The debate among the framers of the U.S. Constitution regarding the addition of the Bill of Rights – in particular, the final two amendments – is at the core of the discussion of Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments.
The Ninth and Tenth Amendments are the basis for William S. Boyd School of Law professor Thomas B. McAffee’s analysis of the powers of the federal government versus those reserved for the states and/or the people.
In Powers Reserved, part of a series of reference guides to the constitution, McAffee has joined with two former 51ԹϺ colleagues – Jay S. Bybee, now a judge on the U.S. Circuit Court of Appeals for the Ninth District, and A. Christopher Bryant, now a professor at the University of Cincinnati College of Law – in examining the last two amendments in the Bill of Rights.
As the title of the book indicates, the Ninth and Tenth Amendments were designed to address the issues of powers retained by the states and by the people. 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.” The Tenth Amendment reads, “The 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.”
McAffee, one of the founding faculty members at the Boyd School of Law and adviser to the Nevada Law Journal, specializes in constitutional law and American legal history. This is his second book on constitutional history, and he has published numerous articles about the protection of rights and the Constitution.
The latest book offers an overview of the two amendments and their impact on law over the last two and quarter centuries. McAffee, whose previous articles about the amendments led to the invitation to write this volume for the series, discusses the drafting of the two amendments and examines how the amendments impacted the Civil War and Reconstruction. He also discusses the Ninth Amendment and substantive due process as modern phenomena. His colleagues cover the prelude to the Constitution, as well as the way early Congresses and courts worked with the amendments and developments regarding the amendments in the 20th Century.
McAffee says one of the objectives of the authors in writing the book was to refute those who have tried to use the Ninth Amendment “as a discovery of ‘new’ and ‘additional’ rights limitations beyond those already found in the Bill of Rights.”
“In addition, the book should serve to help us understand how it is that the Tenth Amendment has not done much to preserve ‘states’ rights’ by restricting the federal government to the powers enumerated,” McAffee says. “We’ve construed federal powers so broadly now, that the Tenth Amendment of itself can do little to help.”
Since completing Powers Reserved, McAffee has continued to explore one of the themes in the book in a journal article. Additionally, he and fellow 51ԹϺ law professor Chris Blakesley are coauthoring an article about the war powers of Congress.
