The Tenth Amendment is arguably the most important part of the U.S. Constitution.
Guest article by Walter Coffey
The Tenth Amendment is arguably the most important part of the U.S. Constitution. Unfortunately, it is also seems to be the most ignored. Very few Washington politicians mention the Tenth Amendment today. Why? Because it is meant to serve as a check on their power. To return to the federalist system envisioned by the founders that provides the most amount of individual freedom under the Constitution, upholding the Tenth Amendment is vital.
Foundations for the Tenth Amendment
During the War for Independence, the states considered themselves free and independent countries, and each state declared its individual independence from England on its own. The Continental Congress was established primarily to handle the war effort on behalf of the collective states. In fact, in the 18th century the word “congress” often meant a meeting of sovereign nations. When the war ended, King George III signed a peace treaty with each individual state, not with the “United States government.”
During the war, the Articles of Confederation were written to create a central government that would do the bidding of the states, mainly in the areas of foreign relations and interstate commerce. A provision in the Articles stated that “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.” Thus, the states were granted all rights not specifically granted to the new central government.
This provision carried over to the Bill of Rights in the new Constitution, and it was the basis for the Tenth Amendment.
The Intent of the Constitution
Many who had supported independence, including Samuel Adams and Patrick Henry, refused to support the new Constitution when it was drafted in 1787. They worried that it gave the new federal government too much power at the expense of the states and the people. These opponents were called Anti-Federalists.
To counter Anti-Federalists’ concerns that the Constitution would create an oppressive central state, the Bill of Rights was created to clearly define the new federal government’s limitations. The Bill of Rights included the Tenth Amendment, which states: “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.”
Federal powers were intentionally limited because the founders, having just fought to free themselves from an oppressive central government, were not about to create one of their own. Thus, the Constitution was intended to be a decentralizing document.
The Intent of States’ Rights
To the founders, it was important to organize groups at the grassroots level so that as many people as possible could participate in the political process. The founders knew that power should not be centralized in a national capital, but instead it should be dispersed among the state and local governments. The founders knew that individual liberty is best ensured when government is spread as thinly as possible.
The states agreed to delegate certain powers to the federal government, which would act as their agent in the world. As James Madison wrote in Federalist No. 39, the states were sovereign, and the federal government was created by the states to serve their purposes. All powers that do not belong to the federal government as listed in the Constitution fall under the Tenth Amendment. Period.
To most founders, the Tenth Amendment is the most important part of the Constitution because it is meant to uphold the document’s true meaning. It is also meant to keep the relationships between the federal government, state governments, and the people in their proper perspective. The Tenth Amendment was designed to ensure that the federal government stays decentralized, thus placing the most power possible directly into the people’s hands.
The Virginia and Kentucky Resolves
In 1798, the Alien and Sedition Acts violated the First Amendment by limiting freedom of speech and the press, among other things. In response, Thomas Jefferson and James Madison wrote the Virginia and Kentucky Resolves, which argued that states, having voluntarily agreed to create and enter the Union, also had the power to ignore, or nullify, laws they believed were unconstitutional under their Tenth Amendment power.
Jefferson and Madison argued that the only way a state could remain in the Union and retain its sovereignty was to declare unconstitutional federal laws null and void, and refuse to enforce them within its boundaries. They also wrote that state governments had a responsibility to protect the people from unconstitutional federal laws.
While the Virginia and Kentucky Resolves were not perceived as radical ideas when they were written, those who attempt to invoke their Tenth Amendment rights today are often deemed radicals by the mainstream media. When did it become radical to exercise one’s basic constitutional rights?
To many in the founding generation, especially to Jefferson and Madison, the Tenth Amendment was the check on federal power that ensured America would not turn into another England.
The New England Secession
During the War of 1812, the New England states invoked their Tenth Amendment rights by not only refusing to commit manpower to the war, but by meeting at the Hartford Convention to discuss possibly seceding from the Union. The convention delegates stated that when the federal government becomes oppressive, the states have the sovereign right to resist the federal power.
