The Monday Morning Poll

Monday, March 16th, 2009

Show your work in the comments section.

My answer, by the way, is the Ninth and the Fourteenth. It’s the only proper interpretation of what a Constitution does: It delegates certain powers to the government that first belonged to the people. The people retain the full range of rights and freedoms save for those necessary to allow the government to function with the boundaries set forth by the Constitution.

As for the Tenth, I’m all for federalism, but a state or local government shouldn’t be permitted to violate the fundamental rights of its citizens.

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35 Responses to “The Monday Morning Poll”

  1. #1 |  Ben | 

    Needs to be an option for 9th and 10th together.

  2. #2 |  Andy Craig | 

    I have to say 9th & 14th, because the courts would have to come up with some way to decide what is or isn’t a right under the 9th Amendment. Combined with the 14th, that would be the best opportunity to sneak something approximating libertarian theories of self-ownership and deference to natural autonomy into American constitutional law, and have them applied at all levels of government. The 10th would be great, too, but at the end of the day it’s only a limitation on the Federal government.

  3. #3 |  Andrew | 

    I almost answered 9th alone, but went with 9th and 14th.

    The 9th is arguably the most important — it tells us that the Constitution isn’t what grants us our freedoms, but rather what limits the government’s right to deny us certain freedoms.

    The 14th tells the states that, like the federal government, they’re limited in what freedoms of ours they can take away.

  4. #4 |  Chance | 

    None of the above. No two groups will have the same interpretation, and interpretations change with who ever is in power anyway, making the argument moot.

  5. #5 |  ClubMedSux | 

    Two thoughts…

    First, I think you’re skewing your results by sharing your answer up front (not that it’s a scientific poll or anything, but just sayin’).

    Second, was the 4th Amendment excluded as a choice because it’s too obvious?

  6. #6 |  Boyd Durkin | 

    The argument is not moot. It is exactly, I presume, why Radley stated “if interpreted properly” and requested a proof (knowing Humpty Dumpty words rule the day and words now mean whatever you say they mean when you are king).

    Ninth. But I would like it rewritten thusly “…rights not specifically mentioned are retained by the people, fucker.”

    The Ninth is consistent with the fact that we are all humans first, and Americans as a much lower classification. The state is NOT “born” with limitless powers that are culled, but it is “born” with NO powers and must be granted them by the people.

  7. #7 |  Gabriel | 

    The 14th also says that the validity of the public debt of the United States shall not be questioned. Sorry, can’t vote for that one.

    If the tenth were enforced properly, it would make the 9th unnecessary: since the federal government can’t exceed its explicitly delegated powers it can’t violate the rights which the ninth implies.

    I agree with the idea that we don’t want the states violating our rights either. However, the 14th can’t guarantee that. Our odds are better with a federalist system than with any centrally enforced policy. If the central government makes an anti-liberty choice- and governments inevitably do make bad choices no matter how hard we try to stop them- then that policy is enforced nationwide. If a state makes an anti-liberty choice, you can at least move to a different state, or argue for change by pointing out how much better things are in that other state.

  8. #8 |  Francis | 

    hey, how ’bout the 5th? (due process clause, etc.)

  9. #9 |  matt | 

    I would have to say the 2nd Amendment.

    The right to bear arms is our safety net to ensure the other rights are not eroded.

  10. #10 |  fmb | 

    Lets see maybe this will help. The COURTS do not have the authority to interpret the Constitution. The courts are subordinate to the Constitution as a creation of that document. In fundamental law theory, the subordinate cannot define or determine the breadth and depth of the superior. The Constitution is the superior of the courts and the SOLE superior to the Constitution are We the People.

    So long as one accepts the court “interpreting” the Constitution in one manner then one cannot whine when the courts interpret it in a manner one dislikes. It’s always ok when it’s someone else’s ox that gets gored but really pisses one off when it’s one’s ox being gored.

    The best answer is that the courts can truly serve liberty by not interpreting things at all and leaving the determination of the meaning to We the People, the creators of the Constitution.

