The Forgotten Amendments

During a television interview, a former Chief Justice mentioned in passing "the eight amendments in the Bill of Rights..." (emphasis mine). One would hope that he was simply nervous about being on TV, although it's possible that he may have forgotten about the Ninth and Tenth Amendments. After all, no one on the Supreme Court has ever paid much attention to them.

This is a pity as the Ninth and Tenth Amendments were intended as instructions on how to interpret the rest of the Constitution.

Alexander Hamilton (one of the authors of the Federalist Papers, the official "Bible" of the Supreme Court) was opposed to having a Bill of Rights at all, arguing that later courts would only recognize those rights explicitly included. Anti-Federalists argued that without a Bill of Rights, the courts would probably recognize no rights whatsoever. (Both sides were right.) James Madison (another Federalist Papers author) suggested a solution, which later became the Ninth and Tenth Amendments.

The Ninth Amendment specifically says that the previous eight amendments are intended only as a sample, and that the other rights not included are just as important as those included. In fact, the Bill of Rights mostly consists of a list of grievances against the British. They certainly did not anticipate radio and television or socialized education when they were writing the First Amendment.

Conversely, the Tenth Amendment states that the only powers of the Federal government are those explicitly given to it in the Constitution. (The powers of state governments are limited primarily by their respective state constitutions.)

In other words, the Court is to be generous in their interpretation of individual rights and strict in their interpretation of government powers.

Following this line of reasoning, there are no such things as "implied powers" in the Constitution. The power to raise an army does not imply the power to conscript citizens. The power to collect taxes does not imply the power to confiscate assets without due process. The power to coin money or establish post offices does not imply the power to forbid competition. The power to regulate interstate commerce does not imply the power to regulate all commerce.

Most important of all, there are no such things as "emergency powers" (excepting the suspension of Habeus Corpus). When the president declares a state of national emergency, what he means is that the Constitution is suspended (as Andrew Jackson put it, "How many troops does the Supreme Court have?"). These declarations, by FDR in 1933, Truman in 1950, and Nixon in 1970 and 1971, gave force to 470 provisions of federal law. It was not until the National Emergencies Act of 1976 that Congress provided a formalism for terminating a declared national emergency. The Agricultural Adjustment Act of 1933, for example, which explicitly ends "whenever the President finds and proclaims that the national emergency in relation to agriculture has been ended", is still in effect.

It was because of the Tenth Amendment that the Eighteenth Amendment was passed. Otherwise Prohibition would have been unconstitutional. As it turns out, they probably didn't have to bother. The Supreme Court has almost always ruled in the opposite direction, interpreting rights strictly and powers generously. In the case of RICO laws, they simply argued that the war on drugs was more important than the Constitution.