CHAPTER
12

The Ninth Through Twelfth Amendments: The Political System

In This Chapter

• The Ninth Amendment: unenumerated rights
• The Tenth Amendment: states’ rights
• The Eleventh Amendment: suing states
• The Twelfth Amendment: electing a president

The last two amendments of the Bill of Rights—the Ninth and Tenth—were aimed at providing flexibility in the Constitution. The framers did not want future American leaders, legislators, or judges to say, “You don’t have the right to do that because it isn’t mentioned in the Constitution.”

Instead, the Ninth Amendment said that just because a particular right isn’t mentioned doesn’t mean it doesn’t apply or that the government can abridge that right. The Tenth Amendment said any authority not granted to the federal government in the Constitution is reserved to the people or the states.

The Eleventh Amendment protects states’ sovereignty by prohibiting them from being sued in federal court. And the Twelfth Amendment separated the campaigns for president and vice president while keeping the same qualifications for both offices.

The Ninth Amendment: Unenumerated Rights

“The enumeration in the Constitution, of certain rights, shall not be constructed to deny or disparage others retained by the people.”

Other parts of the Constitution, and especially the Bill of Rights, specify or “enumerate” particular rights, such as free speech and fair trial. But the framers of the Constitution did not think they had all the answers. In effect, this amendment says, “In case someone raises a right we didn’t list, it can still be valid. The government cannot take away a right from the people just because we didn’t mention it.”

The seeds of the amendment were planted in the Constitutional Convention, when anti-Federalists argued for a Bill of Rights to limit national government. The Federalists did not want a written Bill of Rights included in the Constitution for the same reason: to limit the power of the central government. They were afraid that if the Constitution included a written list of individual rights the government could not abridge, anything not on the list might be considered fair game for government limits or controls.

James Madison, leading the Federalist movement, put it this way: “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”

The anti-Federalists got their promise of a Bill of Rights, of course, in part as a compromise to gather support for the Constitution from the states during the ratification process. As part of the compromise, the Ninth Amendment was created.

Imagine a group of individuals has a big basket of rights. The Bill of Rights plucked out a few of those rights—free speech, fair trial, and so on—and held them up: these are shiny examples of the kinds of inherent, inalienable, individual rights the new government cannot limit. The Ninth Amendment says there are other rights in the basket, too, beyond the ones plucked out for the Bill of Rights. They are just as inalienable, and just as valid, even if they are not specifically mentioned anywhere in the Constitution, including the Bill of Rights.

The Ninth Amendment was an afterthought in the development of constitutional law for most of the United States’ first two centuries, but it has had some flurries of controversy in recent years. Today, some say it is meaningless, while others say it is crucial to democracy. Some say it grants many rights; others say it is merely a guide for how to read the Constitution. Some say it defends fundamental rights; others say it allows activist judges to reach any decision they want for social, political, or even personal reasons.

The Ninth Amendment stepped to the forefront in a 1965 case Griswold v. Connecticut, after the director of Planned Parenthood in Connecticut teamed up with a Yale medical professor to open a birth control clinic in New Haven. They were arrested, tried, and fined $100 under Connecticut’s 1879 law banning contraceptives. They appealed, the state courts rejected their appeal, and they took their case to the Supreme Court.

The Supreme Court overturned the convictions and declared the law unconstitutional, along with similar anticontraceptive laws in other states, on the grounds it violated the marital right to privacy. The majority opinion cited “zones of privacy” guaranteed by the Constitution, including the Ninth Amendment, while a concurring opinion by Justice Arthur Goldberg flatly said that because privacy was not covered elsewhere in the Constitution, it was an individual right protected by the Ninth Amendment.

We the People

Justice Goldberg’s often-quoted concurring opinion in Griswold v. Connecticut said in part: “To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.”

Birth Control and Abortion

Most of the subsequent Supreme Court decisions on privacy have confirmed there is a right to privacy but have shied away from finding it in the Ninth Amendment. In a 1972 case, Eisenstadt v. Baird, the Supreme Court ruled that unmarried couples could legally use contraceptives, too. In Roe v. Wade, the case that set the parameters for legal abortions in 1973, the Supreme Court rejected a lower court’s reasoning that said reproductive rights were part of the privacy protections of the Ninth Amendment. Instead, the Supreme Court said a woman’s right to abortion is protected by due process.

Here’s the specific court language on privacy from the majority opinion in the Roe case: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a women’s decision whether or not to terminate her pregnancy.”

Another case that looked at privacy, Planned Parenthood v. Casey in 1992, narrowly upheld Roe v. Wade but allowed Pennsylvania to impose restrictions, such as a 24-hour waiting period and parental consent for minors. Again, that case found the right to privacy in the Fourteenth Amendment rather than the Ninth.

Another significant privacy case in recent years includes Lawrence v. Texas. Police, acting on a call from a neighbor who reported a man with a gun, entered a home, found two men having anal sex, and arrested them for violating Texas’s antisodomy law. After being fined $200 each, they appealed. The Supreme Court overturned their conviction in 2003 and tossed out the Texas law along with the remaining handful of antisodomy laws in other states. Incidentally, the neighbor who had called the cops with the fake weapons report was arrested and spent 15 days in jail.