    The 14th is NOT about Rights. Confusing privileges and immunities with Rights is an outgrowth of the corrupted education system in place in the US. Rights are inalienable and belong to every human by virtue of birth, “endowed by their Creator” while privileges and immunities are grants from government. The entire incorporation doctrine is a lie perpetrated on the People because of the BS decision in Barron v Baltimore. Under Incorporation the Courts leave holes in our Rights that allow for abuses to continue.

    Any government powerful enough to give you everything you want is powerful enough to take away everything you have.

    Rights cannot be granted by the government nor can rights be granted by We the People. Rights can only be recognized as they are in the BoR (US v Cruikschank, I believe). And there is no order to the importance of the Rights in the BoR. If this were true then pay for the Congresscritters and congressional districting were considered more important than Rights since the First and Second Amendments were about these topics.

    Dominus providebit!

  11. #11 |  Dave Krueger | 

    fmb, wouldn’t that essentially put the Supreme Court out of business? Wouldn’t all Constitutional cases then have to be jury trials?

    Also, an argument could be made that U.S. citizens do control how the Constitution is interpreted by virtue of their power to elect those who represent them.

    Not really disagreeing with what you say, though. I’ve always thought it was strange how people in the U.S. would clamor about how they brainwash children under communism and never give our own government controlled education system a second thought.

  12. #12 |  Mattocracy | 

    I would say that the entire Bill of Rights is necessary to promote Liberty. I can’t really put one amendment above another or prioritize my rights based on importance. They are all important and creating a hierarchy only serves to undermine the rights that aren’t listed as number one.

  13. #13 |  Andy Craig | 

    ***The 14th is NOT about Rights. Confusing privileges and immunities with Rights is an outgrowth of the corrupted education system in place in the US. Rights are inalienable and belong to every human by virtue of birth, “endowed by their Creator” while privileges and immunities are grants from government***

    This isn’t true at all. “privileges and immunities” is a legal term of art intended to describe two very specific kinds of rights the states couldn’t violate- “privileges” being procedural rights such as jury trials and “immunities” being the fundamental rights of autonomy, to engage in certain activities “immune” from government interference.

  14. #14 |  Charles | 

    Looking historically, the 14th — had the states denying full rights to black citizens been themselves denied representation, I think we would have had a much smoother transition toward protecting civil rights. The southern states would have had an early, strong incentive to grant the vote to blacks. Most importantly, I think, we would have avoided the biggest problem: treating disenfranchisement as normal for decades. Many of the current problems we have are the result of federal action against worse abuses by the individual states, so solving those abuses (in itself a worthy goal) has a double benefit.

  15. #15 |  Lior | 

    Sorry, but I cannot agree. Incorporating the 9th Amendment against the states via the 14th Amendment is not a way to “promote liberty” — it’s a way to turn the system on its head. It basically means the end to all state constitutions.

    Yes, allowing the states to make their own decisions might lead them to violate your unenumerated rights, but the situation is different today than before the civil rights era of the 60s. Today, the main threat to liberty from the states is that they fail to follow their own laws in constitutional ways, and also that they continue to support constitutional unaccountability doctrines such as sovereign immunity and qualified immunity. These problems cannot be fixed the way you want it to be — by having the a particular Supreme Court panel force all states to recognize whatever unenumerated right it likes that day.

  16. #16 |  Christopher Monnier | 

    I think the First Amendment is the ultimate liberty-preserving amendment (as practically interpreted, at least). As long as there’s freedom of speech/thought, everything else is possible. It’s like the last line of defense against tyranny.

    That said, I wish the 9th and 2nd Amendments were swapped. It’s at least the second-most important of the original ten, but somehow it wound up buried at #9. In fact, maybe the 9th should have been the 1st, as it would have maybe been interpreted as having laid down all the ground rules for the subsequent amendments. Slots #6-9 are the easiest to ignore in a list of 10.

    In any case, I voted for 9th and 14th.

