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Problem with the 10th Amendment (Part 2)
January 19, 2010
For Part 1 of this article, please click here.
It did not take long for disagreements to ensue between the states and federal government. Quite contrary to Madison’s prediction, the lines of jurisdiction between the state governments and the national government became increasingly blurred. The country quickly divided into camps officially known as Federalists and Anti-Federalists. Generally speaking, the Anti-Federalists were supporters of states’ rights while the Federalists were proponents of a strong national government. Significant early Federalists were Hamilton, Washington, and Adams. Noted Anti-Federalists were Jefferson and Madison. Yes, you read that correctly – Madison, under the influence of his mentor Jefferson, became an Anti-Federalist and strong advocate for the state sovereignty point of view. In his Virginia Resolutions published in 1799, Madison stated, “…in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of evil…”
One would assume that Madison, Jefferson, and the other states rights believers intended to utilize the Tenth Amendment as the crucifix by which to the exorcise the demons of excessive national power. If so, it is a pretty good strategy, especially since it never hurts to have the Bill of Rights on your side. However, in doing research for this post, I came upon a fascinating essay by Walter Berns in the book, A Nation of States. The piece is entitled The Meaning of the Tenth Amendment. In the piece, Berns believes that the state sovereignty argument in terms of the Tenth Amendment holds little weight when viewed through the lens of the Constitution. The reasons are thus: A) the states did not intend to be ultimate reviewer on federal power, B) if they did intend to be the judge on the limits on federal power, they would have insisted on such provisions in the Constitution, and C) if the intention of the states was to be the ultimate judge on the federal government’s power, there would be no need for the Tenth Amendment.
In essence, if the states were to be the ultimate judge on federal power, they would have outlined this in the Constitution. However, this was not their intent as the founders had experienced just such regulations under the Articles of Confederation. The government under the Articles of Confederation was impotent and the founders did not wish to recreate a scenario in which the states were free to act fully on their own.
Berns sums up his argument this way:
“The Tenth Amendment would make no sense as an admonition addressed to the states. It can be understood only as an admonition to the Supreme Court that the federal government may not legitimately exercise all of the powers of government.”
Now, the problem with the Tenth Amendment (if you choose to view it that way) comes into focus. It has no teeth. There is no way, other than by petitioning the Supreme Court, to ensure that the federal government plays on its side of the playground. It’s a guidepost and a warning, one which even the founders viewed as superfluous. When taken into account in light of the “necessary and proper” clause and the commerce clause, the Tenth Amendment becomes even weaker. Over time, Congress has used the ambiguous language of these clauses to pass legislation pertaining to all manner of things designated of national importance.
Nevertheless, the states did not intend themselves to be at the complete mercy of the Supreme Court. Quite the contrary, actually. A key event which weakened the Tenth Amendment even further and diluted the power of the states in relation to the national government was passage of the 17th Amendment. The 17th Amendment provided for the direct election of U.S. Senators. Previously, senators were chosen by the state legislatures with the purpose of representing the interests of the state in the U.S. Congress. The U.S. House of Representatives was the only body in the bicameral legislature directly elected by the people and tasked with doing their will at the federal level. This is why the states currently find themselves at the mercy of the federal government. There is no group vested with the responsibility of ensuring that the spirit of the Tenth Amendment is upheld. Instead, we have unfunded mandates and states begging for handouts from the national government because their original advocates in Congress are now beholden to the people. Unfortunately, the people do not care about the line between state and national power. They care that their lives are made easier, even if that comes at the expense of the state’s Constitutional jurisdiction and perhaps, their liberty.
I believe that the States or “Several States” did in fact intend to oversee the federal government and the power that was given to it in limitation. This is proven by the content of the Kentucky Resolutions and the Virginia Resolutions (the Resolves).
The colonies came together in agreement that limited power would be given to the federal government for specific purposes. All others were reserved for the “Several States” and individuals. They did in fact, place safeguards in the Constitution through the 10th Amendment because they were afraid of the very thing happening in the future that happened with King George III of England. They knew too well what happens with a central government becomes out of control.
Through the Bill of Rights and the U.S. Constitution, we have the right to think what we want, say what we think, publish what we think, own property, own guns, and protect ourselves from any enemy foreign or domestic; including a tyrannical government.
This is what we are facing today and the “Several States” and individual citizens must stand up to this despotism or we are doomed.
