It seems no matter where I am, I am called upon to become the teacher of introductory students of American government. In this entry, I will instruct some of those who visit the blog about the distinction between “powers” and “rights.” Most of you already know this, but you may find the argument helpful in dealing with those who don’t—of which there are many.
Powers concern state action not forbidden by federal judicial interpretation of the US Constitution. In contrast, rights concern freedoms governments, state and federal, cannot legally curtail.
Let us examine the text of the Tenth Amendment to the US Constitution, which is, with the possible exception of the Second Amendment, the most misunderstood and misapplied amendment:
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.
You will note that nowhere in the amendment is any reference made to rights. Read it again. The amendment concerns powers. The meaning of the amendment is explicit: if the federal government amends the Constitution, or if through closer examination the federal judiciary reveals more powers inherent in the Constitution, then the power of states and of the people may be restricted; but if this does not happen, then the states and the people enjoy the balance of (theoretically unlimited) powers.
This is something quite different from the question of rights, which neither state nor federal governments may curtail without good reason; indeed, state and federal governments are required to protect and preserve our rights.
Let us now examine the text of the Ninth Amendment to the US Constitution:
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
This amendment, unlike the Tenth Amendment, does concern rights. Please read it again and note that nowhere in the amendment is anything said about states. The reason for this is obvious: states have no rights; only people do. This amendment exists to accommodate state-level bills of rights that are more expansive than the federal bill of rights. The people of the various states were concerned that, if rights were outlined in a federal bill, this might restrict rights listed in state bills. Those drafting the federal bill wanted to assure the people of the various states that the act of drawing up a federal bill should not be construed as restricting state bills.
The Ninth Amendment also means that citizens living in states that either do not have a bill of rights or have a more restrictive bill enjoy rights recognized by the federal government that states cannot restrict. Indeed, the key dynamic in the history of freedom in the United States is the progressive incorporation of all the states within the US Bill of Rights so that all citizens have the same rights everywhere at all times.
Here’s the bottom line: any state that restricts a constitutionally-guaranteed right, even if no judgment has been made by a federal court invalidating that restriction, is exhibiting tyrannical behavior. Case in point: the Texas Homosexual Conduct Act. The victims of this act of tyranny sought relief from the Supreme Court (Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 2003). The law did not suddenly become an act of tyranny because the Court overturned it. Indeed, any court failing to overturn the conviction and invalidate such a law was perpetuating that act of tyranny.
freedom and reason 