nworber of Letters frome the Faderal Fareney to the Repwblicen, 75 December 1787, Sorte, “DDS.402 Tr has been generally supposed that the Federal Parmer was Richard Menry Lee. although wveral scholars, inchading Storing, Witham W. Crosskey, andGordon meee eeu G ee

to the conclusion that it was protecting fundamental, individual—natural— rights. The Constitution is a legal document. It's functions are twofold: first, an aspirational role, to embodythe nation’s fundamental beliefs and its political values, to serve as “a declaration of articles of faith,“23 and second, a practical role, to define the structure and the powers of the government and the nghts of the people A constitution is a thing antecedent to a government, and a government ts only the creature of a constitution The constitution Of 4 country ts not the act of its government, but of the people cOMsEtUnNE, 2 government [tis the body of elements, to which you can reter, and quote article by article. and which contains the principles on which the government shall be established, the manner in whoch i shall be organized. the powers it shall have, the mode of elections, the duration of parliaments, or by what other name such bodes may be called. the powers which the executive Part of the gowernmen: shall have. and. in fine, everything that relates to the complete organization of a awil government, and the prinaples on whack i shell act, and by which at shall be bound, A constitution, thertefore, is to 4 government what the laws made afterwards by that gowernment are to a court of pudicature The court of pudicatute dows mot make the laws, neither can it alter them: it only acts in conformity to the laws made and the governmentis in like mannet governed by the constitution 24 Constitutional Rights: Federal Non-Powers it is primarily this second function, that of defining the powers of the governmentand the rights of the people, to which we must look in 23 Witham O Douglas, We. the Judges (New York: Doubleday, 1956, 4291, as quoted se Walter FMurphy. lames E. Fleming, esq. and Witham F Harris, 1. American Comstitumcma? (nterpretation (Mineola, NY: The FoundationPress,1986, 7).

CToppeny the Wings of Angets Chapter One determining howour system was intended to operate As should be apparent by now, the rights which were discussed above, rights in general in contradistinetion to powers, were Constitutional rights. When the Constitution refers to rights, it does not mean natural rights; if means claims of non-interference against the government—it means “non-powers.” Constitutional rights reflect claims against Constitutional powers, plain and simple.25 One can see this in the Federal Farmer's explanation of the need for “constitutional barriers weil! fhe henween the powers of the rulers and the rights of the people. “2° Sunilarly, Madison described the reciprocal relation between Constitutional nghts and powers in his December 5, 1979 letter to George Washington [Edmund Randolph's! principle objection was pointed ag “ the word retained, in the eleventh proposed amendment [what would soon become the Ninth Ameruiment| and hie argument if | understood it was applied in this mannet—-that as the nights declared in the first ten of the proposed amendment: wete not al] that a free people would require the ewetcise of ana that as thete was no criterion by 25 Dunbar, 42 Va. L. Rev. at 12%. Raoul Berger, “The Niet Amendment.” 66 Cornell L. Rev 1.9 (1980), John B Attanasio. “Everyman + Comstinetional Law A Theory of the Power of Judicial Review,” 72 Geo L. | Tan$ 1667 (9SREE Mellon Ko Michael, “The Role of Natural Law in Early American Constitutionalicm Dhd the Founders Contemplate Judicial Enforcement of ‘Unwritten’ Individual Rights 69. N CL. Rew 421, 469-477 (1991), Charles i Cooper, “Linuted Government and Indivdual Liberty. The Ninth Amendment's Forgotten Lessons.” included in Eugene Wo Hickok, fr. ed, The Boll of Rights Original Meaning and Curnent Understanding (Charlottesville, VA) Unaversity Press of Virginia, 1991, 425); Edward {| Erler, “The Ninth Amendment and Contemporary jurisprodence.” inchaded in Migkow, 438, Moorg, 2. 82-43, &9. : 2* |ctsme Heme the Federal Farmer, 28 Decernber 1787, Storsnig, 8? 2aTh. EeSe oS em Retene eh te ne haenatereac

TeNoe pe esaoeaeee aN se which tt could be determined whether any ether particular right was retained or not, it would be more safe and more consistent with the spit of the Ist & 17th amend" proposed by Virginia that this reservation ag“ constructive power, should operate rather as a provision ag." extending the powers of Cong. by their own authority, than a protection to rights reducible to no definite certainty, But others, among whom | am one, see not the force of this distinction [fa line can be drawn between the powers granted and the nghts retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended If no such line can be drawn, a declaration in either form would amountto nothing 27 As these reaprocal rights and powers established in the Constitution create triadic relanomships. it is appropriate to ask who is exercising the powers and agains: whom the nights are claimed The answer illuminates the third major pitfall to urcerstanding the Amendments The Constitution is a document creating the federal government ft was establishing a new central government and defining how it would relate to the states and to the people it goes to great lengths to desetibe the powers of the federal government, and then, in the Bill of Rights, it specifically enumerates the rights of the people against it. In other words. as the Constitution was creating a national government, and as Constitutional rights are claims against the powers of governments, those rights were to be claims against the national * Letterto George Washington, $ December 1789, wnchaded in GaiTlard Hunt, ed, The Vernamge of fiaetes Madison (New York: GP Putnam's Sons, 1904, Vol $, 431-37) Randy Barrett hes arguedthat this pastage supports rights Femeting powers a5 surely as powers — emit mages. tecunaieiaad at 1. stcaelanaieinnait ant$ es

