Podcasts | Constitutionally Speaking

Episode 41: A Republic, If You Can Keep It: The Ninth and Tenth Amendments

A member of Congress holds a copy of the Constitution in Washington, D.C., June 20, 2017. (Kevin Lamarque/REUTERS)

In this final episode from their Bill of Rights series, Jay and Luke read the Ninth Amendment and Tenth Amendments together, trace the political fight between Federalists and Antifederalists underlying these amendments, and show how they frame the relationship between the people, the states, and the federal government.

The guys also outline how the Ninth Amendment calls into question overarching theories about incorporating the Bill of Rights against the states, and point out how it clears up elements already present in the Constitution. Finally, they link the text of the amendments to their sources in England and the state constitutions. These sources help illustrate the extent to which the Bill of Rights is a check on federal power but not the guarantor of a libertarian political economy. Instead, the Bill of Rights remains throughout an attempt to prevent the criminalization of politics. These are stacked powers: The people sit behind the states, the states enjoy a lot of power foregone by the federal government, but the federal government also serves as a meaningful check on the states.

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