Amendment 9 and Today's Constitution

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. - Amendment 9 of the U.S. Constitution

 In these modern days of Constitutionalism, a terrifying yet prominent ideology of a "living constitution" has been taking academia by storm. Though this ideology predates modern Constitutionalism, it has certainly been brought to the helm of the debate concerning the "proper" interpretation of the U.S. Constitution. However, this idea is simply not what our Founders would argue for. In Federalist no. 84, written by Alexander Hamilton, there is a case made against assuming powers that are not granted in the Constitution:

"For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? - Alexander Hamilton, Federalist no. 84

This rationale from our Founders, in the late 1700s, is antithetical to the "living organism" argument advanced by such academics as President Woodrow Wilson in the early 1900s and modern liberal news organizations and academics today. The main argument from the Founders is as follows: If the Constitution does not state it, then how can it be enforced? This reasoning came from the Founders arguing that a document can only allow or disallow precisely what it states it can. As President Hamilton stated it, "why declare that things shall not be done which there is no power to do?" A statement such as this necessarily connotes that there must be preexisting meaning in a document for certain things to be permanently allowed or disallowed by that document. Why the reason for such a prominence on the exactness of the constitution's contents? The reasoning was to preserve liberty and freedom. This is clearly explained in President (at that time Founder) James Madison's Federalist no. 51:

"In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty..." - President James Madison, Federalist no. 51

From here, it is clear that everything the Founders sought to accomplish through the Constitution was molded by their utmost respect and insatiable desire for liberty. What, then, does this mean? Why did our Founders care so much for liberty that they wrote documents vehemently explaining the purpose of the writing in the Constitution? It is because they believed that having a clear interpretation of the Constitution casts doubt on the words contained in it meaning anything other than they express. It is for this reason that Supreme Court Justices such as Justice Antonin Scalia vehemently defend that the constitution has a set meaning which is not open for interpretation or alteration.

Now, one may then be led to ask: "So what? Why does it matter whether the constitution is living or dead? Isn't the purpose of the Constitution to regulate the government?" One would be right to ask such a question, as this is the primal issue with all governing documents. Why does it matter whether the document is living or dead if its purpose is to regulate? The answer is that the difference between a living document and a fixed one is the difference between temporary rights and permanent rights.

If a document is living, then how can permanent, inalienable rights be secured through that document? For instance, if the Constitution today states that freedom of speech means all forms of expression, then, today, those rights could be upheld. However, if the constitution is understood to be a living document, then freedom of speech can be reframed to mean only the utterances of the mouth and not any other forms of expression. This can lead to censorship of books, regulation of clothing, revisions of dictionaries, etc., and this is only if the word "speech" were reinterpreted. If freedom were reinterpreted to mean those rights which the government dispenses, then the clause "freedom of speech" could mean freedom to speak only in a way which the government allows. Under a living Constitution, a change in the meaning of two words can greatly alter which rights are protected and removed from it.

Therefore, it is argued that a living document does not guarantee any rights to its citizens. Further, a living document cannot guarantee any limits on the scope or function of its government. If the interpretation is constantly changing, then what is stopping the interpretation of "unreasonable search and seizure" to mean seizure without a reason? Surely the government will always claim it has a reason to seize something, whether that reason be necessary or delusional. This exemplifies the problem with the idea of a living document.

So how does this lead to Amendment 9? Amendment 9 was added as part of the Bill of Rights to ensure that the US Government would be unable to remove rights given under the Constitution through changing the words. To explain this more plainly: the Constitution makes it illegal to change the meaning of it to remove rights. Why was this amendment added to the Constitution? We have the Antifederalists to thank. The Antifederalists foresaw that the government would willingly attempt to overstep and violate the constitution, something that the Federalists claimed would be impossible. To prevent this, the Antifederalists convinced the population of United States to include a list of 10 Amendments that laid out fundamental rights to all the U.S. citizens, regardless of future laws made. Save repeal of these Amendments, the rights enumerated in those 10 Amendments would be forever cemented in American Law through being an express part of the Constitution. Having unalienable rights through a document that contains only one interpretation and meaning makes such protections as a Bill of Rights possible. It is when a document becomes living that rights become temporary and freedoms disappear.