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understanding of its ratifiers 3 Those rights, properly understood, were not natural rights—deemed fundamentally applicable to all and every government—but rather were Constitutional rights, limiting the reach ot the powers of the national government that the Constitution was creating. Admittedly, the Fourteenth Amendment changed the applicability of the Bill of Rights to the states Ir did not, however, change the nature of the rights referred to in the first ten Amendments. They remained Constitutional, not natural, rights The Bill of Rights Debate The question nonetheless remains how Constitutional rights exert their claim over Constitutional powers To understand the interaction of rights and powers one must firet understand the debate over the explicit inclusion of rights in the Constitution °° frutially, the Comstinution contained no Bill of Rights. While it did eeplicitly protitit the fedteral government from a few activities2¢ on the whole it relied upon positive grants of powers rather than negative protection of rights to define the government. Anti-Federalists 3 Michael. 69 N. CL. Rev. at 477, Metvin E Urodeky, od, Documents of American Comstitutional & Legal Histery (Philadelphia: Temple University Press, 1989, 261-62), Sanford Levinaon, “Constitutional Rhetoric and the Ninth Amendment,” 64 Ohi Kent L. Rev. P31 M2 (1989). “tn terms of the orignal understanding, Barron was almost certainly decided correctly” Ely, 196, 084 MSeeChapter & Thawdebate os recounted in detail in Chapter 2 SeeU.S Consnination, Article | Section1 -- --++- metre ge eee

Clipping the Wings of Angels Chapter One argued that a Bill of Rights was essential, that rights not explicitly protected would be lost. To this, they were told that the government created was one of enumerated powers, the antithesis of ordinary governments of general jurisdiction. While the Federalists admitted that normally rights had to be explicitly protected, they argued that this was only a danger under governments which had the powersto violate them. Under most governments, the presumption wasthat the state had the power to pass any laws it wished,so long as theydid not violate expressly enumerated rights which the people hadestablished. But this newfederal government wasdifferent. With it, the presumption wasthatit did not have anyauthority whatsoever, except that explicitly given it. Hence, the Federalists argued, rights were alreadyprotected because the central government had not been given the power to violate them. The Anti-Federalists were not satisfied, arguing that governments naturally expand their powers and that essential rights could be violated within the already enumerated powers. Seeking a compromise to secure ratification, the Federalists finally agreed to include a Bill of Rights. This was in spite of the fact that manyof the Federalists were convinced that explicit inclusion of rights would reverse the presumption, implying that the federal government suddenly had the power to do everything else not explicitly prohibited. So the Ninth and Tenth Amendments were drafted to reiterate, in a sense, the prior presumption against federal power and for the people's

Lapses Rights i Relation to Powers Thus the Bill of Rights cameinto existence, with the first eight Amendments specifically protecting certain rights from government infringement. And the question remains, howdo these rights interact with the already enumerated powers? Wayne Moore suggests three possibilities: “rights are absences of delegated authority, rights preempt otherwise legitimate exercises of power, and rights and powers are overlapping prerogatives.”3” Thefirst suggestion is consistent with the argumentof the Federalists that a Bill of Rights was unnecessary becausethe federal government never had the authority to violate the rights in the first place. However, the second possibility reflects the concern of the Anti-Federalists that vital rights could be violated though otherwise legitimate exercises of delegated authority—that they could be denied through the means chosen to carry out an authorized purpose. The third possibility emphasizes the indeterminate result of rights and powers in conflict. Essentially, conflict and the resolution thereof is the key difference between them. Thefirst interpretation assumes that rights and legitimate powers do not conflict, whereas the second and third assume they do. The second asserts that in such conflicts, rights win; whereas the third proposes ¥ Moore, 17, hattecbr siiibealatriton msceicnaaiaetsrat t ee l

PEE HOARE aR Ip TCO eeToROMERO that sometimes nights win, and sometimes government powers win. Taken in sum, rights may be seer as limiting a) illegitimate powers, and b) illegitimate means to implement legitimate powers In the first instance, rights are a redundant check upon the unauthorized powers, with their lack of delegation being the primaryrestraint. In the second instance, rights are seen as determinants of the proper manner for the exercise of government pewer. The question of which prevails in case of conflict is irrelevant in instance (a), since the illegitimate power is already made void byits lack of enumeration. However, in instance (b), conflict can occur. Whether A) nights should predominate (Moore's second possibility), B) rights should sometimes predominate (Moore's third possibility), ar C) government powers should predominate (a pomatnlity mot directly considered by Moore) is an issue of much contention Sotitios Barber hat argued forcefully for the first option, the inviolability of rights Similarty, fustice Mugo Black made famous his philosophy of “no law teans to law” in advocating the First Amendment as an absolute prohibition on government restriction of speech and the press.2? The second approach has been the dominant mode of See Sotirios A. Barber, On What the Constitation Meant (Baltimore. The Johns PI Hoplars University Press, 1984, 105-48). *Gee Ganther, 647-31. Murphy, et al494-501 See also Dennis > United States, 441 US #4 (2931) (Black, |, dissenting) Vater 2 Uneted States, 84 US 298 (1957) (Black, }. = | Stomcwering a part and dissenting in part), Rerenlet: > United States, MUS 108(10H. ee Rha. 1. deamenteng): Brasdendury ¢ Ober, 395 US. $44(196%) (Black.|, concurring? Be a. & oi Sy sf oii aia abides subse seineis l Pistadiae wlelens neta, ~ Lea ah ucantitewiabilsculate,3

senda AOR have been held to be pudicial interpretation for much of our history, a$ rights qualified exceptions from government powers, but nonetheless sometimes subservient to state interests.4? The third approach has been jess commonly employed, but it was forcefully advocated by Justice StanleyF. Reed in United Public Workers v. Mutchell:4! that these Of course, it is accepted constitunional doctrine fundamental human rights are not absolutes. . Therefore, when objection is made that the exercise of a federal power infringes upon ts, the inquiry rights reserved by the Ninth and Tenth Amendmen must be directed toward the granted power under which the action er is found, necessarily of the the Union was taken If granted power the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail? While the wisdorn of the approach espoused in Mitchell may be questionable, it does rightly ook to the Ninth and Tenth Amendments as those reserving rights Both of them reserve rights, ard both of them linut powers. Perhaps as out inquity progtesses, the best approach to conflicting rights and powers will become cheater, but regardless, it will become clear how the Ninth and Tenth critically frame the issue The Ninth retains rights, Mew Yort Times v. Sullrean, 376 US 234 (Sh) (Black, 1, concurring? The Pentagon Papers Case (New York Times ¢ United States). 408 US. 713 (1971) (Black, |, concurring) © See. og. Reynolds v United Stetes 88 US 14S CERTR), Deri Beacon, 193 US. 333 (1990): Mimersetily Sehuel District ¢ Gebttis, 310 US S86 (1960), conten, Wert Peegema ¢ Barnette, 319 U.S 66 (1980) See also Korematen pv. United Stotes, 323 US Tha UME) Mayer oc Nebraste, 262 US 390 (1923). Uindted Stetes oy O'Brien, 91 US. me CG), comtes, Timber ¢ A ENE SeEAE: OF prs ea © ae Us. TS ree), ©US.a 4.

