Hello and welcome back to the Civic Flame, a podcast where we take a deep dive into the US Constitution. This week, weÕre continuing our discussion of your rights and why the US Constitution is way more radical then we give it credit for. As always, IÕm Amber, a professor of law and policy at Worcester State University and constitutional radical. 00:00:30 IÕm a Constitutional Radical This week, weÕre getting into my favorite Amendment: the Ninth Amendment, and another straight banger, the 10th Amendment. If youÕre the kind of person who likes freedom from the government, grab your torches and pitchforks, and letÕs go! (transition music) 00:00:52 The Bill of Rights was not a complete list If youÕre been a longtime listener, you may remember that we often start by looking at where things come from. Why? Because the Founders are all dead, and the best way to understand what problems the Constitution was intended to address, then we have to know what was going on at the time. Like any other document, the US Constitution, and in this case, the Bill of Rights, is a product of its time. And at the time our Constitution was written there were some major fights about the Constitution. Remember, we get that great Declaration of Independence, but thatÕs not a legal system. So, the legal system we get is under the Articles of Confederation. But, uh oh, after a mere eight years, the Articles is failing pretty badly. There are some issues like, a lot of states hate each other. This results in states making their own foreign policy and printing their own money. The federal government couldnÕt pay its debt because it couldnÕt collect taxes. So, we got some stuff out of that like Article 4 an privileges and immunities and full faith and credit, or Article 1 section 8 with enumerated powers and the ability to collect taxes. 00:02:00 The Anti-Federalists and Federalists both wanted a government of limited powers What you also get is a huge argument between the Anti-Federalists (who wanted to keep the Articles of Confederation) and the Federalists (who wanted the Constitution). The Anti- Federalists also said that they would eventually agree to the Constitution but only if it had a Bill of Rights. The Federalists said no because if you give a Bill of Rights people are going to get the wrong idea. Hamilton actually wrote that giving a Bill of Rights would give more power to the federal government because, why would you list certain rights as extra protected unless the government had some authority in that area? Because the government only has the authority we give to it, of course it doesnÕt need a Bill of Rights to keep it out. It should just stay out. 00:02:47 What does the Ninth Amendment say? Why am I rehashing that again? Because thatÕs exactly why we have the 9th Amendment. The Ninth Amendment is my favorite amendment, and it should be your, too. HereÕs what it says: ÒThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Ó So bite me, government overreach! (The Bite me part was me, not the Constitution). There has been some questions about how strong these protections on individual rights were, but ultimately, this is the way to say Òthe rights we mention are extra protected, people get al the other ones.Ó The reason it is unclear how far this extends is because the Amendment has never been brought to Court. People donÕt use it. And I argue they should. Every time the government does something that people sue about, they should bring it up. 00:03:41 The Ninth Amendment deserves its time to shine! The Ninth Amendment is a fundamental part of the Bill of Rights and premises the priority of the whole popular sovereignty, rights of the people thing. The point is to make it clear that whatever rights are listed are NOT our only rights. Paired with the Tenth Amendment (and originally there were some questions about whether they would be put together), these amendments are meant to limit the power of the federal government. The Ninth by giving the benefit of the doubt to the people, and the Tenth by dealing with statesÕ rights. 00:05:04 What does the Tenth Amendment say? The Tenth Amendment says, ÒThe 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.Ó This is part of how the US configures what is called dual sovereigntyÑthe federal government and state governmentÕs are co-equal. This is one of the fundamental aspects of the US governmental system and it is embedded all over the place. Dual federalism is why state flags and the national flag can fly at the same level. 00:05:35 Texans and the US Flag Code and when Vermont was its own country Fun fact, while I was living in Texas, someone tried to convince me that Texas is the only state that can fly its flag at the same height as the national flag because it was its own country. Rather than explain that Vermont was its own country for four years longer than Texas was its own country, because I didnÕt want to hurt their feelings or get shot, I showed them the US flag code which has a section on this. They looked at what I said and still argued with me. But, for those of you non-Texas out there, I assure you that the other 49 states are not committing a federal flag code violation, your flags are allowed to be at the same height as the national flag. So are city flags, by the way, because thatÕs federalism. WeÕre coequal. This was originally set up by having separate spheres of power. There were things that the federal government had control overÑinterstate commerce clause, the militaryÑand states had power over state thingsÑhealth, education, and morals (together known as the police powers). 00:06:56 The Constitutional Revolution of 1937 alters federalism for the New Deal But since the Constitutional Revolution of 1937 that helped solidify the New Deal as an appropriate use of federal power, the federal-state distinction has gotten a little fuzzy. Some people compare previous federalism as dual federalism where there were specifically separated power and cooperative federalism where there is a lot of overlap. This is an argument lately about how much the federalism weÕre supposed to have. The argument is that Òhorse and buggyÓ federalism doesnÕt make any sense in a time when we have the internet and planes and interstate travel and the internet. Others say, itÕs more important than ever to have strict boundaries as individual states are meant to have their own culture and their own way of doing things. This isnÕt an argument going away any time soon, but the good news is, you donÕt have to pick a side. Personally, I think we should always put the federal government on notice, but be happy when theyÕre being useful. (transition) 00:08:01 Next time, weÕll start the 14th Amendment! Well, thatÕs my constitutional radicalism for you. Next week, weÕll hit the 14th Amendment and talk about how it matters in relation to the Bill of Rights. In the meantime, like, follow, and share. Follow us on Bluesky or Instagram, and check out our Birthzillas podcast that is re taking off on Substack or on Instagram at Birthzillas!. Until next time, take care out there and keep the civic flame burning bright. (outro) 00:08:30 Thank you The Civic Flame is a Dr Fun Sponge Project with writer Amber Vayo and Sounds Producer Matt Munyon.