The Ninth and the Tenth Amendments are related and are two of the least known today and, sad to say, are more often honored in the breach than in the observance.
The Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Tenth is cut from the same cloth: “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.”
A bit of legislative history can explain these amendments. It seems that one reason why a Bill of Rights was not included in the original Constitution was because the Founders honestly feared that a listing of those things that Congress may not do (which effectively is what the Bill of Rights does) would be necessarily incomplete, and perhaps those of a certain mind would contend that anything that was not listed was somehow fair game for legislation or would be an excuse to extend the power of the federal government. James Wilson, a signer of both the Declaration of Independence and the Constitution, and who later served on the US Supreme Court, said, “If we attempt an enumeration, everything that is not enumerated is presumed to be given. . . . an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.” Alexander Hamilton wrote, “a Bill of Rights would contain various exceptions to powers which are not granted” which would “afford a . . . pretext to claim more than were granted.” James Madison acknowledged “by enumerating certain exceptions to the grant of power it would disparage those rights which are not placed in that enumeration, and it might follow. . . that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”
Like the First and Second Amendments, the Ninth is not a favorite with the current crop of progressives, and although traditionalists and those who believe in “original intent” would insist on the Ninth Amendment today, the progressives would not; and, in practice, the Ninth may well be a dead letter anyway, as government has expanded its authority and increased its power in complete indifference to the text of the Ninth Amendment.
Contrary to the way it was interpreted in the Progressive Era, the Tenth Amendment clearly states that the federal government may do only those things that the Constitution grants it the power to do; and everything else is reserved to the states, or to the people. This also has been largely ignored, if not flouted, on a daily basis by the government for over a century, in fields ranging from abortion, to the drinking age, the speed limit, and numerous other things, which once were exclusively within the power of the individual states but which have been the subject of federal legislation. Remember that each one of the amendments in the Bill of Rights limits the power of the central government. None of the amendments grant powers to the government, extend the powers of government, or in any way empower the central government over the rights of the people. However, “Federalism,” that is, the recognition of the rights of the states vs. those of the central government, is a concept long-forgotten by almost everyone on the political left and many on the political right, and courts and legislatures often prefer to cite Article I, Section 8, which gives Congress the power to “make all laws which shall be necessary and proper” rather than the Tenth Amendment, which limits the power of Congress.
We have a hard time remembering the last time that Congress refused to do something for the reason that they lacked the power to do it. President Obama famously stated on multiple occasions that he lacked the power to admit certain groups of illegal immigrants, but then went ahead and did it anyway; and he is not the first nor the last President to do so. Congress is even worse, with only a small group of Republican back-benchers regularly voting “no” on issues on the grounds that the Constitution does not grant the power to act.
Both parties might keep the Ninth and Tenth Amendments in a new Bill of Rights, but probably more for their form than for their enforcement. They have been ignored for years, and will continue to be ignored, at least as long as the Courts, the Congresses, and the Presidents are more interested in expanding the power of the government rather than restricting it.
To sum up this exercise – some people would perhaps seek to modify the First Amendment (progressives favor banning “climate change denial” and conservatives might attempt to restrict pornography, violent video games, and the like) and both have at various times expressed wishes to control the press, both parties would be loathe to eliminate the freedoms of speech, the press and peaceful assembly.
The Second Amendment would likely be rejected by the progressives; after all, they advocate to repeal the right to keep and bear arms. And they surely would not see any reason to include the Ninth or the Tenth Amendments. The freedom of religion clause would be attacked by the progressive secular left, but everybody else would oppose such a move, so, although threatened, the freedom of religion probably would continue in a new Bill of Rights.
Conservatives might want to find some way to prohibit excessive court awards as well as excessive fines and bails, but probably would accept the Eighth Amendment without any addition, and they might try to re-write the Second Amendment to further restrict the government’s power to regulate firearms, but they certainly would insist on protecting the right to keep and bear arms. The Third Amendment, prohibiting the quartering of soldiers without consent, might well be eliminated as irrelevant. But Amendments Four through Eight almost certainly be ratified today with very little dissent.
Congressman Clyburn’s statement that many people would not vote in favor of the Bill of Rights today may well be true, but we continue to believe that the vast majority of Americans would insist that the Bill of Rights be ratified again, even if there are some minor changes of language or clarifications. The Founding Fathers and their work may not be revered nowadays in the centers of power in the major coastal cities of America, or in our universities, but they continue to be held in honor everywhere else.