Examination of the Bill of Rights: The Tenth Amendment

My previous post; An Examination of the Bill of Rights: The First Amendment, was in the political ideology section of this site, and while it can reside there, the examination of the Bill of Rights is uniquely American and has caused so much madness that I believe this would be a better forum to continue the examination.

I cannot say that I did a deep analysis of the First Amendment, but I wanted to keep it simple, as the meaning is simple. It is only when we allow the very Government the ability to determine its meaning and allow it to carve out exceptions, does it become muddled and murky. With the Tenth Amendment, I plan to examine this Amendment in depth.

The Tenth Amendment is written 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.

The above is simple and concise. James Madison was clear in the intent -- what ever is not enumerated to the Federal Government or is specifically prohibited, the matters fall with the States or the People. This is clearly stated not only in the ratified form as above, but also in debate.

During the debate on the inclusion of bills of rights, James Madison argued for the following to be included in regards to the now Tenth Amendment:

The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.

The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.

This argument clearly identifies the intent of the Tenth Amendment. Madison wanted to clarify the separation of powers and clearly show that only powers delegated and enumerated within the Federal Constitution are the only powers that the Government holds. Madison even lamented in debate that this will be abused and indeed, it has.

It should be noted that this concept was not new. The Articles of Confederation, as flawed as they were, recognized the limit of power and the delegation of that power as did the suggested Tenth Amendment. In that document, Article II states the following:

Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

Several States, Massachusetts and New Hampshire to be exact, also proclaimed this notion that the State and the People reserve powers not delegated to the Federal Government in their Constitution:

Massachusetts State Constitution:

Art. IV. The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled.

New Hampshire State Constitution

[Art.] 7. [State Sovereignty.] The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.

The precedents was not unfounded nor was it a novel idea; that, that which has not been delegated is held by the States and the People respectively. It is the foundation of a free society in which there is a balance between a "central" government and that of States and the People.

Hopefully this opens up debate on the notion of State Rights, the Tenth Amendment and how it has shaped and kept a central government in check, but has been neglected for over a century.

reply to post by ownbestenemy


Hi OP ..this may be a bit ot but does the district of Columbia have constitution like the other states? I only ask this out of ignorance but thought you might have a link or knowledge I could tap ...peace

the2ofusr1
reply to post by ownbestenemy

 

Hi OP ..this may be a bit ot but does the district of Columbia have constitution like the other states? I only ask this out of ignorance but thought you might have a link or knowledge I could tap ...peace

Not really off topic considering there is a large amount of people living in a "district" and not a State; such as the District of Columbia.

First, the District of Columbia is a Constitutionally created area, as per Article I, Section 8; and reads in part:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings...

Such as it may be, James Madison and the Federalist defended the need for such a "district", separate from the sovereignty of the several states, to conduct and administer the Federal Government and its business.

This said, in its creation, the District of Columbia is wholly a Federally created area, outside any State authority and is subjected to the sole authority and legislation of Congress.

reply to post by ownbestenemy


Maybe it's me. My tinfoil hat seems awfully tight these days.

But I see the federal government challenging the Amendments constantly.

The 10th with new amnesty laws, drug laws, etc.

It's almost as if we are under constant assault from the federal government to cede authority granted to us.

I'll admit to not being the sharpest bowling ball in the strand, but take the case of amnesty and it's conflict with state vs federal laws and the federal authority determining to/or not to pursue these laws.

reply to post by ownbestenemy


Good stuff! Thanks.

I think this is probably one of the most misunderstood concepts in the Constitution. Unless specifically enumerated, the federal government does not posses the authority to do this or that. It is in a corral.

So many non-Americans (heck Americans for that matter) are under the impression the federal government "allows" you to do or not do whatever it decides. That we are at the mercy of whatever it chooses.

I think this is why the federal government and the branches within get away with Bogart-ing their way through pseudo-governing.

This is why all state gun control laws are unconstitutional. The Second Amendment reserves the right to bear arms to the people. States have no more authority to infringe on the people's right to bear arms than the Federal Government.

beezzer
reply to post by ownbestenemy

 

Maybe it's me. My tinfoil hat seems awfully tight these days.

But I see the federal government challenging the Amendments constantly.

The 10th with new amnesty laws, drug laws, etc.

It's almost as if we are under constant assault from the federal government to cede authority granted to us.

I'll admit to not being the sharpest bowling ball in the strand, but take the case of amnesty and it's conflict with state vs federal laws and the federal authority determining to/or not to pursue these laws.