We the People

Arguing to uphold the Texas antisodomy law, Justice Antonin Scalia dissented: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best ….”

The privacy cases brought it onto the constitutional stage briefly, but the Ninth Amendment now seems to be back in the wings again, not playing a major part. Some constitutional scholars believe the Ninth Amendment may become a factor in the development of American law in the future, but perhaps only if and when the courts stop thinking about it in terms of preserving individual liberty instead of particular individual rights.

Just as the Ninth Amendment sought to preserve individual rights, the Tenth Amendment preserves states’ rights not specifically mentioned in the Constitution. Consequently, some describe this amendment as the essence of federalism: the national government has certain powers listed in the Constitution, and that’s it; everything else can and should be up to the states.

The Tenth Amendment, growing out of the original states’ unease about having another out-of-touch, faraway government replace British rule, was requested by the states to protect their own self-identity and self-rule at a time when it was much more meaningful to say you were a Virginian or a New Yorker than it was to say you were an American. Often called the “states’ rights” amendment, it is cited by those who believe that the federal government’s primary—and perhaps only—role is to defend the shores and deliver the mail.

We the People

Thomas Jefferson summed up the spirit of the Tenth Amendment this way: “The States should be left to do whatever they can do as well as the federal government.”

The Tenth Amendment was viewed as being very important when the nation was new, and it was seen as a brake on growing federal power—particularly taxing power and police power. But it has become less significant over time. Tension between the Tenth Amendment and the Constitution’s Commerce Clause generally has evolved in favor of the Commerce Clause, giving the government broad authority to oversee and regulate all manner of activity among citizens, whether across state lines or not.

In the first half of the twentieth century, there was still enough life left in the Tenth Amendment for the Supreme Court to strike down a range of congressional controls on the states, including the imposition of taxes on products from factories that relied on child labor, coal, poultry, grain futures, and other agricultural products. Other court rulings, however, upheld the federal government’s authority to regulate interstate transportation of lottery tickets and transporting women across state lines for immoral purposes.

The Tenth Amendment was the rationale for a 1918 Supreme Court decision that gave the states “nullification” authority over congressional legislation that violated state authority. But that decision was overturned in a 1941 case, United States v. Darby, which all but dumped the Tenth Amendment into the constitutional wastebasket. Justice Harlan Stone wrote:

“The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”

The Darby decision also made it clear that the Commerce Clause, giving the federal government broad authority over anything it defines as commerce, is the one that matters in modern law: “The power of Congress over interstate commerce is complete in itself, may be exercised to the utmost extent, and acknowledges no limitations other than are prescribed by the Constitution.”

The concept of “states’ rights” also fell into disfavor during the second half of the twentieth century when it became a rallying cry among foes of the civil rights movement in Southern states, who argued that the individual states should be allowed to require that African Americans sit in the back of the bus.

The concept of states’ rights had a brief revival in a 1976 case before the Supreme Court, National League of Cities v. Usery. The court ruled against the federal government’s attempts to set requirements for working hours and wages for certain local and state employees but did not specifically mention the Tenth Amendment. In any event, the ruling was overturned in a 1985 case, Garcia v. San Antonio Metropolitan Transit Authority, which said states retain their sovereignty only to the extent they have not given up their powers and transferred them to the federal government via the Constitution. Some interpret this ruling as saying that merely by being part of the United States, the individual states have ceded their authority to the federal government.

One line of reasoning in that case said any states’ rights challenge should be a political rather than a judicial issue. The rationale: the Tenth Amendment prohibits Congress from passing laws that are a burden on the states, but the people have given Congress the authority to make laws, so if a law is burdensome, it is up to the people to elect members of Congress who will change it.

In a 1992 case, New York v. United States, the Supreme Court threw out federal regulations that required the states to clean up low-level radioactive waste that failed to meet federal standards. The court said the U.S. government cannot force a state to administer federal regulations. Similarly, another Supreme Court opinion in 1997, Printz v. United States, threw out the Brady Handgun Violence Prevention Act’s requirements that state and local officials conduct background searches on people who are buying handguns.

In general, however, the federal government has become more and more dominant in our everyday lives, and the differences between being a Virginian and a New Yorker are not as meaningful as the similarities in being American. States are in theory still free to buck federal laws, but there is often a high price. For example, Congress in effect mandated lower speed limits for the entire nation and a national minimum drinking age of 21 by threatening to withhold highway funds for any state that did not fall in line.

The Tenth Amendment isn’t what it used to be, but it still could be a factor in future decisions balancing state and federal powers, particularly in terms of antiterrorist programs. For example, can the federal government require the states to enforce new federal immigration procedures?

