Ninth Amendment (Part III)

Marshall would rely on his “expressly” argument to circumvent the Tenth Amendment in McCulloch v. Maryland (1819). In this case, Marshall held the federal government could create a national bank to carry out enumerated powers such as to lay and collect taxes. Marshall would use a broad interpretation of the necessary and proper clause in this opinion. Marshall contends that the federal government can use any implied power necessary to carry out enumerated powers. But, obviously, there were many more less intrusive ways to carry out laying and collecting taxes then creating a government monopoly. Where Marshall failed in his decision was to evaluate the “proper” part of the necessary and proper clause. Marshall, never asked the question if the bank was necessary, was it also proper? In other words, was creating the national bank the “correct” way to achieve the least evasive means (federal encroachment) to establish the end result (tax collection)? No, and proof of this is provided throughout this book in terms of how McCulloch is cited to grant the federal government expanded implied powers. This is perfect proof that consequentialism doctrines (do the ends justify the means) do not necessarily work at achieving the greater good. These doctrines are arbitrary and are impossible to measure. Madison was correct to say that once the federal government was provided ANY implied powers, then federal power would reach to every aspect of the lives of Americans. Marshall made a huge mistake. Sure, he was wrong to even consider that the federal government had the right to build a corporation, but more importantly, since his decision provided no limit on implied powers for the federal government, Marshall essentially armed Congress with a blank check to intrude on State and individual rights whenever they felt it appropriate. The concurrent powers doctrine of the Ninth and Tenth Amendment is interesting because it is the antithesis of modern jurisprudence introduced by the FDR Court. The doctrine holds that States maintain sovereignty over powers concurrently held by both the States and federal government via the Ninth and Tenth Amendments. For instance, the Federal government has the enumerated power to prosecute counterfeiters. However, in State v. Antonio, the South Carolina Supreme Court held that South Carolina had the right to prosecute a counterfeiter citing the Ninth and Tenth Amendments. Today, modern federal courts uphold many federal laws and statutes even though they are outside the realm of its enumerated powers. But in State v. Antonio, the South Carolina Supreme Court laid the groundwork to limit federal powers by reading Constitutional provisions narrowly to limit the expansion of enumerated powers. In another case, Houston v. Moore (1820), in his dissent, Justice Joseph Story held Pennsylvania could discipline militia members (through court-martial) even though Article I, Section 8, Clause 15 and 16 provide enumerated power over militias to the federal government. Story cited the Ninth Amendment to uphold the doctrine of concurrent powers. In New York v. Miln (1837), the Court upheld a New York law which said ships must furnish a passenger list to local authorities. In his majority concurrence, Justice Smith Thompson, cited Story’s opinion in Houston v. Moore upholding the law based on the concurrent powers doctrine. At this point, however, Justice Story changed his view about State power and the Ninth Amendment and dissented in the case. In Smith v. Turner (1849, passenger car cases), the Court held that States could not impose a passenger tax on ships travelling in interstate commerce. In his dissent, Justice Peter Daniel, cited the concurrent powers doctrine in Story’s Houston opinion. Even though Justice Story’s dissent in Houston was cited in many Court cases, most modern scholars overlook this Ninth Amendment claim. The reason for this is simple: Story changed his view. In his book “Commentaries on the Constitution” published in 1833, Story changed his opinion about federal power instead invoking those views held by Chief Justice Marshall. Justice Marshall never mentions the Ninth Amendment in any one of his opinions even when that was the main argument in the case. However, Story’s concurrent powers doctrine has never been questioned or overruled by the Court. The 1948 case, Bute v. Illinois, is often overlooked. In this case, Justice Harold Burton held that the concurrent powers doctrine of the Ninth and Tenth Amendments could be used to deny applying the Bill of Rights to the States. Most would agree that the Bute opinion should only hold weight if the State law is stricter (provided more individual rights) than the federal law otherwise the Bill of Rights should apply to the States. Many State and federal cases also used the concurrent powers doctrine. For instance, in Hawke v. Smith, the Ohio Supreme Court upheld the right of States to use referendums to approve proposed amendments to the Constitution instead of State legislatures as outlined by Article V. FDR’s National Industrial Recovery Act (NIRA) was rejected using the concurrent powers doctrine by federal judges in Amazon Petroleum Corporation v. Railroad Commission, Hart Coal Corporation v. Sparks and Acme Inc v. Besson. And the Iowa Supreme Court struck down provisions of FDR’s Agriculture Adjustment Act (AAA) in United States v. Neuendorf. In Henry Broderick v. Riley (1951), the Washington Supreme Court said that the Ninth and Tenth Amendments are being forgotten in legal jurisprudence to protect State rights from federal encroachment. The concurrent powers doctrine, the right to work, freedom of contact, and property rights took a big hit Tennessee Electric Power v. Tennessee Valley Authority (1938, TVA). In this case, the plaintiffs argued that the federal government’s TVA project to generate and sell electricity violated States rights because it would “result in federal regulation of the internal affairs of states, and will deprive the people of the states their guaranteed liberty to earn a livelihood and to acquire and use property subject only to state regulation.” Justice Owen Roberts held that individuals had no standing to file claims under the Ninth and Tenth Amendments – only States could make claims under these two Amendments. That is odd since both amendments claim to protect the rights “retained for the people” and “or to the people”. The TVA case erased the original intent the Founders held for the Ninth and Tenth Amendments. Madison’s amendment placement proposals also debunked several other flawed theories about the meaning or purpose of the Ninth Amendment. First is the collective rights theory which states the Ninth Amendment was adopted for the purpose of creating a Constitutional convention. If that were true, then Madison would have proposed placing the Amendment in Article V with other Constitutional convention and amendment guidelines. Second is the Ninth Amendment was created for the purpose of guaranteeing a republican form of government for the States. If that were true, then Madison would have proposed placing the Amendment in Article IV with the other guaranteed republican form of government statements. Still, other scholars theorized the Ninth Amendment’s purpose was to prevent the repeal of any States’ Bill of Rights that may be stricter than those proposed in the Constitution. If this was its purpose it is not working. The Court continually infringes on stricter State law interpretations of the Bill of Rights, especially during the Warren Court (more on this later).