The solution was to add the 9th and 10th amendments. The fact the 10th amendment was run roughshod over by the Commerce clause only shows how necessary the explicit enunciation of the other eight was.
The “solution” of the 9th and 10th was the worst solution of all time. Seriously, how many people on this forum said the bump stock ban was illegal because of the 9th and 10th amendments? ZERO.
Sadly the 9th and 10th are unknown, unloved, forgotten, and UNENFORCED.
We know that with or without a bill of rights, the subject of our liberties time and time and time again over the last 200+ years has been the catalyst of heated and intense controversy, litigation, legislation, and even armed conflict. With or without a bill of rights, the questions of just what our constitutional rights are, where in that document they are found, and how they are protected would, therefore, be extremely familiar to all Americans—every bit as familiar as the Bill of Rights.
If, from day one, and stretching 200+ years into the future, you had never once found your rights other than in the Enumeration, then you’d be very unlikely ever to forget the Enumeration. Is the Bill of Rights in any danger of being forgotten? If Congress were tomorrow to propose to abolish several newspapers because Congress found them offensive, how likely is it that the people would somehow forget the Bill of Rights and think the proposal legal and constitutional?
Without a bill of rights, however, Americans long, long ago, would have been forced to know something of the context of the creation and ratification of the Constitution, and something of the thoughts of the men who wrote it.
Therefore, without a bill of rights, but with better than 200 years of history behind us, every schoolchild would be able to recite with complete confidence a vague yet true statement to the effect that “We have lots of rights. The federal government’s rights are few and defined, and they are chiefly found in our Constitution in Article I, Section VIII. A new federal government proposal to regulate the press because of, say, a recent spate of “fake news” is not one of the powers granted the federal government. The proposal is, therefore, illegal.”
Instead of memorizing simply “freedom of speech, religion, and press” and nothing else, we would have memorized a few words to sum up James Madison below in Federalist 45.
The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state.
The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments in times of peace and security.
The fact the 10th amendment was run roughshod over by the Commerce clause only shows how necessary
I would argue that the Commerce Clause did not run over the 10th Amendment. It was run over by a 1942 Wartime Supreme Court wanting to back up FDR and 8 of the 9 were FDR new deal appointees.
The Commerce Clause wasn’t to blame. A runaway activist progressive court was. And no words on paper could have stopped that.
This. Failure of one part of the Constitution does not mean the other parts are worthless.
We just need to FIX the broken part. There is nothing wrong in having “further declaratory and restrictive clauses” being added to the Constitution.