Thank you. Very good articulation of the nuances of the 9th and 10th amendment.
I am no constitutional scholar by any means but jay59s contention that 10th directs unenumerated rights to the state is absurd.
It is concerning that people believe that kind of thing.
The problem with a lot of absolutist ... ahem... "thinkers" of the "state's rights!" ilk is that their argument are almost always absurd. I'm probably the only one on these boards who has actually
argued a "State right" issue to the Supreme Court (on behalf of a State, and successfully), so I come at this with a pretty good understanding of the subject matter.
The problem with the formulation usually used (depending on the desired outcome) is that it presumes that "rights" flow from government, either State or federal. That is fundamentally at odds with the philosophical and legal understanding of the founders. The reverse is actually true.
They were, by and large, adherents to "natural right" theory - that is, all individuals have "inherent rights", either given by god or bestowed by nature - as in "we hold these truths to be self-evident, that all men are ... endowed by their Creator with certain unalienable Rights". Those rights
precede government. So, "Governments are instituted among Men, deriving their just powers from the consent of the governed". That is why the Bill of Rights is structured as it is - acknowledging the accepted existence and parameters of some rights, but also expressly noting that others exist that are "unenumerated".
The responsibility of government thus becomes twofold: to protect those inherent rights of the governed, and but also to restrict those rights, as necessary, in the interests of others so governed. All governments restrict the rights of their citizens
vis a vis each other, but with their implied consent. The question then becomes, how much restriction is allowed and by whom? (That's where the courts come in.)
It is true that the 10th Amendment was intended to act as a catch-all for the authority of State governments regarding their legislative powers, just as the 9th was intended to be a catch-all for unenumerated rights. The fundamental error in
Jay59's formulation (and misunderstanding of the role of the 14th Amendment) is that those rights exist in individual citizens as a birthright, not as a grant from a government. Therefore, to take them away, requires an authorization
from the governed.
Initially, the Constitution's Bill of Rights only operated against the federal government. Very early on it was realized that this formulation was a mistake, but the political power of the slave States prevented a correction of that error for several decades. After the Civil War, however, there was the political will and ability to execute that correction - the 14th Amendment.
That is why the language of the 14th Amendment was so specific - "No State shall..." and why the "privileges and immunities of citizenship" were specifically included in the Amendment.
It is important, in my view, to recognize that this principle applies to
all such "inherent rights" whether enumerated, implied or unenumerated. The same proscription applies to privacy interests to protect abortions as to protect firearm possession. Ideologues don't like to think of it that way.