By Richard Girard
"The words of the Constitution . . . are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life."
Felix Frankfurter (1882-1965), U.S. Associate Justice of the Supreme Court. "The Supreme Court." Quoted in: Parliamentary Affairs, volume 3, no. 1 (London; winter 1949).
"It is my belief that there are "absolutes" in our Bill of Rights, and that they were put there on purpose by men who knew what words meant, and meant their prohibitions to be 'absolute'."
Hugo Black (1886-1971), U.S. Associate Justice of the Supreme Court. Hugo Black: A Biography by Roger K. Newman, Pantheon (1994), limiting the power of the courts and Congress to reinterpret the Constitution.
"The American Constitution, one of the few modern political documents drawn up by men who were forced by the sternest circumstances to think out what they really had to face, instead of chopping logic in a university classroom."
George Bernard Shaw (18561950), Anglo-Irish playwright, critic. Getting Married, Preface (1908).
Once or twice a year, I like to turn my thoughts to a more scholarly, more intricately researched article, than what I write normally. This article, discussing the United States Constitution, and the implications of its Articles, Amendments, and interpretation, upon which even the experts disagree, tend to provide contradictory opinions not only to one another, but also to what you might expect given the background and history of the individuals involved.
Take Justices Frankfurter and Black above, who served on the Supreme Court in roughly the same time period: Frankfurter from 1939-65, Black from 1937-71. Reading the above quotes, one would think that Justice Frankfurter would be considered the liberal on the court, and Justice Black the conservative.
Yet the history of the Supreme Court shows that Justice Frankfurter was considered the far more conservative of the two justices, while Justice Black was the driving force behind civil rights for African-Americans, and the application--through the Due Process and Equal Protection clauses of the Fourteenth Amendment--of rights for the accused under the Fourth, Fifth, Sixth, Seventh and Eighth Amendments to the individual states, in the same manner they are applied to the Federal government. Before Justice Black's time on the court, the rights of the accused under state law were determined almost solely by the constitution of that individual state, a system that had been undisturbed since Reconstruction.
When we examine the Tenth Amendment, we must first examine the Ninth, for they are twin horses drawing the the People and the States in the chariot of the Constitution.
The Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Tenth Amendment states, "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 Ninth Amendment is quite clear: because some individual rights are listed in the Constitution and its Amendments, it does not mean that those rights that are not listed are not retained or are otherwise denied to the People as a whole or as individuals.
The Tenth Amendment is also quite clear: the powers not delegated to the United States by the Constitution, as well as those not specifically denied it and given to the States; are reserved to the States, or to the people.