Joe Biden And I Finally Agree on the Constitution, Sort of

Feb 4, 2022 by David Fowler

Joe Biden And I Finally Agree on the Constitution, Sort of
Last week President Joe Biden thrust into the national spotlight the Ninth Amendment I have been talking about for the last two years. What he said was right, but for all the wrong reasons. The Constitution will be recovered or lost for a generation or more based on whether states correctly use the Ninth Amendment. Tennessee’s legislature and governor can lead the way in using it correctly if they will.

The Kind of Justice the President Wants

President Biden said he wanted someone on the United States Supreme Court who has “a judicial philosophy that is more of one that suggests that there are unenumerated rights in the Constitution, and all the amendments mean something, including the Ninth Amendment.”  
I agree with the President that the first eight amendments in the Bill of Rights do not exhaust all the rights that a free people have. That, though, is where our agreement ends.
Biden wants a justice who will use the Ninth Amendment’s reference to “other” rights beyond those enumerated in the Bill of Rights to “find” all kinds of unenumerated rights. These newfound, “unenumerated rights,” existing only in the minds of liberal justices will be used by future justices (a packed Court?) to hold unconstitutional all kinds of legislation enacted by conservative state legislatures.
In other words, Biden does not want a justice that I would like, a justice who will interpret the so-called “enumerated rights” referenced in the Ninth Amendment according to the understanding of rights that existed under the common law. Common law was grounded in an antecedent unwritten law of God pertaining to all that He created and their interrelationships; Biden’s justice would hate that thought!
Biden does not want a justice who understands that the “other rights” are limited to those that were identified in the common law at the time the Constitution was adopted. How can the Constitution “live” at the hands of justices if they are tied to the past!

How to Prevent Irreparable Destruction to the Constitution

The way to prevent a potentially terrible interpretation of the Ninth Amendment is for a state to tee up as soon as possible a law relying on the Ninth Amendment that provides the six current conservative justices a correct interpretation of the Ninth Amendment that they can adopt as their own.
If the Court uses a correct interpretation of the Ninth Amendment to uphold such a state law, then that majority opinion will be the precedent that cuts off any arguments for a liberal interpretation before they can get started.

What is the Correct Interpretation?

As indicated above, the correct interpretation, which is also conservative, is that the Ninth Amendment must be interpreted according to the principles underlying the common law on which the entire Constitution was framed and that the only “other rights” are those that existed at common law at the time the Constitution was adopted.
However, the second part of a correct interpretation of the Ninth Amendment is that it must be read in conjunction with the Tenth Amendment. The Ninth Amendment says the “other rights” were “retained by the people” and the Tenth Amendment says that jurisdiction to protect those rights was “reserved to the states, respectively, or to the people.”  
In other words, reading the Ninth and Tenth Amendments correctly means the identifiable common law rights existing when the Constitution was adopted—like the common law right of a man and woman to marry as husband and wife—are the only “other rights” to be “found,” and they are none of the federal government’s business, particularly its judicial branch!

Can Tennessee’s Legislature Protect Our Constitution?

Yes. The kind of state legislation that needs to be adopted, using the correct legal arguments, is the Marital Contract Recording Act, Senate Bill 562/House Bill 233. 
The “whereas” clauses and the “legislative findings” were written by a team of constitutional experts to make the Supreme Court consider the Ninth and Tenth Amendments and hopefully bring an end to decades of justices making up rights under the Fourteenth Amendment’s Due Process Clause to thwart state laws. You can read those provisions at this link and you will know more about the Constitution than most lawyers and judges.

Speak Now or Forever Hold Your Peace

Whoever defines the Ninth Amendment first wins the Constitution for decades to come. 
If conservative states arrive first, they can work through legislation like the Marital Contract Recording Act to limit the power of liberal justices and begin returning jurisdiction over all manner of common law matters to the states.
If liberals arrive first then, given enough time, expect to see a liberal state argue that abortion should be protected by the Ninth Amendment, even if the Fourteenth Amendment no longer protects it. They will whittle away at this until they get there, and conservatives will wonder what happened to them.
Tennessee’s legislature and governor need to be for the Marital Contract Recording Act.
Let Governor Lee (615-741-2100) and your legislator know if you want your Constitution in the hands of Biden’s nominee or in yours.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

Subscribe to Email Updates


Donate to FACT

Make a Donation