The Non-Enumerated Rights
It has been said that "governments are instituted amongst men" by Thomas Jefferson. The argument for the purpose of which; is to secure rights and privileges consistent with the views of society, during a specific time period. The natural process by which human's natural inclination to use power by force or government has never been so greatly expressed since the Age of Enlightenment.
Throughout History governments have forced populations of people to do what in nature would seem abhorrent. In nature if an animal is caught stealing food from another animal, it will fight to retain what it has stolen or flee. What one would never see is a criminal animal submit to being captured, though in human society people go to jail without a word of defiance. In some cases, accepting that they've done wrong and apologizing for disrupting society.
On the other hand we also have those who ascertain innocence, and claim they have been wronged by society, or government's power. As in the Holocaust, societies can agree that governments have used their powers improperly in history, thus an attempt to limit the wrong doings done by society and government power has been sought.
This brings us to the issues of the day, in which the United States was established. The efforts of the People were to attempt to protect persons of religious faith, scientific reasoning, and trade giving rise to the philosophy of limited government and a Federal form of Government. As with any persons who've attempted to regulate power in society issues arose. Under the Articles of Confederation some argue the issues were monetary others argue it was not powerful enough. It seems that both had merit and the Articles of Confederation were scrapped giving rise to the Constitution of the United States, though not ratified with ease.
The self proclaimed federalists assumed the role as proponents for the ratification of the constitution believing this was the best way to limit government power and protect the ideals of their society. In the constitution a limitation on what the Legislative, Executive, and Judicial branch could do was put in place consistent with the ideals of limited powers and federalism. Yet, the Anti-federalists were largely against the constitution, as it contained no clause to protect the rights of the States or the People.
In the attempt to satisfy this argument the Bill of Rights was offered up as a condition for ratification. These became the first Ten Amendments of the Constitution, and while the language in these amendments is strikingly clear, Amendment IX is quite the opposite. For, the assumption of rights is hardly a clear legality or definition of something that has not been said.
In other words what rights does a Statesmen have if it has not been stated, and how do they know if they've been violated? To be direct these questions have never truly been answered, while only few references to it have been made. The Court has recognized that a right to privacy is protected under Amendment IX, although not expressly detailed in the Bill of Rights. The decision was reached using the due process of law clause in Amendment IV in the case Griswold v. Connecticut.
Privacy almost seems trivial in a way, it is one of the reasons we have doors inside our houses. It is the reason meetings are held behind closed doors, and people don't tell strangers personal information about themselves. It is the very reason passwords are created, and letters are sent in confidentiality. We ask that our information with doctors be considered private, in the end even our very thoughts are in an effect private until we decide to share them. With all this privacy built into our society do we need an Amendment to tell the States or the Legislative branch their unable make laws that take away our privacy?
Apparently we do and it is a great thing the Anti-federalist answered this question long ago against the wishes of Alexander Hamilton who argued that we do not need any Bill of Rights, because the legislative branch was told what it could do under the constitution and by implanting such words those not stated would be lost. James Madison thought this problem through taking in the arguments of both sides. One thing he may have understood is whomever has power those persons have the ability to construe the meaning of what can be done. To Construe: means to interpret and depending on who is interpreting the constitution, it has come to mean many different things. What James Madison imposed was a restriction on the interpretation itself, which is to state that any interpretation that denies or disparages the rights of the people is unlawful, such as the Right to privacy, trade, contract, travel, speech, religion, peaceful assembly, and others brought into society from the natural world.
The word disparage is not a word of common use in today's world and it is quite different than to outright deny something. One of its meanings is to depreciate by indirect means, thus any law enacted by interpreting one of the enumerations in article I section 9 of the constitution that indirectly depreciates the right to privacy, trade, contract, travel, speech, religion, peaceful assembly, or others brought into society from the natural state of being is unconstitutional in its interpretation.
A purist in language could take amendment IX through the above interpretation to the extreme by stating any action that a governing body performs indirectly depreciated the right to aforementioned rights, though that was not the intent. A certain amount of rights were given to governing bodies to directly affect society, some being trade with foreign nations, the several States, Indian Tribes, Taxation, to Coin Money, etc...
The Right given away to the legislative branch under extreme debate was the ability to regulate Commerce with foreign Nations, the several States, and Indian Tribes. This was and still is an issue of great concern as to how much power can be asserted under the Commerce clause and at what point is it denying or disparaging the right of sovereign people to trade and contract? A good case to look at is one in which a direct challenge to this federal power was the issue, Wickard v. Filburn.
Roscoe Filburn was a farmer who was formally charged with growing too much wheat. He challenged the federal government's law, The Agricultural Adjustment Act of 1938, and lost the case. To invoke his argument he stated rules regarding local commerce and the Fifth Amendment, but both were struck down in what some folks considered the federal government's largest grab of power under the commerce clause, aided by the court.
