Clarence Brandley is still on death row in a
Texas prison. Photos by Michael Williams.
The questions a Supreme Court
judge must answer when confronted
with an Eighth Amendment case
are: Is the penalty imposed excessive, does the penalty meet with society's norm, does the penalty permit modern justice to infuse?
Each question must also be answered by lower courts, according to
Rosenberg, when handing out punishment.
Americans constitutional authors
felt strongly enough that they tied
this amendment to the other to prevent government from over running
the people, according to Palmer.
The Ninth Amendment to the Constitution was added to the Bill of
Rights to protect the assumed rights
of the people over the enumerated
rights of the state and federal governments, according to Rosenberg.
The Ninth, Rosenberg said, applies to the unwritten laws we live
by, those laws which are the morals
To explain she cited the case of
Goldberg and Griswald vs. the State
of Connecticut (1965). The argument
centered on the use of contraceptives in relation of a married couple.
Connecticut had legislated laws forbidding the use of any type of contraceptive by persons married or not.
As one person put it "legislative morality"! These are as Rosenberg noted, "assumed rights outside of those
written in the constitution, that
must be protected."
Those unwritten, implied, laws are
the ones people live by from day to
day with no real need of police action, according to Rosenberg. For example: it is understood that when a
person kills another, they have not
only broken the written or common
law, but the moral code. Even before
Moses wrote down the Ten Commandments, it was understood that
murder was an anti-social behavior,
and must be corrected.
What the Ninth Amendment does
is belay the fears of a paranoid populous that felt government would
over run the people.
As Rosenberg put it, "the Bill of
Rights tells us the majority can not
do all they want."
The Ninth Amendment put it simply into the language of an earlier
generation. Thus 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 final say belongs to the people.
The Ninth Amendment to the Constitution was designed to protect the
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individual's rights if the state was
over run by the Federal Government,
according to Palmer. The Tenth
Amendment, however, was designed
to prevent the Federal Government
from circumventing the states'
rights and thereby taking control of
all aspects of governing the people
and the need to implement the Ninth
The Tenth Amendment states,
"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."
James Madison, one of the fram-
ers of the Constitution, tried to explain the reason for a Tenth Amendment and the Constitution. He said,
"A dependence of the people is no
doubt the primary control on the
government; but experience has
taught mankind the necessity of
While Madison was originally arguing for the need of checks and balances in the government itself; he
was inadvertently arguing for the
need of a bill of rights, the tenth in
As Madison put it, "If men were
angels, no government would be
necessary. If angels were to govern
men, neither external nor internal
controls on government would be
necessary." It is for that precise reason the enumerated protection of the
Tenth Amendment is called tor.
Palmer brought out the Supreme
Court's ruling on the constitutionality of the New Deal legislation. It
was not a denial of the need of such
programs, but the way in which it
was done, the court said. The particular areas that Federal programs
had taken over, belonged in the domain of the states.
The Supreme Court held that the
Tenth Amendment stipulated only
certain things could be done by the
Federal Government, the rest are up
to the state.
However, Palmer notes that Supreme Court rulings in recent years
have drifted away from that theme.
Recent rulings open more leeway for
federal intervention in state affairs
and affairs of private citizens.
Madison summed up the Tenth
Amendment and the purpose behind
this nation with this; "It is of great
importance in a republic, not only to
guard the society against the oppression of its rulers; but to guard one
part of the society against the injustices of the other part."
— Allen Manning