For example, in the Supreme Court struck down part of a federal law requiring state and local law enforcement to conduct background checks for prospective gun purchasers. In the court ruled the government could not compel states to expand the joint state-federal Medicaid program by taking away all their existing Medicaid funding if they refused. The Tenth Amendment also allows states to guarantee rights and liberties more fully or extensively than the federal government does, or to include additional rights.
For example, many state constitutions guarantee the right to a free public education. Several states give victims of crimes certain rights. Some state constitutions explicitly guarantee equal rights for men and women.
Some states permitted women to vote before the Nineteenth Amendment of , and people aged 18—20 could vote in a few states before the Twenty-Sixth Amendment of Several states also explicitly recognize a right to privacy. State courts sometimes interpret state constitutional provisions to include broader protections for basic liberties than their federal counterparts. These state protections do not extend the other way, however. For example, if Congress decided to outlaw hunting and fishing and the Supreme Court decided this law was a valid exercise of federal power, the state constitutional provisions that protect the right to hunt and fish would effectively be meaningless.
The people would have to amending the Constitution through a national convention of the states. More concretely, federal laws that control weapons and drugs override state laws and constitutional provisions that otherwise permit them.
While federal marijuana policies are not strictly enforced, state-level marijuana policies in Colorado and Washington provide a prominent exception to that clarity. Although the specific term privacy does not appear in the Constitution or Bill of Rights, scholars have interpreted several Bill of Rights provisions as an indication that James Madison and Congress sought to protect a common-law right to privacy as they understood it: a freedom from government intrusion into personal lives, particularly at home.
Alternatively, we could argue that the Ninth Amendment anticipated the existence of a common-law right to privacy when it acknowledged the existence of basic natural rights not listed in the Bill of Rights or the body of the Constitution itself. Although several state constitutions do list the right to privacy as a protected right, the explicit constitutional recognition by the Supreme Court emerged in when the court spelled out the right to privacy for the first time in Griswold v.
Connecticut , a case that struck down a state law forbidding even married individuals to use any form of contraception. Although many subsequent Supreme Court cases also dealt with privacy in the course of intimate sexual conduct, privacy also matters in the context of surveillance and monitoring. Although the Griswold case originally pertained only to married couples, in it was extended to apply the right to obtain contraception to unmarried people as well.
The contraceptive coverage controversy of the Hobby Lobby case demonstrates the topics continuing relevance. Questions and controversy over abortion remain in the public arena today as a result. Does one life take precedence over another? When is a fetus a human being with unalienable rights? When does life begin? Is abortion government sanctioned murder?
The government had traditionally erred on the side of the life prior to Roe v. The legal landscape changed dramatically as a result of the ruling in Roe v. Wade , [9] when the Supreme Court decided the right to privacy encompassed a right for women to terminate a pregnancy, under certain scenarios. Starting in the s, Supreme Court justices appointed by Republican presidents began to roll back the Roe decision.
In Roe v. Wade , the U. Supreme Court rejects a Texas law that outlaws abortion because it restricts the right to privacy. In Richmond Newspapers, Inc. Virginia , the U. Although that right is not specifically listed in the Constitution, the Court finds the history of the Bill of Rights makes its ruling proper. In United States v. Lopez , the U.
Supreme Court grants the states more rights. It rules that Congress overstepped its authority under the commerce clause when it passed the Gun-Free School Zones Act. To uphold a law that determined the punishment for gun possession and gun use near schools, the Court rules, would convert the commerce clause authority into general police power held only by the states under the Tenth Amendment. A federal gun control law, known as the Brady Law, imposes on local authorities the obligation to perform mandatory background checks of potential gun buyers.
But the Constitution that emerged from the Constitutional Convention contained nothing like a comprehensive bill of rights. Most state constitutions of the time had bills of rights, and many citizens—and members of the Constitutional Convention—expected the new national constitution to have one as well.
Nonetheless, the state delegations at the Constitutional Convention voted against including a bill of rights in the Constitution. The sense of the Convention delegates was that a bill of rights, in the context of the federal Constitution, was unnecessary and even dangerous.
It was considered unnecessary because the national government was a limited government that could only exercise those powers granted to it by the Constitution, and it had been granted no power to violate the most cherished rights of the people.
They even maintained that inclusion of a bill of rights would be dangerous, because it might suggest that the national government had powers that it had not actually been granted. For why declare that things shall not be done, which there is no power to do?
Such a list might indirectly endanger any rights not included on it. The Constitution accordingly sought to secure liberty through enumerations of powers to the government rather than through enumerations of rights to the people.
Not everyone was convinced by these arguments. Indeed, the absence of a bill of rights threatened to derail ratification of the Constitution, especially in key states such as Massachusetts and Virginia. A number of states ratified the Constitution only on the express understanding that the document would quickly be amended to include a bill of rights. The first Congress accordingly proposed twelve Amendments, the last ten of which were ratified in and now stand as the Bill of Rights.
The first eight of those ratified Amendments identify various rights of the people involving such things as speech, religion, arms, searches and seizures, jury trials, and due process of law. The Tenth Amendment warns against using a list of rights to infer powers in the national government that were not granted. Darby No law that would have been constitutional before the Tenth Amendment was ratified becomes unconstitutional simply because the Tenth Amendment exists. The only question posed by the Tenth Amendment is whether a claimed federal power was actually delegated to the national government by the Constitution, and that question is answered by studying the enumerated powers, not by studying the Tenth Amendment.
That was the understanding of the Supreme Court for nearly two centuries. Nonetheless, beginning in , a line of cases has emerged that seems to give substantive constitutional content to the Tenth Amendment.
In , in Garcia v. Implicit or Unenumerated Rights Viability. McCullough v. Maryland Zone of Privacy. Legal analysts agree that the ambiguity in the Ninth Amendment presents interesting topics for those who chose to invoke it. In fact, Associate Justice Robert H. Jackson described his thoughts surrounding the Ninth Amendment.
The final version of the Ninth Amendment after five attempts by James Madison leaves much to the imagination of those who debate its inclusion of natural or lack of natural rights.
The depth of its effect can not be measured by its lack of verbiage. The Ninth Amendment was meant to be a living, breathing construct for additional individual rights to be vetted and born.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Enumeration is the listing of or specifying of a particular and thorough orderly record. Following this context, is the term construed. Scholars regard the The Federalist Papers, originally referred to as The Federalist, as a compilation of 85 essays written in persuasive detail by Alexander Hamilton, John Jay, and James Madison culminating in These essays appeared in several New York state newspapers.
In short, the purpose of the Federalist Papers was to encourage support to ratify the United States Constitution. The authors took extra attention and time to provide the necessary methodical explanation for each portion of the United States Constitution.
The diametrically opposed positions of the Anti-Federalists and Federalists remain at the forefront of every debate regarding the United States Constitution. The Anti-Federalists advocated for individual rights to help balance the power of the federal government, while Federalists noted the controlled method of providing a limited number of individual rights would contradict the argument for additional rights and symbolize any additional rights as unconstitutional.
We will explore how two such cases with very different legal issues have leveraged and highlighted the depth of the Ninth Amendment.
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