Many New Englanders were branded traitors for refusing to help the country in a time of war, and from that point on, many equated secession with treason. This did much to diminish the scope of the Tenth Amendment in later years.
The South Carolina Nullification
South Carolina invoked its Tenth Amendment rights in 1828 by refusing to follow a federal tariff law that it deemed unjust. This nearly led to war when President Andrew Jackson threatened to lead federal troops into the state to collect the tariff. A confrontation was avoided when state and federal officials reached a compromise. Note that it was a compromise. The crisis did not end with South Carolina submitting to the federal government. Both sides worked to arrive at a mutually beneficial solution.
The Fugitive Slave Act
In 1850, the Fugitive Slave Act was passed, one of the most repugnant laws in American history. This forced citizens to join posses and help catch runaway slaves. Many outraged northerners refused to abide by this law. Many northern states, most notably Wisconsin and Ohio, nullified the law within their borders in accordance with their Tenth Amendment rights. These states resisted and sometimes even stopped federal agents from coming into their states to hunt for runaways.
The Indivisible Union
By the mid 1800s, the Whigs and then the Republicans began claiming that the Union was indivisible because the federal government was supreme over the states. These politicians included Henry Clay, Daniel Webster and a young Abraham Lincoln, and they set America on a course toward centralization by minimizing the Tenth Amendment.
Webster argued that the federal government superseded the states because the Constitution’s preamble states “We the people,” not “We the states.” But what he failed to mention was that the original draft did read “We the states,” and was only changed because the delegates at the constitutional convention did not yet know if the states would approve the document.
Arbitrarily Enhancing Power
It is only natural that politicians will continuously seek to centralize government because centralization enhances their power. They justify their actions and downplay the Tenth Amendment by using jargon like the federal government has “implied powers” to promote the “general welfare,” and after all, what they do helps the general welfare of the country.
These notions of “implied powers” and “general welfare” are ridiculous because they allow the federal government to arbitrarily decide the extent of its own power. When this happens, the federal government will almost always decide that there is no limit to its powers. This virtually renders the Constitution useless.
A “Living” Document
Many politicians argue that the Constitution is a “living” document that changes with the changing generations of citizens. This is just a clever legal argument that lets the people in power interpret the Constitution any way they want.
This is why the federal government has seized control over citizens’ healthcare, education, auto industry, mortgage industry, energy, financial institutions, and personal lives through high taxes. This is also why George Washington condemned the notion of a “living Constitution” in his Farewell Address.
If the Tenth Amendment was properly applied, the federal government would never have been able to seize the power it has. The governing philosophy in our country today runs almost completely counter to the founders’ intent.
Federal Power Run Amok
Nowadays, simply invoking one’s Tenth Amendment rights is seen as some form of radicalism, or even treason. But if a state or a citizen does not have the power to secure their own sovereignty, then how can federal power remain limited? Without the power check provided by the Tenth Amendment, federal politicians have no incentive to behave within the constitutional framework.
The Constitution provides for a federal system of government to limit the central power, uphold state sovereignty and protect individual freedom. The Tenth Amendment is the mechanism by which that system can be enforced. But over the past century, the federal system has been crippled by legislation, court decisions and amendments. The result has been a runaway federal government with hardly any regard to the Tenth Amendment.
Without the Tenth Amendment, there is no check on federal power. And the federal government will almost never check itself because it is too far removed from the people to effectively govern according to their will. With no check on federal power, there can be no government by consent. In its place is a European system where subjects are supposed to be subservient to the central state. This is the very system that has caused so many Europeans to flee their homelands and come here over the past four hundred years.
Resurrecting the Tenth
States are finally starting to invoke their Tenth Amendment rights over the past few years. Citizens must push local and state government officials to stand up for their rights under the Tenth Amendment to oppose federal laws that may do them harm. Free citizens must make it clear that unconstitutional federal legislation will not be tolerated.
Taking power from the states and placing it in Washington diminishes individual liberty. It means that the people, as citizens of their respective states, are no longer sovereign. The people must take their freedom back, and the Tenth Amendment is the way to do it.