Look at the language Virginia used to ratify the Constitution… My fellow Virginians and founding fathers have left an out…
WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.
With these impressions, with a solemn appeal to the searcher of hearts for the purity of our intentions, and under the conviction, that, whatsoever imperfections may exist in the Constitution, ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by a delay, with a hope of obtaining amendments previous to the ratification:
We the said Delegates, in the name and in behalf of the people of Virginia, do by these presents assent to, and ratify the Constitution recommended on the seventeenth day of September, one thousand seven hundred and eighty seven, by the Foederal Convention for the Government of the United States; hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said People, according to an authentic copy hereto annexed, in the words following:
The 10th amendment was a major issue in the early history of the United States. As James Madison states in the Federalist papers, #39
It appears, on the one hand, that the United States Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for a special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing the entire nation, but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each States,-the authority of the people themselves.
Thru the 10th amendment, we come to the Kentucky & Viaginia Resolutions Resolutions in 1798-99 in reaction to the Alien and Sedition Acts. In 1809-10 nullification was briefly revived by New England states which opposed a national embargo (Non-Intercourse Act).
The concept returned in Southern reactions to the Tariff of 1828, the Tariff of 1832.
The right of nullification, was a cautious and gradual kind of secession actually understood at the time of the formation of the United States Constitution, as an extraordinary mode of redress against unconstitutional acts within or of the Union in a case of unusual magnitude where, due to the passions of the day, or the very nature of the question, normal modes of redress by petition or litigation could not be effective and beneficial. If nullification did not produce results, then secession would follow.
Nullification was not an end to the issue. In each of these cases, the Congress addressed the issues involved & came to a negotiated settlement.
It was a lack of compromise tht lead the Civil War. Even thou slavery has been presented as the main issue for the war, a closer study will find that congress was willing to protect slavery by a Constitutional amendment. If you check Lincoln’s first inaugural address we find “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to
do so.” Those who nominated and elected me did so with full knowledge that I had
made this, and many similar declarations, and had never recanted them.
If you ask most people they say that the issue of nullification & secession died at Appomattox. The only issue that was settled that day was the use of force.
In my reasearch, I find the latest case of Nullification to be in 2007. Without filing the formal documents, the states forced the Federal government to recend the Bimetric Indentification Act.
The simple truth is that the Federal Government is a creation of the States, not the other way around. The constitution did not dissolve the States, nor did it reflect their intention to relinquish the totality of their sovereign power. What it did do – in plain language – was cede certain enumerated powers to a sovereign federal government, and reserve what are today called Police Powers (basically anything related to human safety and well being) solely to the states.
With this division of powers, we can (and the founders did) expect a normal and healthy competition for power – but at the edges of state-federal authority. This ‘fight for the fringes’ has been corrupted, and now the federal system of checks and balance has been replaced by what I label a ‘farm system for the feds’. Everything and everybody at every level of government points at the DC ‘show’ (sorry for the baseball analogy) for validation and advancement.
This happened for two key reasons, initially. First, the direct election of senators undercut the influence of state legislators to protect their turf as arbiters of the Police Power through their Senatorial voice in DC. Second, the creation of the federal reserve and (nearly simultaneous) income tax gave the feds superior revenue raising capability relative to the states – and this has been used to buy/force states into a position of vassalage (or at least obeisance) during the intervening years.
I believe the Tea Party movement – and this week’s Massachusetts surprise – reflects the public’s implicit recognition of how their lives have been made vulnerable to a rapacious and unaccountable Federal monolith. What we have yet to articulate is what may be required to restore these powers to their proper balance, and to provide a sense of comfort that our local problems may be solved locally without unnecessary interference by the feds.
For me, there are several critical steps in this process:
First, the states must demand a restoration of their rightful role as arbiter of Police Powers. This will require the election of at least several Governors willing to ‘go to the mat’ in reasoned and non-violent defense of state prerogatives, and if necessary the nullification of federal oversteps into state issues. Think Gandhi. Think ‘tell them to pound sand’ – politely.
Second, we need to elect a federal executive that will support these Governors. President Reagan advocated a restoration of federalism, but didn’t have a base of governors with whom to work. We MUST have the state houses ready to accept those powers that must be devolved, or the effort will fail again.
