The Tenth Amendment

| August 23, 2019

– 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.

Category: Guest Post, Politics, The Constitution

Comments (8)

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  1. Just Lurkin says:

    If we take the tenth amendment seriously then we should abolish the Federal Department of Education (among others), because education would fall into “all other powers”. But we don’t take it seriously, which is why we have the D.C. leviathan that devours so much of the nation’s wealth today.

    • A Proud Infidel®™️ says:

      IMHO it’s NO coincidence that the quality of Public Education in the USA plummeted after the Federal Department of Education was inflicted on the US populace.

      • Veritas Omnia Vincit says:

        API; in an interesting side bar IQ has been declining world wide since about 1975…the Dept Of Education was founded formally in 1979…coincidence or contributing factor the US component of the decline?

        Testing during the 20th century indicated as much as an 18 point positive swing within two generations…now it appears that there is a five point deficit when tested against the 1975 peak.

        I haven’t read the full testing or even the full abstract on the report yet so much of what I’m relaying is from memory and at my age might be off a little, but it was compelling enough that I’ve downloaded the report for a full read when I’m back after Labor Day….

  2. docduracoat says:

    I have very much enjoyed these essays on the bill of rights.
    Thank you for posting them!

  3. Mason says:

    Most people don’t know that the Bill of Rights was seen as unnecessary, that it was superfluous given that Congress wasn’t given to authority to impede any of the rights so declared.

    Shows a remarkable lack of civic education that people don’t learn this. Everyone who went to public school (me included) in the last few decades is basically taught the federal government is able to fix all our ills. Nothing is taught about how the federal government can’t regulate intrastate activities, state crimes, or any of the other limitations on their power. Which is why, when something happens (i.e. Katrina, Ferguson) they demand the federal government come in and fix it. No regard given first to if they 𝘴𝘩𝘰𝘶𝘭𝘥, and even less regard given to if they 𝘤𝘢𝘯.

  4. 5th/77th FA says:

    “If it is not specifically forbidden, we can get away with it. If it is specifically forbidden, let’s make a law where we can nibble away at the Constitution as written.” Congress over the last 50 + years.

    Way back yonder, while attending night school Business Mgmt, I had several gubmint classes. The FIRST night I asked the perfesser if this was going to be a class on how gubmit works or on how it is supposed to work. He told me I had a bad attitude.

    Good lesson post there VoV. One more til final exam? Will there be a Class Trip? I hear there’s a nice beer and burger joint in DC. Or maybe AW1Ed’s for a whine and cheese party after the (go) Army (beat) Navy Game?

  5. Ex-PH2 says:

    Let’s get rid of several cash-guzzling departments such as the EPA and DofEd, for starters. Those are only two. There are two many, they eat up tax money that could go for other things that are necessary.

    • Huey Jock says:

      I’ll see your cash-guzzling departments and raise you the “REGULATIONS” they generate.

      The bureaucracies that are not constitutionally mandated are the prime source of illegal control over the populace.

      Bureaucrat: A pin-headed underachiever, too dumb to get an education, too lazy to get a job gets a “position” within a bureaucracy, assumes authority, and makes life miserable for everybody