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Jared Davis – The Ninth and Tenth Amendments

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The Ninth Amendment, written and framed by James Madison, is one of the most debated and ambiguous amendments to the Constitution. It states that certain rights in the Constitution do not mean that other rights do not exist. The main point of conflict revolves around identifying these additional rights. One shared interpretation is that these rights refer to the natural rights inherent from birth, as the Constitution only specifies some rights in great detail. This interpretation aligns with the context in which the amendment was crafted. During the debates between antifederalists and federalists on including a bill of rights, James Madison argued that listing specific rights would leave the government to argue that only the enumerated rights are protected. Therefore, the Ninth Amendment seeks to balance and protect both enumerated and retained rights, subject to interpretation. While the amendment has not been frequently used in cases, it has found use in both Roe v. Wade and Griswold v. Connecticut (1965). In these cases, the court used the ninth to recognize privacy rights not explicitly mentioned in the Constitution but considered pre-existing rights deserving protection. These examples help reinforce the amendment’s significance in countering the criticism of vague language, although the lack of explicit mention of these rights leaves room for further interpretation. The Ninth Amendment remains the most complex amendment within the Constitution, prompting us to question what new rights today may exist that should have been included in the original document.

 

The Tenth Amendment of the United States Constitution is historically and interpretively significant. It addresses concerns over individual rights, state sovereignty, and the balance of power between the federal and state governments. Its inclusion aimed to prevent an excessive concentration of power in the federal government and respond to the demands of the states and their citizens. Commonly understood, the Tenth Amendment guarantees states’ rights and authority, ensuring a balanced power distribution between the federal government and the states. However, interpretations have diverged over time. Some argue it grants states broad powers to resist federal encroachment, while others believe it has limitations and does not grant absolute state sovereignty. The Supreme Court case of New York v. United States (1992) illustrates the debate over the Tenth Amendment. The ruling favored New York, reaffirming state sovereignty and reviving the amendment’s significance. It emphasized the amendment’s role in maintaining a balanced power distribution and protecting states from excessive federal intrusion. The Tenth Amendment connects to federalism, balancing individual rights, government authority, and shared power. Its preservation of state sovereignty and protection of rights make it significant. The interpretation that grants states broad powers is more persuasive. It aligns with federalism and the amendment’s intent, preserving state autonomy and authority. Given its historical context and ongoing relevance, I would not advocate amending the Tenth Amendment. It safeguards state sovereignty and individual rights, and altering it could disrupt the balance of power between the federal government and the states, undermining the principles of federalism.

The Declare War Clause

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When the Constitution was originally written in 1787, the Antifederalists became fearful that the new Constitution would give too much power purely to the President, so the new government would resemble a monarchy more than the democratic system promised. The Antifederalists opposed the US Constitution because they believed that it did not balance powers. The Declare War Clause addressed the power the President had when addressing declarations of war against other nations.

The Declare War Clause was initially written with the purpose of limiting the President’s use of the USA’s military forces without Congress’s clear approval. The clause was a preventative clause to insure the President couldn’t abuse their powers. The approval of Congress was thought necessary for both formal declarations of war and for smaller uses of force in 1787. Modern Presidents have used military forces without formal consent from Congress. In 1950, President Truman ordered for US forces to enter Korea without approval from Congress. Constitutional scholars argued that, regardless of the original intention of the clause, there is now a modernized practice that allows the President considerable power to use military forces. Some constitutional scholars believe that Presidents have full authority when responding to an attack on the USA, while others think that the President controls offensive and defensive attacks. 

Generally, a majority agree that presidential actions pursuant to Congressional authorizations are constitutional, although there is debate regarding how broadly any particular authorization goes. Presidents have claimed authorization from informal congressional actions such as Congress’s failure to object to ongoing hostilities. This has caused controversy surrounding the clause and how effective or respected it is.

Some Presidents have decided independently on approving military action, while others stayed true to the Declare War Clause. Many scholars believe that no matter what the original purpose of this clause was, it has transformed into a more modern understanding that allows the President more independent power. Scholars believe that Presidents are allowed to initiate the use of military force without formally declaring war, but that Congress’s exclusive power is issuing the proclamation of war. In the 1863 “Prize Cases”, the Supreme Court stated that as a defensive measure, President Lincoln’s blockade following an attack was ambiguous regarding whether the authority for said blockade came from specific statutes of Congress. Court noted that the President couldn’t begin hostilities without Congress’s approval. Now courts avoid deciding cases based on limits on what types of disputes courts can resolve, including political questions. As a result, the precise implications of the Declare War Clause remain unanswered. Leaving room for debates and disputes. The “Prize Cases” show that the basics of this clause remained upheld because it was decided that the President couldn’t begin a war or use military sources without Congress’s approval.

In history, we have learned about the causes of revolutions in France and America, and the main cause for both revolutions was fear of a monarchy and the concentrated power that comes with a monarchy. The Declare War Clause guards a piece of power against being a single man’s decision and therefore aids in protecting the USA against a monarchy.