Third, we must express how this will benefit our citizens in language they can understand. We need to ask questions like ‘why is the Federal Government involved in developing specs for your toilet? For your children’s school lunch program? In land use policy in your town? In your police and fire department’s compensation plans? In ‘personal life policies’, e.g. abortion, gay marriage, assisted suicide and beyond? Why should California be forced to adopt the same social policies as South Carolina? Isn’t forcing us to ‘be the same’ driving us to resent one another? Didn’t the Founders set up the Federal System to avoid exactly the kind of endless, cruel conflict we observe between red and blue-inclined citizens today?
Finally, we need to recognize this is not going to happen overnight. We have been conditioned to accept the federal behemoth – even as we resent its fruits. We need a sustained battle in favor of local control of non-federal issues to move the ball in our direction. The statists won’t quit, and we cannot cede the emotional or intellectual high ground to them to prevail. We must defend our towns, our counties and our states (and the officials that stand up for them) when the Feds casually attempt to stomp upon their reasonable and ordinary exercise of propoer authority.
The Founders set the system up to force power interests fight among themselves for their limited powers, and thereby largely leave us alone. The end of checks and balances between and among the feds and states has liberated the statists to focus solely upon controlling us. That is what has us scared as a people – but we need to help the public think through what to do with that insight.
Thanks for the thoughtful posting.
Mr. Thompson,
The problem with your argument is that under the scenario that you present, the states have no RAPID RECOURSE in the event that federal laws, rules, regulations, and mandates become unbearable. But, thankfully such is not the case. When the state delegates attended the 1787 Constitutional Convention in Philadelphia, they already had total sovereignty to run their own affairs, and were doing just fine, thank you very much. They were not there to give that up. The Constitution is a confederation of states based on a Compact/Contract/Agreement, which if breached by either party, had REMEDIES. The states’ remedy to federal tyranny was clearly, and yes redundantly pointed out by both the 9th and 10th Amendments. If the states had forfeited their sovereignty, it is illogical that they would have retained their own constitutions. They unequivocally retained 98% of their sovereignty plus the right to be the sole judge of the validity of federal acts affecting their state. They also reserved the right to Defund, and Disobey as necessary under the 10th Amendment if the enumerated powers of Article 1, Section 8 were violated. Until Obama, the most egregious example of federal usurpation ocurred when Lincoln asked for 75,000 volunteers to go down into the southern states and violate their sovereign authority to govern themselves. The Constitution did not give Lincoln the authority to enforce a moral code on the states, nor to prevent the states from nullification of federal over-reach or to secede if necessary. The Southern Confederacy was NOT an insurrection! They met with federal officials in attempts to reconcile differences, but to no avail. The Nullification movement is a legitimate method to ward off modern day Carpetbaggers (federal enforcers, the guys with pin striped suits wearing dark sunglasses), otherwise comparable to Scribes and Pharisees, legalistic tyrants filled with arrogance and power lust. No, we don’t have to sit around and watch while our Constitutional republic is converted into an oligarchy. The people gave the feds limited authority, and the people can correct them by either electing honorable replacements, or Defunding and Disobeying every day of the year at the state level when they go too far. The local Sheriff is also our defender against federal intrusion. We DO NOT have to tolerate abuse from the three branches of our federal government or from the rules and regulations that they try to impose in violation of their very limited authority. The people have the right to put Fedzilla back in its cage, and slam the door in its face! It is time to declare the truth LOUDLY!
I disagree with the 10th amendment because as usual, it is too little too late. Seems to be the strategy of conservatives.
We need to create agendas, elect our politicians and get rid of them if need be. JUST LIKE THE UNIONS DO. How can we be so short sighted. 10th ammendment is just a payoff for lawyers because thats where any arguments will remain for decades.
Anyone that thinks the 10th amendment will curtail healthcare change will be unhappy to see 47% of the Doctors retire when it is enacted. Lets see if the 10th amendment can get them or the out of business insurance companies back!!!
The IRS will be collecting your insurance premiums while the 10th ammendment winds its way through the courts.
Go to RECALL NOW.org for alternative strategies
How can something tha was enacted over 100 years ago be to little to late? The solutions offered have been around for a long time, they just haven’t been used lately. If you want a new solution to the problem, try driving a few tanks to the Capital. Since we are not willing to do that, we try to fight with the weapons we have. When fighting a legal entity, you have to use legal weapons.