r woo* bTszutT worzy aAsuuePOSgueDN Aq pozesrzsusy Cherret the Wenge of Angels ae essen ernment $s eect rers gov jons from government, and the Tenth reserves powers. protect reach of government: ability to infringe rights. Together, the two limit the he same idea. they are flip sides of the same coin.#? reciprocal statements of | ; e spite of Together, they attempt to reiterate the idea of enumerated powers In SP i > me “the ications of enumerating rights as well. It is as if they mean to Say the imp! ers, then enumerated rights as if the powers had nat Constitution limited pow been Limited, but tt really meant the limited powers in the first place. Admittedly, to the degree that the Ninth serves an addinional funcion of constraining the means of enumerated powers, Hf 1 distinct from the Tenth. That question will be explored it chapter 5. Absent that aspect, the two amendments perform the wientcal function: they list the federal government They simply do sofrom different directions, the Tenth stops new powers, and the Ninth iortifies all other rights, of non-powers In a way, they mirror the Constitution and the Bill of Rights in entirety The Constitution seeks to restrain the teach of angels by specifically enumerating powers; the Tenth Amendment echoes that sentiment and proclaims that the Bill of Rights did nothing to weaken it The Bill of Rights, conversely, constrains the angels by specifically enumerating rights, the Ninth also comes from the direction of rights, reminding us that the Bill of Rights did not enumerate everything, did not reverse the presumption, and that the Constitution still embraced limited government. © Comper, 433 ob. bs Lie Sas

CHAPTER TWO The Debates over the Constitution Sirecestaap a Original Intent To understand fully the meaning behind the Ninth and Tenth Amendments, one must first be immersed in the debates and the political culture which led to their creation. Some might question the value of such an inquiry and the relevance of the original intentions behind the Amendments. In particular, they would question theability to discern a “Framers’ intent,” and the applicability of any such intent upon our modern- dayinterpretations. Someof these criticisms are quite valid, particularly those which focus upon the diversity of opinion of the Framers and the difficulty of discerning common understandings.44 “Search for intent restrains judicial discretion less than most approaches to constitutional interpretation because it is based on the usually self-deceptive myth that there is such a discoverable entity as a single intent on particular matters."45 Often such attempts can devolve into “charade[s] of ‘pick your framer’ in which the judge casts about for like-minded framers to conceal what would otherwise 44 This is an admission which even Madison made. “(The Constitution] was not, like the fabled Goddess of Wisdom,the offspring of a single brain. It ought to be regarded as the work of many heads and many hands.” Madison,as included in Hunt, Vol.9, 533. 45 Walter F. Murphy, “ConstitutionalInterpretation: The Art of the Historian, Magician, or Statesman?,” 87 Yale L. J. 1752, 1770 (1978).

stand out as a straight-forward value statement “** Others, like John Hart Ely, have pointed to the problems of interpretivism, Of looking only to the text and to the intent of the Founders to discern tts true meaning. “[T]his standard form of interpretivism runs into trouble... For the constitutional documentitself, the interpretivist’s Bible, contains several provisions whose invitation to look beyond their four comers...cannot be construed away “*” Robert Bork has responded by arguing that those provisions were never intended to be seen as wide-open judicial mandates. This issue will be explored more as this thesis progresses Despite this critictem, many hawe admitted the importance of original intent. Framers therneciver hawet® “I! the sense in which the Constitution was accepted and ratified by the Nation he not the guide in expounding the Constitution. therecan be no security for a faithful exercise of ite powers.”5° Similarly, “[t]he first and governing masim in the interpretation of a statute is, to discover the meaning of those, who made it.**! Jurists have looked to * Paul Brest, “The Misconceived Quest for the Original Underwtanding,” @BULL. Rev. 204, 222 (1980). £ Ely, 13. & coe Robert H. Bork, The Tempting of America The Political Seduction of the Lew iNew York. Simon & Schuster, 1990, 178.88). © Athough it is admittedly ironic to cite the views of the Pramers as evidence that ome should lok to the views of the Framers ©\adiaon, as inchaded in Hust, Vol 9, 191. oeaa alealles meee ee ee

ison and Harmilten as welk “TWe should ask} not what works did Mad «82 Also, “ithe first intent use, but ~ and fundamental rule in the interpretation of and the intention of the parties them according to the sense of the terms, Decisions abound,“ as does scholarly support “{Interpretivism is a theory] rooted in our history and in of great power and compelling simplicity...deeply our shared principles of political legitimacy. It has equally deep roots in our “linterpretivism] better fits [than ite the way if works.”°* hat was it in their minds which they conveyed. all instruments is, to construe wS3 Constitution.““> Even Ely admitted that converse] our usual conceptions of what law is and But the best reason to consider intent was proffered by Philip Kurland anne 5 ' farmen Wilson, a9 quoted as Racud Berger, Federalarn Tow Founders’ Demgn iNorman, OK: University of Olidadwome Brews, 1987, 16) 52Pennie, M1 US. at SEXY Pramksturter, |. comcurring) Soseph Story. Commentaries on the Canatizaron of the Useied States (Durham, N.C: Carolina Acactermic Press, 9087, 195) «@ bet i Cummenneres on the Constitution of tae United Staten: with « Prslomanery Kevanaf the Cumarcrerional History of the Civlomies and States. Before the Aduptum of the Comaniytum, abidged by Joseph Story, RID). M cee eg. Marbury ¢ Madicom $US. (t Crane) 127, (UR0D), Mawel 0. Mankichi, 18 US. 107, 212 (1902): Senth Cache 7 Uetted Stetes, 199 US 437, 448 (1905), Rhode falend ¢ Museackwsetts, 37 US. (12 Pet) 87, 721 CPRMRD, RellMaryland, 378 U5. 226, ’ DB-9 (7984) (Goldberg, 1. concurring): —- Sphomae Grey, “Do We Have an Unwritten Conetitution?,” 27 Stan. L. Rev. 703, 708 {1973} | Ely. 3. See ala William H. Rebncquist, “The Notion of a Living Constitution,” $4 Fonas {. Rev. 63, 604 (1976); Robert Boek, “Neutral Principles and Some First J vend _ Problems.” 47 Ind Lf 1 (1971): Raoul Berger, “Mark Tushnet’sCritiqueof bmenprat teeoesaaacametanea arpa 3 : Aeneeerenee ss

