The Tenth Amendment

– Defines States Rights. and Individual’s rights.

Power to the States and to the People!

Veritas Omnia Vincit is back with us- for a while, anyway. He was kind enough to pen his thoughts on the Tenth Amendment, and e-mail them to me for posting. He has some “Personal Business Ashore” to take care of, and then he’ll turn the crank for the final Amendment, the one we’ve all been waiting for.

No, not the Eleventh. Here’s V-

Veritas Omnia Vincit

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.

One of the things I hadn’t mentioned in my previous essays was the simple fact that the original Constitution submitted to the convention contain no Bill of Rights at all…in fact the state delegations voted 10-0 against including a bill of rights in the Constitution.

We might ask why that was so, and the answer once again speaks directly to the view of the founders that the Federal Government they envisioned was relatively powerless as in their vision the Federal Government had no power at all other than what was in the Constitution itself. In their minds if it wasn’t written expressly in the Constitution the Federal Government could not engage in whatever was being considered.

Regarding Freedom of Speech James Wilson was reported to have said, “There is no need for such a provision as there is given to the general government no power whatsoever concerning it.” Regarding religion Edmund Randolph made a similar point when he wrote, “no part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion.”

The overwhelming majority of these first round writings on the Constitution were almost all in agreement that a Bill of Rights was unnecessary because the national government’s limited and clearly enumerated powers did not in any fashion include the power to violate these personal rights. Alexander Hamilton actually feared that including a Bill of Rights might suggest to the Federal Government it had powers that it had not actually been granted when he wrote, “(a bill of rights) would contain various exceptions to powers NOT granted, and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done for which there no power to do?” His concern was that any list would be inherently incomplete and consequently that incompleteness would indirectly expose any rights not included to infringement by the Government.

For me, the takeaway from that component of the debate prior to bringing the Bill of Rights into the equation is to once again reinforce the notion that the Framers intended to restrict as much as possible any Federal Government and leave as much power as possible in the people and their local governments. Interestingly enough the holdout states that refused to ratify without a Bill of Rights were Massachusetts and Virginia. The fear from those delegations was that without such an addendum the Federal Government would quickly consume all the rights of the people and of their local state governments.

As I tried to illustrate in my essay on the ninth the concerns of those Framers regarding enumerating rights specifically were covered for the people in the Ninth Amendment. It was a warning that under no circumstances should the government attempt to draw any conclusions about the breadth and scope of the rights of the people based on the partial listing of them in the first eight amendments. The Tenth Amendment is really another affirmation that the inclusion of this Bill of Rights should not change the fundamental nature of the Federal Government, that it is a government limited in scope and with specific, enumerated powers. The purpose of this amendment is to make sure the first question we ask about the exercising of any Federal power is not whether it violates our rights, but does it exceed the limited powers granted it in the Constitution.

Consequently for nearly two centuries SCOTUS held that any law that would have been constitutional before the Tenth was ratified could become unconstitutional simply because the tenth now existed. During the bicentennial that began to change and in 1986 Garcia V San Antonio MTA created among legal scholars and professionals a kind of Tenth Amendment Doctrine. Much of that refers to whether or not states must comply with certain regulations or commands issued at the Federal level. The commonality of these cases it that thus far the Tenth has been confined to cases involving states rights and has not been invoked to date regarding individual rights.

There are a host of cases one can read on this concept of a Tenth Amendment Doctrine along with a great many opinions.

Once again I will take the libertarian (small L) concept and suggest the Tenth was designed to remind us all that the Framers and the Founders always envisioned restricting government as much as possible and when there was a dispute that understanding of the Constitution and the Bill of Rights as a restriction AGAINST government over reach should be the first thing we consider when interpreting any laws for their constitutionality or even their feasibility when being considered prior to enactment.

As always, there essays are nothing more than the ramblings of a curmudgeonly, old, libertarian (small L) leaning individual. I welcome your thoughts and look forward to your own interpretations.
VoV

Category: Guest Post, Politics, The Constitution