  17. #17 |  ShelbyC | 

    Uh, anybody that doesn’t choose the 13th needs their head examined :->

  18. #18 |  pegr | 

    Matt got it right. The 2nd is the most important to ensure liberty.

  19. #19 |  Mattocracy | 

    I don’t believe that the 2nd Amendment preserves liberty in anyway anymore. I love my guns as much as the next guy, but just try using your second amenedment right to stop an agent of the state from taking your 1st, 3rd, 4th, etc, rights and see what happens. You will not maintain or gain freedom. If there was ever a day when your right to bear arms would preserve your liberty and protect you from government, it has long since passed.

  20. #20 |  C L | 

    Nobody mentioned the 3rd amendment?

    Imagine if you had to house military personnel in peacetime?

  21. #21 |  Rick Caldwell | 

    None of the above. If interpreted correctly, the 9th, 4th, 1st and 2nd together would do the trick.

    In fact, I’ve often said that if I could rewrite the constitution on a blank sheet of paper, the first four articles would be the text of those four amendments in the order listed. I would rewrite the right to keep and bear arms to be much less ambiguous sounding, though. And article 5 would set forth criminal penalties for government agents who violate the first four.

    The tenth amendment is good, but only in the context of the greater evil of federal leviathan vs. the little leviathans on the state and local levels. Given the choice between cancers, sure I prefer the one that’s less painful, and more easily treated. But it’s still cancer.

    The 14th amendment is also good, but again only in context. It tells the government that the rights afforded citizens can’t be denied based on arbitrary reasons like skin color and such. But it’s too focused on the privileges coming from government. Rights don’t come from government in the first place. If the 9th is read correctly, you never need the 14th.

    You don’t get liberty unless the focus is on the primacy of individual rights.

  22. #22 |  Coises | 

    “Which amendment to the Constitution, if interpreted properly, would most promote liberty?”

    Though I am not a Christian, this reminds me of the question posed to Jesus, “Which is the greatest commandment?” He is said to have answered with two statements, neither of which is to be found among the Ten Commandments themselves: “‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.’ This is the greatest and first commandment. And a second is like it: ‘You shall love your neighbour as yourself.’ On these two commandments hang all the law and the prophets.” (Matthew 22:34-40, NRSV) He knew focusing on the rules to be a divisive and destructive practice, unless one first takes to heart the motivating spirit behind those rules.

    Though the Constitution of the United States is “the supreme Law of the Land,” there is a far simpler and more fundamental passage in the most famous of our founding documents upon which everything in the Constitution rests:

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

    Were our government and our people, including our courts and juries, to take this as a serious statement of intent — and not merely a historical justification for revolting against the previous government — greater liberty would follow more surely than from any law or amendment.

  23. #23 |  Cynical in CA | 

    The amendment that abolished the Constitution and all other forms of forceful government.

    I don’t see that on your list.

    I’m taking my ball and going home now.

  24. #24 |  andy | 

    Given the answers, I agree with the 9th and 14th together, but others are just as important, if not more important. Courts are generally unwilling to give any real meaning to the ninth amendment; they usually just use it to show that the framers allowed for new liberties to be created, and then go onto use other amendments to deal with the liberty at hand. With that, I’d have to go with a Griswold-like line-of-reasoning, even though that decision represents judicial discretion at its finest. The First Amendment sets up the basics for liberties: you can say, think, write whatever you want (as long as its not obscene!) and gives us freedom to practice religion and not have the government tell us what to do with religion. The Fourth is crucial to liberty because it *should* keep the government out of your home. The Fifth is crucial because it protects you against an overzealous criminal justice system that will go to great lengths to put you behind bars.

  25. #25 |  ShelbyC | 

    “they usually just use it to show that the framers allowed for new liberties to be created, and then go onto use other amendments to deal with the liberty at hand.”

    They don’t use it to show that new liberties can be created, they use the to show that the bill of rights wasn’t an exaustive list of then-existing liberties

  26. #26 |  Nick T | 

    I vote for 14th.