“[non-interpretivismn) makes nonsense of the concept of a written Constitution. [ft is simply} deconstruction “*" tt would be foolish to attempt to understand the Constitution of the Ninth and Tenth Amendments in particular without comprehending what their authors meant when they penned them and what the states meant w hen they ratified them 58 while it is certainly true that there was not unanimity among the Pramers, one can nevertheless “identify a range of constitutional meanings “59 1 will therefore look to the debates andratifications of the Constitution and the Amendments for guidance as to what they mean.Nolegal document would be interpreted otherwise,°! and it would be a mistake to do so with legal documents of such great importance. 57 Philip Kurland, “Curia Regis: Some Comments on the Divine Right of Kings and Courts ‘To Say What the Law Is.’” 23 Ariz. L-Rev. 581, 582 (1981). SS james Madison particularly emphasized the intent of the State Conventions: “it is clear, that if the meaning of the Constitution is to be sought outside ofitself, it is not in the proceedings of the Body that proposed it, but in those of the State Conventions, which gave it all the validity and authority it possesses.” Madison, included in Hunt, Vol. 9, 477. 59Moore, 12. 60 To the extent that such unspoken thoughts [the Founders’ intent] control the text, they become a supertext.” Walter F. Murphy, “Constitutions, Constitutionalism, and Democracy,” to appearin Stanley N.Katz and Douglas Greenberg,eds., Constitutionalism and Transformations in the Modern World (New York: Oxford University Press, 1992, 22 {in the unpublished draft)). 61 For example,treaties between the U.S. and the Indians mustbe interpreted as the Indians understood them,i.e., in accordance with their intent. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582 (1832); Starr v. Long Jim, 227 U.S. 613, 622-23 (1913); United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938); Choctaw Nation v. Oklahoma, 397 U.S. 620,631 (1970).

The Articles of Confederation The Constitution was born out of the tumult of post-Revolutionary America. The Revolution can be thought to have begun on May 15, 1777 when Virginia instructed its delegates to move in Congress that the colonies declare themselves “free and independent states.” On June 7, Richard Henry Lee did so, presenting a three-part motion that the colonies 1) were “free and independent,” 2) should form foreign alliances, and 3) should draw up a “plan of confederation“ The motion was debated until June 16, at which point it was postponed until fuly 1 On June 11 a committee was appointed to draft a declaration of independence It had five members: John Adams, Benjamin Franklin, Thomas Jefferson, Roger Sherman, and Robert R. Livingston; Jefferson was given the responsibility of composing the first draft. The draft was presented first to Adams and Franklin, then to the whole committee, and then, om fume 28 to Congress. ft “lay on the table” until July 1, when debate recommenced fuly 2 all the colonies except New York approved it,°? and on July 4, 1776 the final draft was ready. The colonies declared their independence, and the “united States of America’® was born. in line with the third provision of Richard Henry Lee's June 7 proposal, *?New York approved it on [uly 9, reporting it toCongresson July 15. On July 19, **Deckaration of Independence, line one. ™Morrill jensen, ed. The Documentary History of the Ratification of the setion (Maxdiaon, WE State Historical Soctety of Wisconsin, 1976, 72. *™. P 5,PORES

a committee was appointed to draw up plans for confederation. Despite the great difficulty of designing a government while fighting a war, Congress managed to do so, and on November 15, 1777, it approved the Articles of Confederation. Approval from the states took four years, but with Maryland's ratification on February 2, 1781, official ratification (with unanimous approval) was possible on March 1, 1781. The United States had formed a loose confederacy that was to govern them for eight years. But the system had problems James Madison described them as follows: 1. Failure of the states to comply with the constitutional Feqquisitiogss - Encroachiments by the states on the federal authority... Violations of the Law of nations and of treaties... 2 3. 4 Trespasses of the states on the rights of each other, 5. Want of comcert in matters where common interest requires it... 6 Want of guaranty to the states of their comatitutions & laws against internal violence. Want of sanction to the law and of coercion in the government of the confederacy 8. Want of ratification by the people of the articles of confederation. 9. Multiplicity of laws if the several states. 10. Mutability of the laws in the several states, 11. Injustice of the laws of the states Madison found the causes of most of these to be the degree to whichsmall republics were subject to factions, and his prescribed solution was a large “Mt SSromans,7 honsen, OT-137, *tames Madison, Vives of the Political Syetom of the United States, April 1787, iciaded in Marvin Meyers, ed. The Mind of the Fewnder. Sources and Political Thought of jemax Miadinem(Hanover, NH University Press of New England, 1981, $7-62). |

Chapter Two aE Clipping the We eee republic with suffici ngs of Angels ent authority to check the factions withoutitself becoming controlled.68 Gordon Wood described someof the abuses, characterized as “democratic lism” by John Adams. “The confiscation of property, the paper money various devices suspending the ord utrageous...violation despo inary schemes, the tender laws, and the s for the recovery of debts, despite their ‘open and o 69 Yet Woodalso pointed outthat it was a time ative mean of every principle of justice. of strong economic growth, unrivaled population growth, and rel government stability. “On the surface atleast the American states appeared remarkably stable and prosperous.””0 So why the perceived crisis? ented much more than a colonial rebellion, “[BJecause the Revolution repres in fact a utopian effort to reform the character of Ameri men in the 1780's could can [it] represented society and to establish truly free governments, actually believe thatit was failing....[Bly the 1780's the Revolutionary ideals seemed to be breeding the sources of their own miscarriage.””! The ple wanted too much: they wanted to create a perfect society American peo with a perfect government. The Constitutional Convention 68 Madison, Vices, Meyers, 62-65. 69Wood, 404. 70Wood, 394. 71 Wood, 395-7.

