As we celebrate the 4th of July, let's ask the question: Did the Framers make a mistake by amending the Constitution with the Bill of Rights? Would Americans have more liberty today had there not been a Bill of Rights? You say, "Williams, what's wrong with you? America without the Bill of Rights is unthinkable!" Let's look at it.
After the 1787 Constitutional Convention, there were intense ratification debates about the proposed Constitution. Both James Madison and Alexander Hamilton expressed grave reservations about Thomas Jefferson's, George Mason's and others insistence that the Constitution be amended by the Bill of Rights. It wasn't because they had little concern with liberty guarantees. Quite to the contrary they were concerned about the loss of liberties.
Alexander Hamilton expressed his concerns in Federalist Paper No. 84, "[B]ills of rights . . . are not only unnecessary in the proposed Constitution, but would even be dangerous." Hamilton asks, "For why declare that things shall not be done [by Congress] which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given [to Congress] by which restrictions may be imposed?" Hamilton's argument was that Congress can only do what the Constitution specifically gives it authority to do. Powers not granted belong to the people and the states. Another way of putting Hamilton's concern: why have an amendment prohibiting Congress from infringing on our right to play hopscotch when the Constitution gives Congress no authority to infringe upon our hopscotch rights in the first place.
Alexander Hamilton added that a Bill of Rights would "contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more [powers] than were granted. . . . [it] would furnish, to men disposed to usurp, a plausible pretense for claiming that power." Going back to our hopscotch example, those who would usurp our God-given liberties might enact a law banning our playing hide-and-seek. They'd justify their actions by claiming that nowhere in the Constitution is there a guaranteed right to play hide-and-seek. They'd say, "hopscotch yes, but hide-and-seek, no."
To mollify Alexander Hamilton's fears about how a Bill of Rights might be used as a pretext to infringe on human rights, the Framers added the Ninth Amendment. The Ninth Amendment reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Boiled down to its basics, the Ninth Amendment says it's impossible to list all of our God-given or natural rights. Just because a right is not listed doesn't mean it can be infringed upon or disparaged by the U.S. Congress. Applying the Ninth Amendment to our example: just because playing hopscotch is listed and hide-and-seek is not doesn't mean that we don't have a right to play hide-and-seek.
How do courts see the Ninth Amendment today? It's more than a safe bet to say that courts, as well as lawyers, treat the Ninth Amendment with the deepest of contempt. In fact, I believe, that if any appellant's lawyer argued Ninth Amendment protections on behalf of his client, he would be thrown out of court if not disbarred. That's what the Ninth Amendment has come to mean today. I believe we all have a right to privacy, but how do you think a Ninth Amendment argument claiming privacy rights would fly with information gathering agencies like the Internal Revenue Service? Try to assert your rights to privacy in dealing with the IRS and other government agencies and I'll send you cigarettes and candy while you're in jail.