The Eleventh Amendment: Suing States

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

This amendment, like the Tenth, reflected the independence and autonomy the original states enjoyed and wanted to preserve in the new union. In effect, it was aimed at giving them a measure of sovereign immunity, a phrase that dates to the English principle that the king had to agree to any lawsuit filed against him. If he didn’t agree, there could be no lawsuit. The Eleventh Amendment was aimed at providing a similar insulation from lawsuits for the individual states.

The amendment was proposed, approved by Congress, and ratified by the states in quick sequence as a result of a 1793 Supreme Court case. In that case, Chisholm v. Georgia, two residents of South Carolina said they were owed money by the State of Georgia under a contract for supplies during the Revolutionary War. Georgia said it could not be sued by residents of another state, but the Supreme Court disagreed.

Georgia’s leaders were angry, and the state legislature passed a law saying anyone who came to Georgia to collect the debt could be hanged. The leaders of other states were afraid the same thing could happen to them, that they could be sued by residents of other states and the federal courts would end up deciding the cases.

The Eleventh Amendment was passed to overcome the court decision and bar lawsuits against states by nonresidents. In an 1890 case, Hans v. Louisiana, the Supreme Court launched a series of decisions holding that not only are nonresident citizens barred from suing states, but also, resident citizens are barred from suing their own states in federal court.

The Eleventh Amendment is generally viewed as barring cases brought in law, seeking monetary damages, but case law has established that the federal courts can take cases against the states in equity, seeking nonmonetary relief or “performance” such as injunctions ordering someone to do something or not to do something. The courts have done some legal tap dancing here. For example, there is the line of reasoning that says suing a state official is not the same as suing the state because if a state official is violating the law, he or she is not acting on behalf of the state.

DEFINITION

The Eleventh Amendment bars suits against states in law or in equity. In legal language, a suit in law is one that seeks monetary damages. In contrast, a suit in equity seeks a court order, such as injunction, that orders a specific action to be taken or sometimes bars a specific action from being taken.

Cases in recent years have yielded mixed results. One said there can be Fourteenth Amendment grounds for limiting state sovereign immunity, and another said Article I’s Bankruptcy Clause can, too. But other recent cases have bolstered states’ immunity, including one that said states do not have to respond to private complaints filed with federal agencies.

The Twelfth Amendment: Picking the President

“The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

“The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as the President, as in the case of the death or other constitutional disability of the President.

“The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

The Twelfth Amendment was drafted to replace the part of Article II (Clause 3 of Section 1) that laid out the process for selecting the president and vice president. Originally, that clause called for members of the Electoral College to vote for their top two choices for president. The majority winner would be president and the second-place finisher would be vice president. In the election of 1796, this resulted in a president from one party and a vice president from another, but it was the following election, in 1800, that led to amending Article II.

A majority of the Electoral College expected to elect Thomas Jefferson as president and Aaron Burr as vice president in 1800. A deal was worked out: all the Jefferson–Burr supporters would vote for both men, but one elector would leave Burr off the ballot so he would finish second. The plan went awry, however, and Jefferson and Burr ended up with the same number of votes. That threw the election to the House of Representatives, where each state had one vote. The House was deadlocked for a week before Jefferson finally was declared president, in large part thanks to Alexander Hamilton’s tireless campaigning against Burr.

We the People

Aaron Burr was furious at the scurrilous things Alexander Hamilton said about him in 1800 when Burr wanted to be president and again in 1804 when Burr lost a campaign for governor of New York. After the 1804 loss, Burr challenged Hamilton to a duel. Hamilton fired first and missed. Burr’s shot hit Hamilton in the abdomen, and he died the next day.

The Twelfth Amendment changed the Electoral College procedure so that instead of submitting one ballot with two names, electors now each submit two ballots, one for president and one for vice president. The candidate with a majority of the vote is elected.

If no candidate for president gets a majority in the Electoral College, the election is thrown to the House. The House then votes by state among the top three vote-getters. If no candidate for vice president gets a majority, the Senate votes by state from the top two vote-getters. If the House cannot declare a winner of the presidential race by inauguration day—March 4 when the Twelfth Amendment was ratified, or January 20 now—the newly elected vice president serves as acting president until the election is resolved.

The Twelfth Amendment also requires the vice president to have the same qualifications as the president: 35 years old, natural-born citizen, and a resident of the United States for at least 14 years.

The Twelfth Amendment does not prohibit a president and a vice president from being elected from the same state, but voters in the Electoral College cannot vote for two candidates from their own states. In other words, an elector from Ohio can vote for either a presidential candidate or a vice presidential candidate from Ohio—but only one of them, not both.

In 2000, Republican nominee George W. Bush, then the governor of Texas, chose Dick Cheney, then a Texas businessman, as his running mate. Cheney changed his residence to Wyoming, where he grew up and was elected to Congress, to ensure Texas electors would be able to vote for both him and Bush.

We the People

In the 1824 presidential race, Andrew Jackson had 99 of the 131 Electoral College votes needed for a majority. John Quincy Adams had 84 votes, and two other candidates combined for 78 votes. Jackson expected to be elected by the House, but Adams got the support of 13 of the 23 states and became president.