In two previous articles, I’ve discussed five areas in which the Roberts Republican Court has savaged the U.S. Constitution. With this article we continue this exploration. To begin, let’s look at the Ninth and Tenth Amendments to the Constitution. These were ratified in 1791, by the same writers and populations which had ratified the Constitution in 1789. (Here are the first two articles: "Rights the Roberts Republican Court Has Taken From Us" and "Racist Roots of the Roberts Republican Court."
The Ninth Amendment
The 9th Amendment is only one sentence long. It reads, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Amendment deals with “rights” rather than with “powers,” which are the subject of the 10th Amendment.
The Founding Fathers lived in what has come to be called the Age of Enlightenment. They were part of a transition from the scientific ignorance and religious fantasies which had governed Europe (and most of the world) for centuries. Benjamin Franklin had been just a boy in Boston when Puritan minister Cotton Mather started his scientific experiments with smallpox inoculation in 1723. Franklin was an old man when the Constitution was ratified in 1789, and died before the Bill of Rights was ratified.
The Age of Enlightenment saw an explosive expansion of knowledge in science and ethics and history. Boys who were born into societies with official churches grew into men who opposed compelled religions. Franklin was born into a society in which slavery was common; he owned slaves. But by 1762, he had become a passionate abolitionist.
The Age of Enlightenment was a time of recognizing that people could have, and should have individual rights. Some people, then as now, spoke of “natural rights” given by nature or god(s) and not dependent on the largesse of any political state. When they wrote of “rights...retained by the people,” they wrote in the context of a society recognizing that new ideas and new rights were being recognized and considered every day.
During the Constitutional ratification debates, in speeches and letters and newspaper articles (sorry, no podcasts or Fox News coverage) people worried that some future court could find that individual rights not enumerated in the Constitution would not legally exist. Hence the 9th Amendment, which said, explicitly, and clearly, that such rights DO exist, and “shall not” be denied.
But in Dobbs v. Jackson Women’s Health Organization, the Roberts Republican Court stated that there are no rights retained by the people, other than those enumerated in the Constitution. The Founding Fathers’ original language is in the 9th Amendment. The Founding Fathers’ original intent is in the 9th Amendment, and stated in dozens of speeches, articles and letters by the Founding Fathers. The Roberts Republican Court says that it doesn’t care what the Founding Fathers said or intended. For the benefit of the powerful, the ruling castes, individual rights are now excised from the Constitution.
The Tenth Amendment
The 10th Amendment is similar to, but different from, the 9th. Again only one sentence long: “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.” The 9th Amendment dealt with “rights,” all of which are reserved to the people. The 10th Amendment deals with “powers,” which are reserve to the States, OR to the people.
The Founding Fathers understood that “states” government entities, had to have powers. The purpose of giving political entities powers was to make them able to administer societies, and to deal with other societies. Those powers given to the states, including the new federal government, enabled them to protect the people and the people’s rights.
The Founding Fathers didn’t think of states as having rights. Individuals have rights. Not states and not corporations. What powers were retained by the people, rather than the states?
The people retained the power to control their state politicians. The people of each state have ratified a state Constitution. And most of these have the same tri-part government structure as the federal government - a legislative branch to pass laws, an executive branch to manage government, and a judicial branch to enforce laws and to protect people from laws that violate the Constitutions, federal and state.
In the Dobbs case, the Roberts Republican Court said, for the first time in U.S. history, that state governments have rights, including the right to take individual rights away from people. The Roberts Republican Court said that the states have this “right” because of the 10th Amendment, which deals only with powers and not with rights.
But in fact, the Roberts Republican Court did not mean what it said. It used the 10th Amendment in the Dobbs case to say that states can take rights away from people, despite the clear language of the 9th Amendment. But then the Court announced that it has accepted a case to be heard next term, in which corporate Republicans are asking for the Roberts Republican Court to rule that the people do not actually retain any power to control their individual state governments in ways that corporations don’t like.
In state constitutions and laws, state courts can find that their state legislature has violated the state Constitution. That sounds pretty parallel to how the federal government works. This term, the Roberts Republican Court ruled that the federal legislature doesn’t have the Constitutional power to create an executive branch agency and empower it to regulate air pollution. (OR, for examples, the power to create an executive National Institutes of Health to conduct medical research, or an executive Food and Drug Administration to protect people from adulterated foods!)
The concept is clear, and historical. Legislatures have been overreaching since the nation was formed, and the Courts have reined in such overreaching. And at the state level, some state supreme courts, acting on their own state constitutions, have been stopping state legislatures from violating state constitutions with new laws that limit voting rights. Numerous state legislatures are attempting to end the “one man one vote” concept of our national Constitution. Some also want to end the 15th Amendment’s guarantee of voting rights to people of all races and nationalities and religions.
In Moore v. Harper, North Carolina Republicans trying to gerrymander non-white voters out of voting rights, were overruled by the State Supreme Court, which held that their gerrymandering efforts violated the State Constitution, without having to get into voters’ federal Constitutional rights. The Republicans then asked the Roberts Republican Court to overrule their own state Supreme Court, and hold that gerrymandering, in violation of the State Constitution was permissible.
The ONLY reason for the Roberts Republican Court to take this case is for the opportunity to rule that a State Supreme Court cannot overturn unconstitutional actions by a state legislature. The decision to take the Moore v. Harper case was announced after the release of the Dobbs (abortion) case, with all of its faux sophistry about the 10th Amendment empowering State governments.
So the Roberts Republican Court is making it U.S. Constitutional law that the 10th Amendment allows State legislatures to violate their own Constitutions, but does not empower State Courts to protect State Citizens from Constitutional violations by state legislatures.
So the 10th Amendment doesn’t protect people from violations of state constitutions, if corporations can buy up majority interest in a state legislature.
It should be clear from these articles and from the Roberts Republican Court’s rulings that many things are no longer “Constitutional.” These include such things as Social Security, Medicare, OSHA regulations, almost all health and safety regulations. Perhaps the National Labor Relations Board and any laws that protect workers or give workers legal rights. And certainly the hated Obamacare.
Is this a “win” for corporate Republicans? It is surely a win for Republican voters, who went to the polls when Democratic voters did not. Democratic organizers decided that fundraising and other activities were more important than getting out the vote. So Republicans got control of the Senate, and seem poised to gain control of the House. Maybe one of these decades they’ll even figure out how to win a majority in a Presidential election.
But it is the Democratic voters, who populate the most oppressed castes, and who don’t vote in large percentages, who will reap the painful harvest of the Republican’s victory in creating the Roberts Republican Court.