PONTaeee| Clipping the Wins of Angels Chapter Two Tt was in this spirit that the move for a Constitutional convention began. In the summer of 1782 the NewYork legislature called for a general convention to revise the Articles; the proposal was sent to committee in Congress and died by September 1783. For the next three years critics of the Articles wrote countless letters, pamphlets, and newspaper articles advocating revision. On January 21, 1786, the Virginia legislature proposed a convention to meet at Annapolis in September 1786. Nine states elected delegates to attend, but delegates arrived from only five of them.7? The report of the convention was sent to all the states and to Congress. It proposed thatthe states elect delegates to meet in Philadelphia in May “to devise such further provisions as shall appear to them necessary to render the constitution of the Foederal Government adequate to the exigencies of the Union”? Following Shays’ Rebellion in 178-7, Congress passed by an §-1 majority a motion by Massachusetts to call 4 comvention in Philadelphia “for the sole and express purpose of revising the Articles of Coniedetation [anal making necessary] alterations and provisions.""4 Finally, on May 25, 1787, the delegates arrived in Philadelphia and the Convention began”? 2 The delegates who attended were Aletaruier Hamilton and Egbert Benson from New York; Abraham Clark, William C. Houston, and [aenes Schaoreman from new jersey; Tench Cone from Pennsylvania: George Read. loha Dickerson and Richard Baesett from . Delaware: and Edmund Randolph. lames Madison, and St. George Tucker from Virginia. Eight of the twelve were also elected to the Convention of 1787 (although only seven attended) jensen, 177. Prscvndimgs and Report of the Commissioners ot Annepolis, Maryland, 11-14 Septeweber 1°96. a8 inchuded in femaen, 181-5. 4Sencar, eS, *heme, 232.

The selection of delegates gathered were among the finest ever assembled. They included George Washington, James Madison, Alexandet Hamilton, James Wilson, Benjamin Franklin, Edmund Randolph, Gouverneur Mortis, and George Mason—all men of great stature and learning come to devise a government. They brought with them the political theories of Plato and Montesquieu and Locke, the foundations of Roman and British law, and the traditions and beliefs of Catholic and Protestant Christianity.”° The debates which proceeded lasted throughout the hot Philadelphia summer and finally ended on September 17, 1787, No public records of the proceedings were kept, so what knowledge we do have is from private notes. The most comprehensive is that of James Madison, but notes of the proceedings were also taken by William Jackson (the official secretary), Luther Martin, Robert Yates, William Pierce, Rufus King, William Patterson, Alexander Hamilton, James McHenry, and John Lansing.”” While Madison's notes seem faitty accurate, he doubtless editorialized at least to the extent that he viewed the debate from his perspective. Those opposed to Madison's positions, however, saw the in a different light. | q "SPage Smith. The Comstitution A Documentary end Narrative History (New York: ———™Agstenne Koch, “Introduction.” to James Madison, Notes on the Dehates inthe Fiske Commention of 1787(New York: W. W. Norton &Company, 1987,vil. eens TPERASsa eeteerenin

A brief example is illustrative: M¥ Bedford, contended _{ilf political Societies possess ambition, ate {whll not the same motives operate in America as elsewhere? [Llook at the votes. Have they not been dictated by interest, by ambition? Are not the large states evidently seeking to aggrandize themselves at the expense of the small?...Will it be said that an inequality of power will not result from an inequality of votes. give the opportunity, and ambition will not fail to abuse it...The little States..will meet the large ones on no ground but that of Contederation . The Large States dare not dissolve the Confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice He did not mean to intimidate or alarm....All agree in the necessity of a more efficent Gov" and why not make such an one: as they desire 7# Madison seems to be fair in his reporting of the displeasure of the small states with proportional representation He includes some vitriol, such as the somewhat ominous referemme to “foreign allfies}“ But on the whole, it seems a displeased, yet calm speech Compare the tone to that of the same speech as recorded by Robert Yates: Mr. Bedford. [Elach of (the states] act from interested...ambitious motives. Look at the votes. [T]he larget states proceed as if our eyes were already perfectly blinded [mpartiality, with them, is already out of the question... Pretences to support ambition are never wanting. Their cry is, where is the danger?altho’ the powers of the general government will be incteased, yet it will be for the good of the whole: and although the three great states form nearly a majority of the people of America, they never will hurt ot injure the lesser states. | de not, gentlemen, trust you...You gravely alledge [sic] that there is no danger of combination,and triumphantly ask, how could combinations be effected?..This,1 repeat, is language calculated onlyto amuse us...The small sates 74sadn, Nistesom the Debates,Saturday, jure 30, m convention, 229-3.

