It’s amazing how many people have a fundamental misunderstanding about the Founding Fathers and the US Constitution. It’s less surprising, however in the context of how bad our public schools are failing our children and by extension, the country as a whole. Now, this isn’t an article on why it’s not the solution. I believe Torcer was eye-opening in explaining why gun control is a dead solution. This isn’t a defense if the 2nd Amendment or a statement of the impracticality of its repeal. Rather this is more focused on the context of the Bill of Rights as a whole.
Believe it or not, the idea of placing a Bill of Rights in the US Constitution was controversial. There was a huge divide when the United States was transferring from a confederacy to a federalist form of a republic (not a democracy). A stronger central government was and still is a grave danger to the rights of the people. Then Thomas Jefferson, anti-Federalist, side of the spectrum sought to have a Bill of Rights in order to place explicit limitations on the government. The Bill of Rights was a compromise on the Alexander Hamilton, Federalist, side of the spectrum. The 9th Amendment was the compromise on the anti-Federalists part:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Danger to Freedom
You might be wondering why a Bill of Rights was so controversial? What seemed like a no-brainer really wasn’t. Despite favoring a larger government than Thomas Jefferson, rivals like Alexander Hamilton did not want to explicitly protect rights through a Bill of Rights because the protection of some would lead to the exclusion of others. Hamilton pens Federalist 84 arguing:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.
Hamilton follows the logic whereby if rights are given extra protection, the Constitution would then invite tyrants to use these provisions as mere limitations. Thus these tyrants would be assuming power that the Constitution did not grant. He uses free press as his primary example.
For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
It’s amazing, looking back, how valid Hamilton’s arguments are in modern contexts. The danger he describes, we see today in various forms. The protection of free speech has led to the regulation of speech. The protection of religion invited the regulation of the pulpit
This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Threats to unenumerated rights
The 9th Amendment is hard to use in defense of a freedom. Though to their credit, I do see liberals claim it more often, while conservatives champion the 1st, 2nd, and 10th Amendments. In truth, we see the 9th Amendment in action all the time. The Amendment defends a person’s right to be gay without government intrusion. This Amendment is succeeding for leftists wants on multiple fronts. However, on a broader scale, the government has regulated and in some instances outright banned freedoms.
In theory, a person should be able to donate money towards causes they believe in yet campaign finances are highly regulated which is why we have Super PACs. Courts are ruling that Christians can’t act on their religious beliefs regarding homosexuality. The right to life can be taken away from the unborn because apparently, the right to life wasn’t clear enough (though to be fair Roe v Wade had virtually no Constitutional pretext for their decision.) The government could penalize you for not purchasing healthcare. The list goes on but I’m sure you see the point about an overreaching federal government.
Jefferson was right also
In the end, we truly do need a Bill of Rights. Many abusers have threatened the freedoms of others on speech, guns, and investigations. Conservatives hold the lesson that freedom is a generation away from extinction as Ronald Reagan said. The culture during the time of the Constitution valued natural freedoms. How else would rivals of politics both seek the same goal? If that same culture existed today, Alexander Hamilton would be right that a Bill of Rights was unnecessary. But today, a prominent belief is that natural God-given rights derive from the government. A culture that believes rights come from the government necessitates a Bill of Rights to protect from the government taking away from those freedoms.
I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government.
The Second Amendment is under fire, and if we had, Hamilton’s way, the battle may have been lost already because our view of government has changed. Though luckily the prevailing Heller v DC case solidified the right to private gun ownership ending leftist hopes to confiscate our guns. But Hamilton’s point remains that the protection of the right to firearms has encouraged the regulation of them. How many gun control arguments begin by stating that the founding fathers hadn’t envisioned “AR-15 military-style assault rifles?” A good amount these days. These may be the semblance of reason that Hamilton was referring to.
- The advancement of conservatism needs to be done emphasizing that the source of our freedom is not the government, rather they are natural and God-given.
- The 9th Amendment is largely what we make of it because of how open-ended it is. We need to strive to protect implicit freedoms whether or not we agree with them.