An acquaintance recently asked me to prove my American mettle by reciting the ten amendments of the Bill of Rights (not verbatim, thank God, just the gist). It didn’t go very well. Thanks to dramas on TV, I nailed #’s 1, 2, 4, 5 and 6. I just passed muster with 7, 8 and 10 by reaching deep into the recesses memory, but I had nothing to offer for 3 and 9. Nothing. In my defense, I don’t think the third amendment has made a public appearance in my lifetime. No one should be deported or sent to Guantanamo for not knowing the name of a recluse, so I should get a pass on that one.
But then there is the 9th amendment. It reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Huh? Or in texting parlance, wtf? The holes created in that sentence are so large that a proverbial truck of any size could be driven through them. Surely, James Madison wrote more clearly than this.
“Certain rights”?–So not all of them, but only some? Or does this mean, only the rights that no one is still quibbling about, so they are “certain”?
“Shall not be construed”–Beware of the passive voice. Is the unexpressed agent meant to be the courts (they think so), the executive (he thinks so), the population of greater Los Angeles?
“To deny or disparage others retained by the people”–I don’t know about you, but I’m pretty sure some of my rights are disparaged on a regular basis even while they aren’t being denied. Is that unconstitutional?
My limited research on the rationale behind this odd amendment (“odd” in content, I mean, and not just because it is, in fact, and odd numbered amendment) suggest that it was stuffed in there as a compromise. The compromise was a convenient way to appease that unruly lot of patriots who feared the power of the federal government. Having just thrown off the yoke of monarchy, they were suspicious that rule of Congress/the President might seep out of the container of limited government and make a mess on the front stoop of the states. Hmmm. I think the anti-federalists might have been drinking a bit too much before the Philadelphia Convention to agree to the wording of the 9th. The schnockered got snookered on this one. The Supreme Court hardly ever referenced the amendment until the second half of the 20th century. And irony of ironies, the Court has usually cited it in overturning a state law.