never can agree to the Virginia plan; and why then isit still urged? Is it come to this, then that the sword must decide this controversy, and that the horrors of war must be added to the rest of our misfortunes? Will you crush the smaller states, or must they be left unmolested? Sooner than be ruined, there are foreign powers who will take us by the hand. 1 saynot this to threaten or intimidate, but that we should reflect seriously before we act....We all agree in the necessity of a more efficient government—and cannot this be done? Although my state is small, | know and respect its rights79 Clearly some observers recorded more discontent with certain provisions than did others. Nonetheless, Madison’s notes are still a fairly good record, and they are the best we have. What proceeded in the convention was speech after speech as the debates quickened and the delegates got aroursd to the nuts and bolts of designing a government. As the convention progressed, problems arose one after the other as the conflicts grew. Ultimately, many of these were resolved by compromise, as much of the document began to take on 2 spirit of compromise towards consensus. Notable compromises inchade “the Great Compromise,” between large and small states over representation (resulting in a proportional House and a fixed Senate), the 3/5 compromise (counting slaves as 3/5 of a person), and, eventually, the inclusion of the Bill of Rights.*° ™Robert Yates, Secret Proceedings and Dihutes of the Contention Assembled at Plbitadetpieia. it the Your 1787, for the Purpose of Forming the Constitution of the United Sarton of America (Birmingham, AL: Linn-Henley Research Center, 1987, Saturday, June 3%. 197-4) (Emphasis in the original). a ©exsoed C. Tugwell, The Comproming of the Constitution (Notre Dame, |NevtmeDamme Presa, ———-, 141)

The document was written in order to expand the role of the central government while carefully limiting its powers and protecting the people's rights by explicitly enumerating the powers of that government “In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty This revolution in the practice of the world may, with an honest praise be pronounced the most triumphant epoch of its history and the most consoling presage of its happiness“*' A Bill of Rights was, however, submitted by Charles Pickney to the Committee of Detail on August 20, but it never emerged from commuttee The idea of a Bill of Rights was proposed once more, on September 12, fut it was quickly dismissed: Col: Mason perceived the difficulty mentioned by M.‘ Gorham. The jury cases can not be specified. A general principle laid down on this and sorme other points would be sufficient. He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the Seate declarations, a bill might be prepared in a few hours M.‘ Gerry concurred in the idea and moved for a Committee to *' fames Madison, 1702. as quoted in Bernard Baityn, The Ideclogical Origins of the American Revolution (Cambridge, MA. The Bena Press of Harvard University Press, 17, 55). Russell Kirk, however, notes the differences betwren the American and the French revolutionaries, in that the Americans were “men of rachexperience in tpreentative government...political realists, aware of how difficull it is to govern men’s passions and self-interest. Their debates in Federal Hall_.were earnest but civil; and they seemed im ne danger of being intimidated by urbanlonhike thoseleadersoff the French Enlightenment.” Russell Kirk,eeae DL. RegreryGateway, 1990, 114). "See Maat, Mutton ce the Oubutes, Monday,Awgust 20, imconvention, 485-7. meee ey ewan

ttetag prepare 2 Bill of Rights. Col: Mason 24™the motion. MM." Sherman, was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution, and being in force are sufficient. There are manycases where jurtes are proper which can not be discriminated. The Legislature may be safely trusted. Col: Mason. The Laws of the U.S. are to be paramountto the State Bills of Rights. On the question for a Comto prepare a Bill of Rights N-H. no. Mas abs." C'no NJono. P4 no. Del no. M4 no. V4 no. N.C. no. SC. no Geo. no83 Five days later the convention was adjourned and the document produced— the soon-to-be United States Constitution—was unveiled. The Federalists and the Anti-Federaliets « General Philosophies The uproar which enswed consumed the nation, many were shocked that the convention had so greatly exceeded its mandate. Charged with “revising the Articles of Confederation.“™the convention had instead abandoned them and dramatically redesigned the federal government, Camps on both sides quickly formed, with thase supporting the proposed Constitution dubbed “Federalicts” and those opposing it “Anti-Federalists.” The Federalists’ magnunt opus was, appropriately titled, The Federalist Papers, a series of newspaperarticle which appeared in New York. These “political polemics”85 were written by Alexandet Hamilton, James Madison, © Madison, Notes on the Debates,Wednesday, September 12, in convention, 630. 4emer, 179. Murphy, 1783. As such,they sometimes tended moretowards propaganda than towards expwsition of the meaning of the Constitution. They are nonethelessamongthe omeet itwrinated tevts available on the US Constitution

and John Jay, and were responses to the manycriticisms written by Anti- Federalists in articles, pamphlets, andletters.86 The Anti-Federalists had many objections.8” One wasthat the proposed Constitution was not sufficiently democratic. The proposed Constitution provided that the first House of Representatives should consist of sixty-five members, and that afterwards theration of representation should not exceed one representative for thirty thousand people. This provision was vigorouslycriticized and wasthe chief componentof the charge that the Constitution was not sufficiently democratic.88 AmosSingletary putit well: These lawyers, and men oflearning, and moneyed men,that talk so finely, and gloss over matters so smoothly, to make us poor illiterate people swallow down the pill, expect to get into Congress themselves; they expect to be the managersof this Constitution, and get all the power andall the money into their own hands, and then they will swallowupall us little folks, like the great Leviathan, Mr. President; yes, just as the whale swallowed up Jonah. This is what 8 Many ofthe following arguments, by both the Federalists and the Anti-Federalists, appeared simultaneously, with little organization between them. In this next section,| will instead present them as an artificial chronology, ordering them so asto facilitate following the logical progression. 87The objections discussed are based on arguments, philosophical reasons against the Constitution. There were doubtless those who opposed the Constitution for personal reasons, such as those with a stake in the status quo, those standing to lose power in state governments, etc. For a discussion of the problemsof establishing a Constitution over intrenched powergroups, see Deane E. Neubauer, “Some Conditions of Democracy,” 61 Am. Pol. Sci. Rev. 1002 (1967). Also see Giuseppe Di Palma, To Craft Democracies (Berkeley, CA: University of California Press, 1990, 27-43). 58 Cecelia M. Kenyon, “MenofLittle Faith: The Anti-Federalists on the Nature of Representative Government,” included in Kermit L. Hall, ed., The Formation and Ratification of the Constitution: Major Historical Interpretations (New York: Garland Publishing, 1987, 355). . Toeee ewe eae ay eu

