These objections were admitted, by very many, if not all, the friends of the constitution themselves, to be very weighty; and such as ought to be immediately removed by amendments. And it was only because these friends of the constitution pledged themselves to use their influence to secure these amendments, that the adoption of the constitution itself was secured. And it was in fulfilment of these pledges, and to remove these objections, that the amendments were proposed and adopted.
The first eight amendments specified particularly various prohibitions upon the power of congress; such, for example, as those securing to the people the free exercise of religion, the freedom of speech and the press, the right to keep and bear arms, etc., etc. Then followed the ninth amendment, in these words:
The enumeration in the constitution, of certain rights, [retained by the people] shall not be construed to deny or disparage others retained by the people.
Here is an authoritative declaration, that “the people” have “other rights” than those specially “enumerated in the constitution”; and that these “other rights” were “retained by the people”; that is, that congress should have no power to infringe them.
What, then, were these “other rights,” that had not been “enumerated”; but which were nevertheless “retained by the people”?
Plainly they were men’s natural “rights”; for these are the only “rights” that “the people” ever had, or, consequently, that they could “retain.”
And as no attempt is made to enumerate all these “other rights,” or any considerable number of them, and as it would be obviously impossible to enumerate all, or any considerable number, of them; and as no exceptions are made of any of them, the necessary, the legal, the inevitable inference is, that they were all “retained”; and that congress should have no power to violate any of them.
Now, if congress and the courts had attempted to obey this amendment, as they were constitutionally bound to do, they would soon have found that they had really no lawmaking power whatever left to them; because they would have found that they could make no law at all, of their own invention, that would not violate men’s natural rights.
All men’s natural rights are co-extensive with natural law, the law of justice; or justice as a science. This law is the exact measure, and the only measure, of any and every man’s natural rights. No one of these natural rights can be taken from any man, without doing him an injustice; and no more than these rights can be given to any one, unless by taking from the natural rights of one or more others.
In short, every man’s natural rights are, first, the right to do, with himself and his property, everything that he pleases to do, and that justice towards others does not forbid him to do; and, secondly, to be free from all compulsion, by others, to do anything whatever, except what justice to others requires him to do.
Such, then, has been the constitutional law of this country since 1791; admitting, for the sake of the argument—what I do not really admit to be a fact—that the constitution, so called, has ever been a law at all.
This amendment, from the remarkable circumstances under which it was proposed and adopted, must have made an impression upon the minds of all the public men of the time; although they may not have fully comprehended, and doubtless did not fully comprehend, its sweeping effects upon all the supposed powers of the government.
But whatever impression it may have made upon the public men of that time, its authority and power were wholly lost upon their successors; and probably, for at least eighty years, it has never been heard of, either in congress or the courts.
John Marshall was perfectly familiar with all the circumstances, under which this, and the other nine amendments, were proposed and adopted. He was thirty-two years old (lacking seven days) when the constitution, as originally framed, was published (September 17, 1787); and he was a member of the Virginia convention that ratified it. He knew perfectly the objections that were raised to it, in that convention, on the ground of its inadequate guaranty of men’s natural rights. He knew with what force these objections were urged by some of the ablest members of the convention. And he knew that, to obviate these objections, the convention, as a body, without a dissenting voice, so far as appears, recommended that very stringent amendments, for securing men’s natural rights, be made to the constitution. And he knew further, that, but for these amendments being recommended, the constitution would not have been adopted by the convention.5
The amendments proposed were too numerous to be repeated here, although they would be very instructive, as showing how jealous the people were, lest their natural rights should be invaded by laws made by congress. And that the convention might do everything in its power to secure the adoption of these amendments, it resolved as follows:
And the convention do, in the name and behalf of the people of this commonwealth, enjoin it upon their representatives in congress to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions, in the manner provided by the 5th article of the said Constitution; and, in all congressional laws to be passed in the meantime, to conform to the spirit of these amendments, as far as the said Constitution will admit.—Elliot’s Debates, Vol. 3, p. 661.
In seven other State conventions, to wit, in those of Massachusetts, New Hampshire, Rhode Island, New York, Maryland, North Carolina, and South Carolina, the inadequate security for men’s natural rights, and the necessity for amendments, were admitted, and insisted upon, in very similar terms to those in Virginia.
In Massachusetts, the convention proposed nine amendments to the constitution; and resolved as follows:
And the convention do, in the name and in the behalf of the people of this commonwealth, enjoin it upon their representatives in Congress, at all times, until the alterations and provisions aforesaid have been considered, agreeably to the 5th article of the said Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the said article.—Elliot’s Debates, Vol. 2, p. 178.
The New Hampshire convention, that ratified the constitution, proposed twelve amendments, and added:
And the Convention do, in the name and behalf of the people of this State, enjoin it upon their representatives in congress, at all times, until the alterations and provisions aforesaid have been considered agreeably to the fifth article of the said Constitution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the article.—Elliot’s Debates, Vol. 1, p. 326.
The Rhode Island convention, in ratifying the constitution, put forth a declaration of rights, in eighteen articles, and also proposed twenty-one amendments to the constitution; and prescribed as follows:
And the Convention do, in the name and behalf of the people of the State of Rhode Island and Providence Plantations, enjoin it upon their senators and representative or representatives, which may be elected to represent this State in congress, to exert all their influence, and use all reasonable means, to obtain a ratification of the following amendments to the said Constitution, in the manner prescribed therein; and in all laws to be passed by the congress in the mean time, to conform to the spirit of the said amendments, as far as the Constitution will admit.—Elliot’s Debates, Vol. 1, p. 335.
The New York convention, that ratified the constitution, proposed a great many amendments, and added:
And the Convention do, in the name and behalf of the people of the State of New York, enjoin it upon their representatives in congress, to exert all their influence, and use all reasonable means, to obtain a ratification of the following amendments to the said Constitution, in the manner prescribed therein; and in all laws to be passed by the congress, in the mean time, to conform to the spirit of the said amendments as far as the Constitution will admit.—Elliot’s Debates, Vol. 1, p.