    “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    If you interpret the words “liberty” and “property” as expansively as possible, AND interpret Due Process as onerously for the government as possible, you would have a amazingly free society. (Of course, this clause applies to the state, but the 5th Amendment applies similarly to the Fed.)

    For example, liberty/property shold include the right to, say, have live enertainment at your bar without a “permit” from your local government, or to eat as much frickin’ salt on our meal as you want. Imagine a constitutional right to such things. Hot to death!

  27. #27 |  vinnie | 

    Sorry but it IS the second and the first. If police EXPECT an armed response from subjects AND neighbors they will find better methods of arrest (like finding out when they can pick up suspects peaceably, instead of armed entry. Think Cory May and Ryan Fredricks.)

    The Sword of Damocles hangs heavy

  28. #28 |  GU | 

    9th & 14th: see Randy Barnett’s “Restoring the Lost Constitution” for an excellent exploration of the topic.

    Federalism really is important for liberty though; the ability to “vote with your feet” and move to a state that better respects individual freedom (horizontal competition between the states) could really promote liberty.

    However, we won’t have meaningful federalism until:

    1. The 17th Amendment is repealed.
    2. The Tenth Amendment is interpreted as preventing more than “commandeering”
    3. A national government of enumerated powers, as required by Art. I § 8 is taken seriously.

  29. #29 |  Louisa | 

    “The people retain the full range of rights and freedoms save for those necessary to allow the government to function with the boundaries set forth by the Constitution.”

    What rights and freedoms must we give up so that the State may better function (rule over us)? I’ve never heard of nor seen such a list.

  30. #30 |  KBCraig | 

    While I voted for 9th & 14th together, I wanted to vote for a repeal of the 17th.

    Direct election of senators destroyed the entire reasoning behind a bicameral legislature: that the senate represent the states, not the voters.

    Now, instead of a House and Senate arguing to serve their constituents, we have both bodies pandering to the average Joe on the street.

  31. #31 |  Brad | 

    Of the options permitted, the tenth amendment is the logical choice. Of the 9th, 10th, and 14th only the 10th is currently nullified.

    And the tenth amendment is more than just ‘federalism’, it is the crucial statement of delegated powers. The fantastic reach of the Federal government would be a fraction of itself today were the 10th amendment enforced.

  32. #32 |  CTD | 

    Radley, Matt’s right. You missed the most important one of all.


  33. #33 |  supercat | 

    Courts are generally unwilling to give any real meaning to the ninth amendment; they usually just use it to show that the framers allowed for new liberties to be created, and then go onto use other amendments to deal with the liberty at hand.

    I’ve seen nothing to suggest that the Ninth Amendment was ever intended to allow courts to “create” liberties, nor to allow the government the power to “protect” the liberties thus created. To allow the government unchecked power to invent and “protect” so-called “liberties” would be to allow it unchecked power, period. If one wants to ban some form of activity, one need merely recognize others’ “right” not be have such activity practiced anywhere near them. Voila–the government can ban practically anything by inventing a “right”, even if it wouldn’t have any other legitimate basis for such a ban.

    I find it hard to regard the Ninth and Fourteenth Amendments as providing much protection for people’s real rights, given that they are routinely ignored in the cases where they should be applied. Of course, if the government taught people to honor the Supremacy Clause, and recognize that government agents who violate the Constitution are not acting in the line of duty, and have no legitimate authority, then such amendments might mean something, but without that they’re just decoration.

  34. #34 |  supercat | 

    //Nobody mentioned the 3rd amendment?//

    Given that the troops would be quartered in a home not only to save the cost of housing them, but also to have them spy on the other occupants, I think a lot of wiretap provisions are designed to undermine the intention of the Third Amendment.

  35. #35 |  supercat | 

    //I love my guns as much as the next guy, but just try using your second amenedment right to stop an agent of the state from taking your 1st, 3rd, 4th, etc, rights and see what happens.//

    If you think government abuse of illegitimate no-knock raid tactics is bad today, imagine if the robbers didn’t have to fear being shot.