Iam afraid of,89 Hand-in-hand with this criticism came the claim that it would not work, that it was neither confederal (with thestates having sovereignty) nor unitary (with the national government having sovereignty). [There is nothing] in the history of mankind or in the sentiments of those whohavefavoured the world with their ideas on government, to warrant or countenance the motley mixture of a system proposed: a system which is an innovation in government of the most extraordinary kind; a system neither wholly federal, nor wholly national—buta strange hotch-potch of both.?° Theybelieved that sovereignty could not be shared,9! so therefore the federal government would predominate and become oppressive, because a large republic could do no otherwise. As Montesquieu had argued, “republican governments were appropriate for small territories only.”°* Because of the distance of the center of government from the people and becauseofthe lack of homogeneity, this proposed federal government would necessarily become oppressive.°? The Federalists responded in force. Numerousarticles addressed the limits of the new federal governmentandthe feasibility (and advantage) of a 59 amos Singletary, Speech at the Massachusetts Convention, Elliot, Vol. 2, 102. ® Luther Martin,as quoted in Charles F. Hobson, “The Tenth Amendment and the New Federalism of 1789,” included in Jon Kulka, The Bill of Rights: A Lively Heritage (Richmond, VA: Virginia State Library and Archives, 1987, 155). 71 Hobson, 157. 9 Kenyon, 351. ™Kenyon, 351-4. aahober reneeSecaaeNaraD

large republic. The most famousofthese is Madison’s Federalist No. 10: The smaller the society, the fewer probably will be the distinct parties and interests composingit; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the numberof individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere and you take in a greater variety of parties and interests; you makeit less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motiveexists, it will be more difficult for all whofeel it to discover their strength and to act in unison with each other....[T]he same advantage which a republic has over a democracyin controlling the effects of faction is enjoyed by a large over a small republic—is enjoyed by the Union over the states composingit.94 Similarly, in Federalist No. 14, Madison explained: The error which limits republican government to a narrow district...seems to oweits rise and prevalence chiefly to the confounding of a republic with a democracy....[T]he natural limit of a democracy is that distance from the central point which will just permit the most remotecitizens to assemble as often as their public functions demand.,...so the natural limit of a republic is that distance from the center which will barely allow the representatives of the people to meetas often as may be necessary....[The United States are well within that limit. Furthermore,]...[I]t is to be remembered that the general governmentis not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other objects which can be separately provided for, will retain their due authority andactivity.%° 4 Madison, Federalist No. 10, 83. 5 Madison, Federalist No. 14, 100-2. —---~--g----

— The Federalists and the Anti-Federalists: The Bill of Rights None of these issues, however, compared to the Anti-Federalists chief f complaint: that the proposed Constitution had no Bill of Rights. f “Antifederalists throughoutthe country opposed the Constitution for many reasons—some of them contradictory—but all the Antifederalists agreed that natural rights had to be protected by a Bill of Rights."% The Anti-Federalists demanded that these natural rights be protected in the form of Constitutional rights, “There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed—a free and enlightened people. in forming this compact, will not resign all their rights to those who govern. and they will fix limits to their legislators and rulers. “97 Jefferson, who called himself neither Federalist nor Anti- Federalist.*8 agreed: “{A} Bill of Rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, of rest on interference.“** The Anti-Federalists felt that 2 fill of Right: was necessary to protect their rights against the federal government because governments and leaders *John P. Kaminski, “Restoring the Dechataton of Independence: Natural Rights and the Ninth Amendment,” included in Kula, 145. *cottons foam the Federal Farmer, 9 October 1787, Storing, 60 (2.8.19). aon not a Pederatist..but {am much farther from [the side] of the Actiederalists * Thomas lefferson, Letter to Francts Hopkinson, 13 March 1784, included tn Merrill D Peterson, ed. The Perteble Thomas jetiorsem (New York: Penguin Books, 1986, Pte } ©‘ofersom,Lettertolames Madison,2)December 1787, Peterson, 430.

ee naturally grow and try to abuse power, and without explicit protection, the people would lose their rights. But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favourably for encreasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefully described the powers parted with and the powers [he should have used rights] reserved.00 Similarly, New York Anti-Federalist “Brutus’!0! wrote on the same subject: [Rlulers have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. fr is therefore proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries. 1? The Federalist: first responded to this by reemphasizing how limited the federal government was to be The powers delegated by the proposed Constinution to the federal government are few and defined. Those which are to remain in the State governments ate nuthetous and indefinite. The former will be exercised principally on extertal objects, as war, peace, negotiation, and foreign commerce. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State! 100 Cettowe from the Federal Farmer, 12 October 1787, Storing, 57 (2.8.50). ' TheExsays of Brutus are generally beliewed to have been written by Robert Yates, muninty according to the scholarship of Paul Leicester Ford. Storing, however, questions Yewauthorship. Storing, 10%. easesafSeuties, | November 1787, Storing, 118 (2.9.26). Neadteaon, Feleralist No. 43, 282-3. |

They then elaborated upon the theory of enumerated powers and the harms of also enumerating rights. They claimed a) that it was unnecessary, b) that it would be ineffective, and ¢) that it would be harmful. They outlined three ways in which it would be harmful: 1) it would imply that government had powers over everything not enumerated (instead of the current presumption that the people had rights against the governmentfor everything not enumerated), 2) it would imply that government had powers over the general areas mentioned in the rights and that it was only constrained from directly violating them,'™and 3) because rights would probably be defined too narrowly, it would imply that all rights not mentioned did not exist. Hamilton argued that tt was unneceteary: (Blilis of rights are, in their origin, stipulations between kings and their subjects, abricigmments of pretogative in favor of privilege, reservations of tights not surtetdered to the prince...T]hey have no application to constitutions, professediy founded upon the power of the people and executed by their immediate representatives and setvants. Here, in strictness, the people surrender nothing; as as they retain everything they have no need of particular reservations1% James Wilson concurred: Even in a single government, if the powers of the people rest on the same establishment as is expressed in this Constitution, a bill of rights is by no means a necessary measure. In a government 1SThis is a harm upon which Wayne Moore etucmtates tndetail, Discussion of this particntarharm is relatively uncommon in the Hierature. See Moore,75-9. 5 saminon, Federalist No. 84, 512-3.