The thing is, the Constitution and the new form of Government was attacked/challenged before the proverbial ink dried. The first challenge was by an administration ran by one of the staunches and ardent supporters of the document; John Adams. When the federalist within Congress wrote and the president signed, the first salvo against the People rang out with the Alien and Sedition Acts.

Beezer, I do have to question some of your wording. You state this: "...from the federal government to cede authority granted to us." While it may seem benign, it is what the Tenth Amendment is about. We are not granted anything; it is the Federal Government that is granted authority over specific enumerated responsibilities by we, the People.

In turn, we reserve all Rights, we reserve all authority, unless we have specifically granted our State Governments to have such power.

I believe your example though to be a great one, as it will be a defining moment, but the States have been neutered with the 17th Amendment and it is the People solely allowing such measures to be allowed; rather it is the small minority of the majority that votes that allows this to happen.

reply to post by ownbestenemy


Apologies if my wording was not succinct. Smart people's threads often intimidate me!

Slavery didn't end because the slaves got fed up and revolted.
Slavery ended because the North intervened.

Dependence, subjugation to the federal government (in relation to the 10th Amendment) won't end when people start disliking it either. Something else will have to occur in order to precipitate real change and challenge to federal over-reach.

I don't know what that is though.

beezzer
reply to post by ownbestenemy

 

Apologies if my wording was not succinct. Smart people's threads often intimidate me!

First my friend, do not feel intimidated. That isn't the goal here. The goal here is to debate, discuss and further mankind's understanding and knowledge.

Slavery didn't end because the slaves got fed up and revolted.
Slavery ended because the North intervened.

Not so! There were many places; north and south, that required no intervention of the State to do what is right. If what you state above is true, how come no intervention by an outside power needed to wage war with the North?

reply to post by ownbestenemy


What I meant was this;

In the south, slaves outnumbered slave masters in many cases, yet no revolt ever occurred.

It took additional intervention to bring about a true change.

We outnumber those in federal office right now who purposely abuse their authority yet nothing happens.

State laws concerning abortion is another example. Federal government withholds funds to promote their own agenda.

beezzer
reply to post by ownbestenemy

 

What I meant was this;

In the south, slaves outnumbered slave masters in many cases, yet no revolt ever occurred.

State laws concerning abortion is another example. Federal government withholds funds to promote their own agenda.

Ah now I see where you are going! In many cases, revolt did happen but this drives at the true nature of the argument if we will. Consider the following analogy:

21st Century America is the setting and its actors are as such: Slaves (we the People) and the owners (the Federal Government). If we play through this analogy, we will see that our owners do not want us to be: educated, able to defend ourselves, speak freely and openly, congregate, move freely, be seen as equals, etc, etc...

So where do we lie? Right now, we have the power instilled upon us and through our culture that helps some of those situations: the Constitution. As we progress and do nothing, are we to wait until outside intervention steps in and "corrects" that which we created?

ownbestenemy


Ah now I see where you are going! In many cases, revolt did happen but this drives at the true nature of the argument if we will. Consider the following analogy:

21st Century America is the setting and its actors are as such: Slaves (we the People) and the owners (the Federal Government). If we play through this analogy, we will see that our owners do not want us to be: educated, able to defend ourselves, speak freely and openly, congregate, move freely, be seen as equals, etc, etc...

So where do we lie? Right now, we have the power instilled upon us and through our culture that helps some of those situations: the Constitution. As we progress and do nothing, are we to wait until outside intervention steps in and "corrects" that which we created?

Our culture would dictate that we are too passive to enact changes on our own.

Sadly, I don't/can't imagine a outside agency that would enable us to regain our freedoms.

But this is what they (federal government) is counting on.

Currently, the federal government is Custer, I just wish we were brave enough Indians.

reply to post by beezzer


There are brave little Indians in the mix. Bond v. United States (a Tenth Amendment case) shows how us lowly citizens can still stand up against a behemoth such as the State.

If you are not familar with Bond, I will give you a brief rundown of that case.

A lady was charged with acquiring and utilizing toxic chemicals against another because of an affair. The charge against Bond was violating 18 U.S.C Section 229; a section that is created via treaty under the Chemical Weapons Convention of 1993.

Bond moved to dismiss the charges because the Federal Government had no jurisdiction over her crimes to indict her; as it was the State's responsibility to charge her appropriately. In essence, the Court needed to decide if a Congressional treaty applies to citizens of a State; as most treaties are international.

