Bill of Rights - 10 or 8?

[ashling]

Traditionally, the first ten ammendments to the Cinstitution have formed our Bill of Rights. However, some people, including my wife's Con. Law textbook refer to the first eight as the Bill of Rights.

I am interested in hen did this misrepresentation begin, and how prevalent is it.

[left is right]

1. I was taught that there were 10

but the neocons have whittled them down to 2 and 1/2. What a relief to not have the burden of those extra 7 and 1/2

[Geoff R. Casavant]

2. I don't think it's a misrepresentation, just a different interpretation

Amendments 9 and 10 don't actually confer or confirm and rights or liberties. One simply says, in effect, just because a right isn't listed here doesn't mean the people don't have it, and the other says, in effect, any powers not given to the federal government belong to either the states or to the people.

[Goblinmonger]

4. Jinx n/t

[ashling]

8. oh, I know why its done

And I certainly realize that it is "just another interpretation." And intelligent design is just another theory - never mind that it's wrong.

The Constitution as written was seen as defective by many because it did not contain a Bill of Rights. The 1st Congress were presented with 17 amendments, of those, 12 were sent ou to be ratified, and 10 were ratified by the states. The name "Bill of Rights" was immediately used to denote these first ten amendments.

To dismiss 9 and 10 as not conferring any rights is incorrect. The fact that they were omnibus in nature does not mean the did not confer any rights.

Anyway, I was just interested in when this use came about.

[Goblinmonger]

3. Perhaps

It is because 9 and 10 don't really delineate specific rights but rather deal in "whatever we didn't talk about" kind of language.

I have never heard that before, but just giving my $.25 (my opinion is worth more just because).

[fryguy]

5. what Conn. Law text book is she reading from?

I have NEVER heard of the Bill of Rights referred to as being only the first eight Amendments.

[TheWraith]

6. I don't know when, but I think it's because the last two entries aren't rights per se...

Instead, they outline how unenumerated rights are supposed to be handled. It depends on your point of view as to what constitutes "rights," I guess...

[ashling]

9. just because the dont "confer" specific rights

and are omnibus in nature, does not mean that they are any less a part of the Bill of Rights.

[Czolgosz]

7. The first 10 amendments are the Bill of Rights. Amendments 1 through 8 set out specific rights of

the people. The 9th Amendment does not set out any specific rights of the people but explicitly states that Amendments 1 through 8 were not intended to be an exhaustive list of all rights (which is why the 9th Amendment is often discussed in the context of the constitutional basis for a broad reading of the Bill of Rights to encompass a right to privacy which is not specifically enumeration in such terms).

The 10th Amendment also does not set out any specific rights of the people but sets out the rights of the states and the people to jointly exercise all powers not expressly delegated to the federal government by the Constitution.

It is historically inaccurate to refer to anything less than the first ten amendments as the Bill of Rights, but the first eight amendments are the ones which set out specific enumerated rights of the people.

[razors edge]

10. Perhaps the rights they set out for the people

are the right to live under a contract that limits the central government from removing or constricting their inalienable rights in general.

I consider this as a very important personal right that is, unfortunately like the first eight, not upheld by the government when they see them as a hindrance to achieving their own goals.

[ashling]

11. This is a very good summation

What I am trying to find out is when people first started using this "interpretation" to say that the first 8 are the "Bill of Rights"

Conservatives do this sort of the way the use "Democrat" for the Democratic party. To tacitly deny the same authority to number 9 as to the first 8.

I sort of assumed that it was a neocon type thing, but I understand that reference to this was made by Justice Cardozo and I am wondering when this first worked its way into the lexicon.

If anyone can help me with that question, I would appreciate it.

Thanks for your very complete explication, however.

[Cerridwen]

12. Griswold v. Connecticut - Roe v. Wade - 14th amendment -

9th amendment (and possibly 10th) = "right to privacy"

Look for the connections in the legal debates and SC rulings which examined "right to privacy" to support Roe.

Look to the 60s starting with Griswold - anti-choicers question 9th and 10th amendment "interpretations"


Here's an excerpt of an article which will explain much better than I am able:

<big snip>

The Griswold decision was the starting point of a continuing debate over the proper role of the Ninth Amendment in constitutional jurisprudence. One side of the debate reads the Ninth Amendment to mean that the Constitution protects not only those liberties written into the Bill of Rights but some additional liberties found outside the express language of any one provision. The other side sees no way to identify the unenumerated rights protected by the Ninth Amendment and no objective method by which to interpret and apply such rights. Under this view, courts that interpret and apply the Ninth Amendment do so in a manner that reflects the political and personal preferences of the presiding judge. Federal courts have attempted to reach a middle ground.

A number of federal courts have ruled that the Ninth Amendment is a rule of judicial construction, or a guideline for interpretation, and not an independent source of constitutional rights (Mann v. Meachem, 929 F. Supp. 622 <N.D.N.Y. 1996> ). These courts view the Ninth Amendment as an invitation to liberally interpret the express provisions of the Constitution. However, federal courts will not recognize constitutional rights claimed to derive solely from the Ninth Amendment (United States v. Vital Health Products, 786 F. Supp. 761 <E.D. Wis. 1992> ). By itself, one court held, the Ninth Amendment does not enunciate any substantive rights. Instead the amendment serves to protect other fundamental liberties that are implicit, though not mentioned, in the Bill of Rights (Rothner v. City of Chicago, 725 F. Supp. 945 <N.D. Ill. 1989> ).

After Griswold, federal courts were flooded with novel claims based on unenumerated rights. Almost without exception, these novel Ninth Amendment claims were rejected.

<snip>

On appeal the Supreme Court affirmed the district court's ruling, stating that the right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 <1973>). Federal courts continue to rely on the Ninth Amendment in support of a woman's constitutional right to choose abortion under certain circumstances.

(emphasis added to highlight what I thought was pertinent to your question)
link to this article

I don't have an answer to your question exactly, but perhaps this can act as a guide for where you might want to look and observe. What you describe appears to be an attempt to muddy interpretations in an effort to overturn Roe and other privacy legislation.



Edit to add: to overturn Roe and other privacy legislation.