On Secession and the Ninth
Amendment
In his letter “Retained is Key Constitutional Word,”
Dan Coli cites the Ninth Amendment as the source of rights “retained” by the
states and implies that one of these “rights” is the power of individual
states to secede from the
Union
. He asserts, “The amendment
undeniably guaranteed the retained rights of the states.”
However, he correctly quotes the amendment as stating, “The enumeration
in the Constitution of certain rights shall not be construed to deny or
disparage others retained by the PEOPLE.”
It seems to me the key word is people not retained.
The states and the people are not synonymous.
In fact many of the arguments about federalism revolve around whether the
Constitution is a compact of the states or of all the people of the
United States
. The Ninth Amendment was included
to allay the fears of some Federalists who believed that the listing of specific
rights might be seen as a complete list and that those rights not found on the
list might be seen as nonexistent. The
Ninth Amendment, like the eight preceding it deals with the protection of
individual rights not the powers of the states.
In fact, with the ratification of the Fourteenth Amendment in 1868 and
the subsequent doctrine of incorporation, the first nine amendments have had the
effect of limiting state powers. The
courts have used the Ninth Amendment most famously in privacy cases such as Roe v Wade to cite penumbras of rights not specifically mentioned in
the Constitution, such as the right to an abortion.
The amendment that does deal with powers “reserved” for
the states in our federal system is the Tenth Amendment which reads, “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.” This
has been the source of countless arguments over the balance between State and
National power in our system, not the least of which being the power to secede
which culminated in the Civil War. Might
I remind Mr. Coli that the side fighting against secession won that war which
presumably settled the issue? However,
not being one who believes that might makes right, let’s look at the Tenth
Amendment and other relevant parts of the Constitution.
According to the amendment the reserved powers of the states are those
which are not delegated to the national government nor denied to the states in
the Constitution. The powers of
Congress, the President and the federal court system are too numerous to list
here, but the total power of the national government in relation to the states
is addressed in Article VI. “This
Constitution, and the laws of the United States which shall be made in pursuance
thereof; and all treaties made, or which shall be made, under the authority of
the United States, shall be the supreme law of the land; and the judges in every
state shall be bound thereby, any thing in the Constitution or laws of any state
to the contrary notwithstanding.” (This
should be required reading for former Judge Roy Moore of
Alabama
, but that’s another letter!) Regarding
powers denied to the states, there are many of these as well, mostly found in
Article I Section 10. Some of them
include prohibitions against states entering into treaties, alliances,
confederations, agreements or compacts with other states or foreign powers.
States are also generally prohibited from exercising various powers
associated with war, the coinage of money, and the laying of duties on imports.
The eleven states that seceded in 1861 did so in rebellion against the
United States
and in violation of the Constitution. President
Lincoln, fulfilling his oath of office, correctly put down this rebellion, just
as I presume President Bush would if
Vermont
or any other state tried to secede from the
Union
today. Long Live the
United States
and its Constitution!
