PostHeaderIcon Tenth Amendment

I too had a lengthy comment that got lost in Troy’s post below, which is worth starting a new post to discuss:

“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.” -Tenth Amendment

I would submit that at least 90% of what the Federal government does is a flagrant violation of the Tenth Amendment. To give an obvious indisputable example, the entire Department of Education, and everything that it does, is a direct violation of it. The words education or school are not mentioned anywhere in it; and nowhere is it empowered to meddle in the affairs of citizens, in choosing how to educate their children. It is important to understand whence came the Tenth Amendment. The Constitution is essentially a free trade agreement (think EU – Common Market) and mutual defense pact (think NATO) between 13 sovereign nations. Our Founders were the representatives of those nations, hammering out the compact agreement in lengthy, competitive, tough, negotiations. I.e. it was a compromise.

They were not at all engaged in an exercise of designing an idyllic society and government, such as Troy and I are currently amusing ourselves with in the A Possible Solution comment section. They already had a weak confederacy of 13 small nation states, with well-defined social structures. They were about the task of federating them into a more powerful and competitive entity, for engaging in world commerce as an equal among empires. Jealous of their autonomy and sovereignty, and having just several years before fought for their independence from an oppressive tyrannical empire, they were not at all interested in creating another one.

Thus, the Constitution they wrought, very specifically limited the powers of the federation to just a few essential functions, which they carefully enumerated. They meant it to have no other. To further preclude the amassing of tyrannical power, in a horizontal separation of powers, they divided it into three coequal branches. Then, to make sure their States would be equally represented and somewhat in control, they created a bicameral legislature, with the upper house consisting of two Senators appointed by each of the individual State legislatures, and serving at their pleasure. (The Seventeenth Amendment, purportedly ratified in 1913, was a tragedy that radically changed the nature of our republic.)

The Constitution was drafted in 1787 and went into effect replacing the Articles of Confederation in 1789, after sufficient States had ratified it; but only then because there was an agreement to add the Bill of Rights as the first Amendments, as soon as Congress met under its jurisdiction. Several of the States refused to ratify it otherwise; because they wanted it made absolutely clear that the Federal government lacked the power to do anything not enumerated in it. From the Preamble to the Bill of Rights:

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

Notice how adamant they were, from the opening line of the First Amendment:

“Congress shall make no law…”

Now, if they had had the good sense to stop right there… we would all have a lot more freedom today! 😉

After being ratified by 3/4 of the States, the Bill of Rights finally became part of the Supreme Law of the Land in 1791. So, since the Constitution is a compact between States, why does the Tenth Amendment say:

“… or to the people.”

Or? This is where the vertical separation of powers and individual sovereignty enter the picture. It is instructive to review the Ninth Amendment, which gets a lot less attention than it deserves:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. -Ninth Amendment

I emphasize the word ‘retained‘ to point out that our Founders understood and championed the concept of individual sovereignty. We the people of America, are each on par with any monarch and, like them, acquire our rights and prerogatives at birth. We are not subjects, vassals, serfs, or chattel. For the benefits of living in a cooperative community, we agree to relinquish some of our birthrights (most notably the right to initiate force), to the local county government established by us to maintain law and order.

It is not the other way around. Government can grant privileges and licenses; but it cannot grant rights. We already have and retain all of those, which we did not agree to relinquish. Thus, the Founders had to say ‘or‘; because they were representing the States, under the limited powers delegated to them, and had no authority to negotiate any of the rights retained by the people. The vertical separation of powers in America, is the hierarchy of power derived from those relinquished rights. It goes thusly:

The individual sovereign, the county government, the State government, and lastly the Federal government. Please grasp that the power pyramid is inverted. At the top, is all the people as individual sovereigns. For the benefit of community, they each loaned some of their sovereign rights to their county government. For the benefit of universal laws over a wider territory, the counties passed a portion of those sovereign rights down to a State government. Finally, for the benefit of free trade and mutual defense, with great trepidation, the States passed some of what remained of those sovereign rights, down to a deliberately and severely limited Federal government.

Yes, the Federal government is expected to behave as a powerful sovereign power, among other sovereign nations, whatever form of government they have; that is its primary reason for existence. It represents a nation of sovereigns on the world stage; but it cannot legally exercise that power against the people, counties, or States, who created and outranks it, and for whom it serves. Fully grokking and internalizing this, is essential to unraveling the gruesome muddle, which our national government has become in America. If every voter understood this, much mischief would die aborning from the outrage.

That is why the Progressive public schools no longer teach our history and Constitution, and why it is so difficult to awaken those convinced our Founders created an authoritarian democracy, to rule over its subjects. This, in turn, explains why most Liber-T-Party types are old fogies like me, who learned this stuff back when they still taught the Constitution in junior high school, clause by clause; and lauded our Founders as the brilliant young Patriots they were, rather than dismiss them as bigoted old white men. â—„Daveâ–º

5 Responses to “Tenth Amendment”

  • Troy says:

    The 10th amendment says specifically that certain powers were delegated to the Federal Government by the States and by the People. Not given in perpetuity, not surrendered but delegated.

    I submit that delegation is NOT a permanent state, that whatever has been delegated can be reclaimed by the true owner of the delegated power or responsibility. In other words, the Federal Government exists at the pleasure and with the consent of the States and the People, respectively.

    I contend that the best way for the States and the People to re-assert their primacy is through repeated acts of nullification (starting with Obamacare). The next best way, as we have been discussing elsewhere, is via a Constitutional Convention.

    Whatever the method used, the States and the People have a very short time remaining before we are faced with an entrenched dictatorship. Then, our only option will be violent resistance. Why not try the methods provided in our Constitution before it comes to that?


  • Greg says:

    Also, would you agree that the purpose of the 10th Amendment not only limiting the federal government, but it is also to say “The right to personal choice shall not be abridged?”

    • No, not the Tenth, that was the Ninth. You also have the right to stick green ice cream in your left ear, and there is nothing in the Constitution empowering the government to prevent it. Your so-called ‘right to personal choice’ is just a subset of your natural right to Liberty, and there is no need to list all one’s rights. The Constitution limits the governments powers, which automatically protects your sovereignty, or autonomy if you prefer. The Bill of Rights was technically unnecessary and changed nothing, because the Federal government was not empowered by the Constitution to violate our individual Liberty; but the original States wanted to make absolutely certain that they understood their limitations. History has proven the wisdom of their caution. â—„Daveâ–º

      • Greg says:

        I would say that to us, such choices as the one above (As well as the other 8 — not counting the 10th because that’s powers to the states as well), are common sense. However, leaders in today’s day and age might overlook such things in their zeal to grow the government further and further. In my opinion, the Bill of Rights is necessary not for us, but for the leaders of our government, to remind them what must not be infringed upon in any case.

        John Adams was one of the first offenders when he signed into law the Alien and Sedition Acts, which made it illegal to speak out against the government. As far as I know, the laws are inactive, though still technically legal as the Supreme Court has never overturned them. I contend that had the right of “Free Speech” not been given to us, there could have been far, far worse laws passed by succeeding (successive? Not sure which is the correct word here) Presidents.

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