It is conceivable that under Mr. Filburns argument there was no legal precedence to suggest that the government had committed a crime against him. No property, life or liberty had been taken from him, rather a fine imposed. Thus the Fifth Amendment had no standing and the commerce clause does not state what cannot be regulated, thus the court's ruling could be considered proper in this case, with one exception.
The one exception to this case is Amendment IX which was never directly addressed to the court. Proper wording to make a challenge under this circumstance could be something like this, The Agricultural Adjustment Act of 1938 disparages and or denies an individual the right to produce and abstain from the general market place. If the ability to produce is an un-enumerated right then the government's interpretation of the commerce clause depreciates the right to produce and abstain from the market place. The reason this argument is one that must be approached is, if person's do not have the right to produce then who does?
To answer this we must look at the history of America. America has been a self sustaining, self producing land of individuals since its settlement. The Mayflower compact is one of the first examples of self government in the new land, and for years folks in this new land were so far apart from their respective motherlands that help was not expected. It was not until England decided to take a more direct role in Americas economy and laws, that New Englanders decided rule under monarchy was not for them.
These examples can be shown under the Molasses Act, the Stamp Act, the Tea Tax, and the Intolerable acts that attempted to regulate industry, and property. It was during these times that King George began to meet resistance to his Mercantilist policies. It was in this time that Americans were heavily involved in the underground economy, as they considered the king's monetary policies in America illegal and detrimental to the economy of their homeland and livelihoods.
When we take this history into consideration we can regard economic liberty as an underpinning of our society. The Executive Branch of our government through the help of the Legislative and Judicial Branch's have undermined this underpinning of our society by regulating virtually every industry. This has happen through various forms of misinterpretation of the commerce clause. Those misinterpretations need to be noted and impugned. Without a misinterpretation of this clause, how else do you go from a limited government to an all powerful all intrusive government? Somewhere along the line the federal government has misinterpreted the extent of their power and the American people have not corrected the understanding.
One way to begin to correct this understanding is through proper education of limited government using as many sources as possible. There also has to also be some form of legal argument for the proper curtailing of the interpretation of government power that the court recognizes. A good place to start might be in what the court considers a fundamental right. In Washington V. Glucksberg, a fundamental right was observed as something "deeply rooted in this Nation's history and tradition," and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed."
The freedom to produce is an exercise of ordered liberty which would not exist if sacrificed causing unjust poverty on individual who did not find favor with the government. Economics has shown that when monopolies are created and multiple players are not allowed to produce competition, the productivity of goods falls in proportion. Subsidies, reforms and taxes which favor one company over another, is a form of injustice to productive persons, by diminishing the right to produce by maintaining an unequal playing field. This has been known for generation noted beautifully by James Madison addressing the article 1 section 8 clause; in James Madison, Import Duties, House of Representatives, 9 Apr. 1789 Papers 12:69-73;
"In the first place, I own myself the friend to a very free system of commerce, and hold it as a truth, that commercial shackles are generally unjust, oppressive and impolitic--it is also a truth, that if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out. Nor do I think that the national interest is more promoted by such restrictions, than that the interest of individuals would be promoted by legislative interference directing the particular application of its industry. For example, we should find no advantage in saying, that every man should be obliged to furnish himself by his own labor with those accommodations which depend upon the mechanic arts, instead of employing his neighbour, who could do it for him on better terms."
Being that James Madison is considered the father of the Constitution one would hope that his words are taken with consideration by the courts. Furthermore one could look at Alexander Hamilton's Excise tax of 1791 which lead to the Whiskey Rebellion to see how Americans felt about taxation of their production during the founding of our country.
Let us hope that the view of limited government, along with economic and personal freedoms has not gone down the drain of history forever, lest we wish governments heavy hand wipe clean what the invisible hand created and leave destitute human progress and ingenuity. Governments social restructuring through petitions of races and sexes has helped to create a more equal society than that of our past, though the petition to decrease the ever increasing state, must be petitioned by all for redress of the fundamental rights that would truly flourish under the new generations that have not had to deal with the past transgressions of human rights to specific races or sexes.
It is in the new generations that Martin Luther King's dream may be realized that a man is judge by his character. Yet character is something that can only be seen by individuals and not governments, so we ask that the government allow us to trade and contract with those of good character, while government bring justice to those who wish to do harm to a peaceful society of equals. Equals in ability not class or ideology rather equals in the market place where ones ideas and creations can fulfill the urges and necessities of thy neighbor.
I observed...that the more public provisions were made for the poor, the less they provided for themselves... on the contrary, the less was done for them, the more they did for themselves... Benjamin Franklin