Problem with the 10th Amendment (Part 1)

This is the first of two blog entries on the Tenth Amendment:

If you follow the news at all, you’ve probably heard accounts of state legislators, governors, members of Congress, Tea Party groups, and others call for a return to the principles of limited government.  Most recently, these fires have been stoked by the health care legislation currently making its way through Congress and the economic bail outs which were doled out to auto companies, banks, and insurance companies at the end of 2008 and beginning of 2009.  The argument for limited government tends to be accompanied by the state sovereignty view of the U.S. Constitution.  In other words, the states are viewed as completely autonomous entities with the power to nullify federal legislation and decrees which are deemed outside the bounds of the enumerated powers in the Constitution.  To that end, the Tenth Amendment is cited which reads as follows:

“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.”

These arguments spurred my thinking on the subject and compelled me to look deeper into the history of the Tenth Amendment.  I wanted to find out why is was adopted and what power, if any, it contains to truly ensure the federal government plays within its given sphere of influence.  Before I do that, however, I think a bit of a refresher on history is necessary.

After the United States won its freedom from Britian, the prevailing task at hand was to form a new government.  Rightfully wary of a strong national government, the sovereign states (think of each state as a nation unto itself at this point) entered into a pact called the Articles of Confederation.  This arrangement was similar to today’s European Union or the Confederate States of America from 1861-1865.  At that time, our founders didn’t identify themselves as Americans, but rather as Virginians, Georgians, etc.  For example, when Thomas Jefferson wrote letters to friends indicating his desire to return to “my country,” he was speaking of Virginia.  The Articles of Confederation contained very few enumerated powers.  In fact, the legislature had no power to tax, raise an army, or control interstate commerce.  The legislature could not pass laws, but instead were limited to resolutions which required 9 of 12 votes for passage.  With such stringent guidelines for action to occur, the U.S. was not able to effectively address numerous problems, not least of which was the substantial debt from the Revolutionary War.

Our brilliant founding father, James Madison, recognized the issue and realized that the U.S. would be dissolved just as quickly as it was formed if decisive action was not taken soon.  Perhaps his greatest feat, Madison convinced George Washington to come out of retirement and chair the Constitutional Convention in Philadelphia.  Washington reluctantly agreed as he was not keen on the idea of risking his place in posterity for what could be perceived as a fool’s errand.  Had Washington not agreed to participate, it is highly likely that the convention would have never occurred.

Seeking to bolster their argument for a stronger national government, Madison and Hamilton wrote the bulk of what we know today as The Federalist Papers.  Not ignorant to the fact that many were quite disturbed by the idea of a bolstered national government, they sought to allay the fears.  Federalist 45 pointed out that the national government’s powers were “few and defined.”  It went on to note that the powers given to the states were essentially without limit.  In Federalist 46, Madison pointed out that the state and federal governments had such different purposes that it was difficult to conceive of the notion that they would encroach on each other’s territory.

After the Constitution was ratified by the States, those fearing excessive national power advocated for the Bill of Rights.  The Tenth Amendment was proposed in 1789 in the First Congress.  Based on arguments previously mentioned in Federalists 45 and 46, both Madison and Hamilton viewed the amendment as redundant.  Thomas Jefferson, however, had quite the opposite opinion.  He viewed the amendment as absolutely necessary in order to prevent the encroachment of federal power into the arena reserved specifically for the states.

During debate on the Amendment, a representative from South Carolina sought to change the wording to read, “The powers not expressly delegated to the United States by the Constitution…”  On the surface, this distinction seemed inocuous, but Madison objected, noting that implied powers were necessary for the national government, otherwise the Constitution would become quite a burdensome document with every granted power spelled out in triplicate.  The issue died when no other representatives supported the change in wording.  The amendment ultimately was not contested by Madison or Hamilton because they did not view it as harmful to the new federal government’s mission or enumerated powers.  As we all know, the amendment was ratified by the states and became a permanent part of the Constitution.

That’s only the beginning of the story, though.  Stay tuned for Part 2.