Amendment X: 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.
Hypocrisy and politicians! There is nothing new in this
love-match made by Cupid�s arrow of self-interest, right? Wrong, in the current
flurry of state legislatures passing or considering resolutions asserting state
sovereignty, many politicians are doing the right thing for the wrong reasons.
With close to 30 states having approved or currently
considering resolutions of sovereignty, it is noteworthy how many Republicans
are now standing up to be counted as defenders of the Constitution, especially
after their silence during the Bush administration�s eight-year-assault on the
Bill of Rights. And what of the Democrats who were formerly vehement critics of
Bush�s actions? They have suddenly gone silent as the Obama administration
continues many of Bush�s policies they once opposed. Hypocrisy and partisan
politics, of course, but above this is a more fundamental issue involving the
Tenth Amendment to the U.S. Constitution.
After the Constitution was ratified by state conventions,
the constitutional debate continued with the submission of a Bill of Rights.
Alexander Hamilton argued against such a bill, asserting that the people had
not surrendered their rights in ratifying the Constitution, so such protections
were unnecessary. �Here, in strictness, the people surrender nothing, and as
they retain everything, they have no need of particular reservations.�
Furthermore, Hamilton feared that protecting specific rights might imply that
any unmentioned rights would not be protected.
Opposed to Hamilton�s argument, Thomas Jefferson, at the
time serving as ambassador to France, supported such a bill. He wrote to James
Madison, the author of the Constitution: �Half a loaf is better than no bread.
If we cannot secure all our rights, let us secure what we can.�
Madison was, like Hamilton, concerned that enumerating such
rights could �enlarge the powers delegated by the Constitution.� Consequently,
he submitted the following draft of the Ninth Amendment to the Congress: �The
exceptions here or elsewhere in the Constitution, made in favor of particular
rights, shall not be so construed as to diminish the just importance of other
rights retained by the people; or as to enlarge the powers delegated by the
Constitution; but either as actual limitations of such powers, or as inserted
merely for greater caution.�
Madison further elaborated on these rights in his speech
introducing the Bill of Rights: �It has been said, by way of objection to a
Bill of Rights. . . . that in the Federal Government they are unnecessary,
because the power enumerated, and it follows, that all that are not granted by
the Constitution are retained; that the Constitution is a bill of powers, the
great residuum being the rights of the people; and, therefore, a Bill of Rights
cannot be so necessary as if the residuum was thrown into the hands of the
Government. I admit that these arguments are not entirely without foundation,
but they are not as conclusive to the extent it has been proposed. It is true
the powers of the general government are circumscribed; they are directed to
particular objects; but even if government keeps within those limits, it has
certain discretionary powers with respect to the means, which may admit of
Today, after the Bush administration�s restrictions of
constitutional rights through the USAPATRIOT Act, the John Warner Defense Act
of 2007, the Military Commissions Act, and Presidential Decision Directive 51,
with Republican and Democratic congressional acquiescence, the rights debate
has devolved to the states. Consequently, the Tenth Amendment has moved to
Ratified on 15 December 1791, the Tenth Amendment reserves
all powers not granted to the national government to the states or the people.
Based on an earlier provision of the Articles of Confederation where �each
state retains its sovereignty,� it restates the Constitution�s principle of
federalism, and in supporting States Rights, it makes explicit the idea that
the federal government is limited to those powers granted in the Constitution.
Previously, States Rights was used to justify two indelible
moral stains on the national character: slavery and segregation. However, today
the issues include 2nd Amendment gun rights,
unfunded mandates and demands from Washington, D.C., on how to spend stimulus
money, national identification cards, and a presidential declaration of martial
law, among others.
While most of the Founding Fathers believed the Constitution
did not grant the national government any power that it did not expressly
mention, most American political leaders since the Civil War have opined that
the Constitution grants the national government the authority to do more or
less anything that is not expressly prohibited by the first eight amendments.
And with the contemporary submission of Congress to the executive, the debate
is now between the states and the executive.
The present debate is constitutionally necessary and long
overdue. As the debate unfolds, hopefully not into a full-blown constitutional
crisis -- the last one resulted in the Civil War -- partisan politics and party
loyalties will undoubtedly be the surface politics on the television screen and
talk radio. Will the public realize that the Constitution is not what George W.
Bush called �just a goddamned piece of paper�? Since the Republican and
Democratic Congresses have been missing in action, it�s time for the states to
reclaim Jefferson�s �half a loaf.�
Brad Berner formerly taught at Arizona State
University and is currently teaching at Moscow State University, Moscow,