Thesis: The
unspecified “retained rights” of the Ninth Amendment and the unspecified
“reserved powers” of the Tenth Amendment are independent of the jurisdiction of
both the federal government as well as state governments. Therefore, the
executive, legislative, and/or the judicial branches of federal and state
governments do not have any constitutional standing or authority with respect
to identifying, designating, defining, or making rulings concerning the
conceptual structure and/or content that might be entailed by either the
“retained rights” or “reserved powers” of the Ninth and Tenth Amendments
respectively.
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Another
way of stating the foregoing thesis is the following. Anyone (whether
government official, lawyer, judge, media personality, senator, representative,
corporate official, or academic) who tries to claim that the Constitution
recognizes only the rights, powers, and sovereignty of federal or state
authorities, and, thereby, allegedly establishes that individuals do not have
“retained rights” and “reserved powers” under the Ninth and Tenth Amendments that
give expression to a separate, independent venue of rights, powers and
sovereignty which is not subject to the authority of either the federal or
state governments is engaging, knowingly or unknowingly, in a process of seeking
to gaslight whomever they are addressing.
To
restrict the nature of the Constitution to being the exclusive function of
either federal or state rights and powers is to significantly distort the
character of what is being said in the Bill of Rights facet of the Constitution.
Unfortunately, the foregoing, erroneous, binary reading of the Constitution not
only began to increasingly manifest itself after 1791 when the Bill of Rights had
been ratified, but, in fact, constitutes a perspective that can be traced back
to the various Ratification Conventions that were subsequently convened in
order to consider, discuss, as well as vote upon the acceptability of the
constitutional document that emerged from the Philadelphia Convention of 1787.
More
specifically, during the aforementioned ratification conventions, the statements
of many participants in those gatherings concerning individual rights and
powers were consistently ignored or dismissed by those individuals who were in
favor of a binary axis of authority that was to be divided between federal and
state governments and, therefore, who sought to rigorously resist all efforts to
have any of the ideas about individual rights and powers included in the text
of the pre-amended Constitution that was to be ratified.
Promises
to address the foregoing sorts of concerns were made by those who were in favor
of a binary division of power between federal and state governments, but those
promises were soon forgotten when the constitutional document of 1787 was
ratified by the requisite number of conventions … a number which was
arbitrarily fixed by the Philadelphia document that was to be ratified. One
might also note that the various ratification conventions which took place following
the public release of the 1787 constitutional document consisted entirely of
people who had been appointed by an array of communities, villages, towns, and
cities rather than by state governments.
In
short, state governments were not ratifying the 1787 constitutional document.
That document was being ratified by people who were serving as representatives
of other individuals rather than their state governments, although, as the
activities of the ratification conventions unfolded, the fact that quite a few
of the representatives in the conventions being held in various states were
serving as lobbyists and power brokers for state and federalist interests soon
became quite clear.
As
indicated earlier, promises that had been made during different ratification
conventions concerning the issue of individual rights and powers were forgotten
once the Constitution of 1787 had been ratified. Those concerns might have
remained in the dustbin of history if a variety of individuals had not
persistently reminded an initially resistant James Madison about those promises
and, as a result, induced him (some might say guilted him) to put together a
number of rights concerning people and bring those ideas to Congress for
consideration.
One
might also note in passing the following piece of history. When the wording of
the Tenth Amendment was being discussed by the members of Congress, the
following version of the Tenth Amendment had, more or less, been agreed upon –
namely:
“The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the states, are reserved for the states respectively.”
After
some collective reflection on the foregoing, Roger Sherman, of Connecticut,
added: “or to the people”, to the foregoing. His offering was accepted without
discussion.
Roger
Sherman is the only individual in American history to have been part of the
processes that led to the signing of: (a) the Continental Association; (b) the Declaration
of Independence; (c) the Articles of Confederation, and (d) the 1787
Philadelphia Constitutional Convention, and, as well, participated in the
official Congressional formulation concerning the Bill of Rights. Furthermore,
one should keep in mind that Sherman, along with many of the other participants
who helped bring the United States of America into formal existence, tended to
be wordsmiths, and, therefore, in light of his experience throughout the early
history of America, the fact that he added the words “or to the people” to the
aforementioned preliminary text of the Tenth Amendment indicates that “or to
the people” means something that is different from, and not identical to, the
term “states”. Moreover, given that the addition of the four words which he was
suggesting should be added to the end of the Tenth Amendment were accepted
without comment by his Congressional colleagues indicates that most, if not
all, of them understood the significance of what he was proposing.
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Constitutional Gaslighting, Dershowitz, and the Age of COVID