In the lengthy argument, Bond successfully argued that her Tenth Amendment and Ninth Amendment Rights were violated when the Federal Government charged her and indicted her on Section 229; as such that the Federal Government held no jurisdiction in the case in the first place.

She, while, guilty of crime, was a brave little Indian...

In preparation of my next piece, and where to place it in the forums since this was moved for not so obvious reasons; I will be looking at the next logical amendment; the Ninth Amendment.

Just background on how I am going through them, I hit up the First Amendment, as it is exactly what we are enjoying here and writing about it is an exact match to what is protected. This thread, I touched on the Tenth Amendment and how it is vital to a Republican form of Government and the Federal form thereof. Next, I will speak about the Ninth; the amendment that has been kicked to the way-side for the exact fears of which Madison worried about with the inclusion of "positive rights".

This isn't to say I want my first piece and to include this one, to die a slow ATS death. They are excellent starting points and pieces that people can point back to in arguments pro/con other threads..

Forgive my neophyte post, but Bond was dismissed because of a judge ruling, correct?

We see now a political game of chess where judges are positioned to different courts just to anticipate such future arguments.

Perhaps I'm just not trusting enough since there seems to be political activism within the courts currently.

I would appreciate being proven wrong, however.

beezzer
Forgive my neophyte post, but Bond was dismissed because of a judge ruling, correct?

We see now a political game of chess where judges are positioned to different courts just to anticipate such future arguments.

Perhaps I'm just not trusting enough since there seems to be political activism within the courts currently.

I would appreciate being proven wrong, however.

Bond's complaint was upheld at the Supreme Court. [emphasis is mine]

The Court of Appeals held that because a State was not a party to the federal criminal proceeding, petitioner had no standing to challenge the statute as an infringement upon the powers reserved to the States. Having concluded that petitioner does have standing to challenge the federal statute on these grounds, this Court now reverses that determination. The merits of petitioner’s challenge to the statute’s validity are to be considered, in the first instance, by the Court of Appeals on remand and are not addressed in this opinion.

There wasn't any political activism in this decision. The court methodically went through the claimants petition and recognized that as a citizen, they indeed had every right to challenge unjust laws that have no jurisdiction.

Granted, it was remanded back to the Appeals Court, it still gives precedents that the People have the ability to challenge Federal claim to a inherently State issue.

reply to post by ownbestenemy


But with the tenth amendment stating that the powers not delegated or prohibited in the Constitution, and since there is no state to delegate the powers to, wouldn't the powers go people of D.C.?

reply to post by ownbestenemy


My point is, political activism exists now in the courts.

It is not about the interpretation of the Constitution, but how an interpretation will benefit a political ideology of the court!

We all were "trained" to look at judge rulings as gospel.

Now?

Rulings are as biased as the politicians that placed the judges in position.

You want to know what frustrates me?

Nominees to the Supreme Court.

It shouldn't matter one bit who gets to that lofty court. But it does. Because ideology taints interpretation.

Conquistadorjordan
reply to post by ownbestenemy

 

But with the tenth amendment stating that the powers not delegated or prohibited in the Constitution, and since there is no state to delegate the powers to, wouldn't the powers go people of D.C.?

No because those powers are held and delegated within Article I, Section 8 as I have posted.

Here is Article I, Section 8, Clause 16 again:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings

Key points above:
The plenary power to create this district.
To "exercise like Authority over all Places purchased by the Consent of the Legislature of the State..."
To "exercise exclusive Legislation in all Cases whatsoever..."

The powers are delegated right there, in the Constitution, to the Legislature; the Tenth Amendment cannot apply. This isn't for naught though. If this is the case, as I have ascribed above, the District of Columbia still enjoys the full faith of the Constitution itself; free speech, right to bear arms, etc, etc...are part of the Constitution.

reply to post by beezzer


I do not deny that activism has invaded the court, but at the same time, that activism must have some legal backing or precedent. They cannot rely upon the Legislature's enjoyment of a fickle people or the Executive's command of the bully pulpit in their decisions. Otherwise they would be eaten alive in my estimation.

Even if we look at "controversial" rulings such as Citizen United or Kelo v. New London; the rulings might have satisfied a certain political leaning; but they were in no way activist. Even looking at the most recent "controversial" ruling of the Patient Protection and Affordability Care Act (aka "Obamacare"); the decision was sound. We may not have liked it, but find me how it was "activist"; even in the lauded Citizen United or Kelo cases...