possessed of enumerated powers, such a measure would be not only unnecessary, but preposterous...South Carolina. hals) no bill of rights NewJersey has no bill of rights. The state of New York has no bill of rights. The states of Connecticut and Rhode Island have no bill of rights... (T]his enumeration, sir, will serve to show by experience, as well as principle, that, even in single governments, a bill of rights ts not an essential or necessary measure.!0 He continued on this point: {Wle are told that there is no security for the rights of conscience. 1 ask the honorable gentleman, what part of this system puts it in the power of Congress to attack those rights? When there is no power to attack, it is idle to prepare the means of defense.107 Madison agreed that it was unnecessary and went on to explain why it would be ineffective as well. I have not viewed (a Bill of Rights] in an important light—...3. Because the limited powers of the federal Government, and the jealousy of the subordinate Governments, afford a security which has not existed in the caw of the State Governments, and exists in no other. 4. Becaune experience proves the ineificacy of a bill of rights on those occasion: when its controul is most needed. Repeated violations of these parchment barriers have been committed in every state Wherever the real power ina Government lies, there is the danger of oppression. In our Governments the teal power lies in the majority of the community, and the invasion of private rights is cheetly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrumentof the major number of the Constituents[I]n a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect as a standard for trying the validity of public acts, and a signal for rousing and uniting the superior force of the community; whereas, in a popular Government, the political and physical power may be “Withem, Speechat the Pennsylvania Convention, Ettiot, Vol. 2, 436. *Wilson, Speech at the Pennsylvania Convention, Eliat, Vol. 2, 455. Sniaiepreriinn ome ee mo StS

ET considered as vested in the same hands, that is, in a majority of the people, and, consequently, the tyrannical will of the Sovereign is not to be controuled by the dread of an appeal to any other force within the community '8 Lack of necessity or effectiveness, however, was not enough to prevent 4 pill of Rights. Yet for James Wilson, enumeration of rights also represented a danger: {[Shuch a measure would be not only unnecessary, but..dangerous..A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete. 1° Hamilton elaborated om a second danger: ([Blill of rights. are not only unnecessary in the proposed Constitution but would ewen be dangerous. They would contain various exceptions fo powers which are not granted; and, on this very account, would afford 2 colorable pretest to claim more than were granted. For why declate 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 not be restrained, when no power is given by which restrictions may be imposed? 1 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 pretence 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 anay which was not given.ne ste Sr Anion Lather ts Yroninn thon, 17 Qumihie OK,ages BY. Wotan, Spach tthe Peepteint Convention; Ett, We 2, O96. "O egmitvom, Fakenalict Ne 8M, $134.

rgeROe, Os This danger is subtly different from the one feared by Wilson. Wilson saw the enumeration of certain rights as implying that government had power over everything else; Hamilton saw that enumeration as implying government had power over the area that was being putatively protected, Madison saw a third danger: [Tlhere is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude [am sure that the rights of conscience in particular,if submitted to public definition, would be narrowed much more than theyare Likely ever to be by an assumed power. One of the objections in New England was, that the Constitution, by prohibiting religious tests, opened a door for Jews,Turks, and infidels 'tt Wilson echoed this thought succinctly “Enumerate all the nghts of men! | am sure, sir, that no gentlemen in the late Convention would have =O? attempted such a thing In response, the Anti-Pederaliets launched another salvo of arguments, each of which scored blood. The Federalist: had argued that a Bill of Rights was unnecessary; the Anti-Federalists had already argued (and the Federalists had generally agreed) that governments naturally try to expand their power and therefore demand extensive checks. The Anti-Federalists now buttressed their position with the observation that the federal government could already TT Madison, Letter ty Thomas fefferson, 17October 1788, Meyers,187. "? Wilson, Speech at the Pennsylvania Convention, Ethot, Vol. 2, 434.

clipring the Wings of Angels Chapter Two violate fundamental rights (from a natural law perspective) within the range of means available to it to implementits enumerated powers. Hence they saw a need for these natural rights to achieve the formal protection of being recognized as Constitutionalrights. Gentlemen who opposea federal bill of rights, or further declaratory articles, seem to view the subject in a very narrow imperfect manner. These have for their objects, not only the enumeration of the rights reserved, but principally to explain the general powers delegated in certain material points, and to restrain those who exercise them by fixed and known boundaries....The constitution will give congress general powers to raise and support armies. General powers carry with them incidental ones, and the means necessary to the end. In the exercise of these powers, is there any provision in the constitution to prevent the quartering of soldiers on the inhabitants?...All parties apparently agree, that the freedom of the press is a fundamental right....By art. I. sect. 8. congress will have the powerto lay andcollect taxes, duties, imposts and excise. By this congress will clearly have the powerto lay and collectall kinds of taxes whatever—....Printing, like all other business, must cease when taxed beyondits profits; and it appears to me, that a powerto tax the pressat discretion, is a power to destroy or restrain the freedom ofit.!13 The Essays of Brutus made the samepoint: It has been said...that such declaration[s] of rights...are not necessary in the general constitution, because...every thing which is not given is reserved. It requires butlittle attention to discover, that this modeof reasoning is rather specious than solid. ..The powers vested in the new Congress extend in many cases to life; they are authorised to provide for the punishmentof a variety of capital crimes, and norestraint is laid upon them in its exercise, save only, that “the trial of all crimes, except in cases of impeachment, shall be by jury; and suchtrial shall be in the state where the said crimes shall have been committed.” No man is secure of trial in the county where he is charged to have committed a crime....What security is there, that a man shall be 113 etters from the Federalist Farmer, 20 January 1788, Storing, 81-6 (2.8.197-2.8.203).