Rights and privileges are misunderstood by legislators and citizens alike. The application of law from various jurisdictions using conflicting interpretations only confuses citizens and sets the stage for the erosion of rights in spite of intent. The very purpose of civil government is for the protection of our individual rights. Municipal and state laws should constrained to that purpose as much as possible as well. Going beyond that mandate can immediately bring our rights as citizens under attack.

The relationship of state government to the national government in our federal system must not be mistaken. To allow the national government the right to tell state citizens what they can or cannot do violates the contract between the states that is the foundation of our country. The purpose of national intervention into the affairs of citizens is only allowed in the case that state law becomes abusive of the rights of citizens. As long as the state is not abusive of rights, it is in compliance with the federal contract and national interference is not needed. Ultimately, that was the reason for the 14th Amendment.

The 1875 Civil Rights Act was declared unconstitutional by the Supreme Court in 1883 because of the over reaching application of national power, ostensibly through the 14th Amendment. Here is an excerpt from that ruling referring to individual rights as positive rights:

“Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect: and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect …”

In other words, if the state has not passed law abusive of individual rights, the federal government does not have standing to interfere in the affairs of its citizens. To do so would violate the respected order of jurisdictional limits.

It is unfortunate that, after the Civil War, many states did not adequately protect the rights of former slaves. In fact, many abuses of national power can be traced to an inadequate response by the states to maintain the sanctity of individual rights. However, national government encroachment into these areas results in law that coerces rather than protects. The results may help some citizens, but it is almost always at the loss of rights of others.

The current health care law is a prime example of national law that oversteps state jurisdiction and results in the loss of rights of state citizens. By mandating an imaginary “right” to health care, the labor of healthcare providers and the property of taxpayers are unfairly infringed. If, indeed, such a right did exist, the state should respond by protecting that right. But it is hard to protect a right that doesn’t exist, and national encroachment just makes things worse.

These types of actions by the United States Congress infringe on the rights of citizens to be secure and free in their own lives. It also infringes on the responsibility of municipalities and states to protect those rights.

If Congress oversteps its constitutional bounds in this manner, it is the right and responsibility of the states to overrule Congress and protect the Life, Liberty and Property of state citizens. If the state doesn’t do its job on behalf of its citizens, then we may find we have come to Liberty’s end.

Lex Green [send him email] is the state chapter coordinator of the Illinois Tenth Amendment Center

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  It was designed to work with the Tenth Amendment to reinforce limits on the federal government.

The original Constitution contained three types of restrictions on federal power:

Type 1:     The Constitution listed things the government could not do (e.g., pass an ex post facto law).

Type 2:     The Constitution enumerated the powers the government was to have (e.g., regulate interstate commerce, but not agriculture).

Type 3:     The Constitution included specific restrictions on specific powers (e.g., Congress could appropriate money for an army, but only for a two-year period).

Some argued that Type 1 should be expanded with a Bill of Rights. But others (James Madison among them) pointed to a risk in that proposal.  Because of the legal maxim Designatio unius est exclusio alterius (the designation of one thing implies the exclusion of another), adding a Bill of Rights might encourage people to disregard the Type 2 and 3 restrictions on federal power.

When the demand for a Bill of Rights prevailed, Madison agreed to draft one – but he included what became the Ninth Amendment to make it clear that expanding Type 1 did not mean abandoning Types 2 or 3.

A key to reading the Ninth (and Tenth) Amendments properly is to know that the Founding Generation often used the words “right” and “power” interchangeably. (We more rarely do the same, as when we refer to the President’s “right” to veto a bill.)  That is how they were used here.  If you sometimes read the word “rights” in the Ninth Amendment as “powers” and “powers in the Tenth Amendment as “rights,” you can better understand their meaning.

Few parts of the Constitution have been so misunderstood as the Ninth Amendment.  For example, some have argued that it reserved a mass of “natural rights” that the Courts should enforce against the federal, and even the state, governments – such as abortion, property, and contract rights.  That misunderstanding arises from failure to understand that “rights” in the Ninth Amendment means “powers.”

The Ninth Amendment was not designed to enable the Courts to create new rights – or even to recognize old ones.  It was designed to work with the Tenth Amendment to preserve the Constitution’s other restrictions on federal power.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.

“States’ Rights” is an Anti-Libertarian Concept

The concept of federalism is properly used to describe a system of government in which sovereignty is constitutionally divided between the federal government and the states.

In contrast, the term “states’ rights” is a fraudulent and profoundly ANTI-Libertarian concept that has no other purpose but to deceive and rob us of our natural, inalienable, inseparable, non-transferable rights as human beings.

The Ninth Amendment says: “The enumeration in the Constitution, of certain RIGHTS, shall not be construed to deny or disparage others retained by the People.”

In other words, just because the Constitution doesn’t mention a particular right, that doesn’t mean we don’t have that right – and those rights are retained by the people, not the State or the Federal Government.

The Tenth Amendment says: “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

States and governments have powers, but not rights. Only people can have rights. The US Constitution and Bill of Rights were conceived and written to limit government, not allow it to usurp our rights through some insipid oxymoron like “States’ Rights.”