10th Amendment: History and Purpose
24. Feb, 2009 
15 Comments
by Justin D. Lowry, Georgia Conservative Weekly
The purpose of the 10th Amendment is to define the establishment and division of power between the Federal government and state governments. This amendment also protects these powers from both entities. This amendment was used to define the federal taxing power, federal police power, and federal regulations.
At one time, it was read very simply, if it is not in the constitution, the federal government could not pass it to the states. Through the years, the power of the federal government has expanded through the Supreme Court.
The Founding Fathers established this country on the Compact Theory. This theory states that the federal government is a compact of the states, and that the government was a creation of the states.
This is evident in the Treaty of Paris and the Articles of Confederation. The Treaty of Paris stated that the 13 former colonies were “free sovereign and independent states.” The Articles of Confederation also adopted this idea as the second article clearly states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”
When they wrote the Constitution, they included the 10th amendment, which states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” The problem with this statement is that is was too open for implication by our government.
At this time, Congressional power came from Article 6, section 2, The Supremacy Clause. This stated that the federal Constitution is the supreme law of the land and the state judges must abide by this constitution, even if it conflicts with the constitution of the state.
While this country was still young, Congress passed the Alien and Sedition Act. Thomas Jefferson and James Madison believed this to be an overstep of Congressional authority, so they drafted the Kentucky and Virginia Resolution.
They believed that the federal government had no right to exercise powers not specifically delegated to it; should the federal government assume such powers, its acts under them would be void. Thus, it was the right of the states to decide as to the constitutionality of such laws passed by Congress. They utilized the theory of Nullification, which stated that the States were to interpret the Constitution, and any acts they saw unconstitutional were nullified.
The original enemy to the cause of State’s rights and federalism was John Marshall. He was a Supreme Court Justice in the early 1800’s. He handed down two major rulings to cut down State’s Rights. One was McCulloch vs. Maryland.
In this case, he determined that the Constitution grants the federal government implied powers to implement the Constitution’s express powers, as well as that the state’s action may not impede valid constitutional exercises of power by the Federal government. In the other case, Gibbons vs. Ogden, he established that the federal government had the right to regulate interstate commerce by the Commerce Clause.
Chief Justice Marshall’s successor was Roger B. Taney. He established a system of Dual Federalism, where separate but equal branches of government are the best option. Dual federalism is based on the federal and state’s government is split into separate spheres, and is supreme in those spheres. It discusses specifically the role between these two governments.
This theory holds the federal government to certain limitations, these being: the government rules by enumerated power, government has a limited set of constitutional purposes, state and federal government is sovereign within its sphere of operation, and the relationship between the federal and state government is best described as tension instead of cooperation. This system lasted for over a century.
The 16th and 17th amendments both gave great power to the federal government. The 16th amendment allowed the federal government to levy an income tax. The 17th amendment changed the Constitution in which they were no longer appointed by the state legislators, but instead elected by the people. This took away the states ability of direct representation.
Through direct representation, the senators were more apt to protect states rights, and were viewed as the states “ambassador” to the federal government. Interesting fact, the state of Georgia has never ratified the 17th amendment.
President Franklin Roosevelt brought about his New Deal, taking more away from the states. This measure brought about Cooperative Federalism. Cooperative Federalism is where the national and state governments “cooperate” with each other. They cooperate by the federal government telling the states what to do, and the states doing it.
This form of federalism brought about a change in federal aid as well. Funds are distributed through grants, which gives the federal government more power over spending and over the states, as these funds come on a quid pro quo basis.
Now, we have a movement called New Federalism, which was started by Ronald Reagan and his revolution in the 1980s. There are several court cases in the 1990’s, under Chief Justice Rehnquist, that displayed the cause of New Federalism.
The case of United States vs. Lopez decided that the federal government did not have the right, under the Commerce Clause, to regulate firearms in school zones. In the case of United States vs. Morrison, the court decided that victims of gender-motivated crimes could not sue their attackers in federal court.
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Thank you, Mr. Lowry, for your article on the history and purpose of the
10th Amendment. I will share this info. with others. Please continue
to do this much needed work.
Sincerely,
Judith Danford
Judith, thanks for the feedback. This is the first of hopefully many articles from Justin Lowry!
I’m glad my work is appreciated. I look forward to working with the Tenth Amendment Center to restore federalism.
Justin,
Thank you for your efforts and I have a few suggestions. It appears to me that you are locked in a government think tank and not giving due consideration to a citizen think tank.
Legalese, government legislation and or Supreme Court (SC) decisions do not “constitutionally” define anything in or of the Constitution. Government and the Constitution are opposites, one, the Constitution, Rules the other, government.
The Constitution means whatever the Citizenry says it means, forcibly not collectively but individually when in the act or process of performing a Duty in Citizenship. A citizen’s Duty in Citizenship that entails a force against government is limited to the Ballot and Jury Boxes.
Only the Citizenry can use the Ballot Box to hire (elect) Lawmakers which makes the Citizenry the supreme boss of who gets hired to serve in a government position. Otherwise, in the government arena, the Citizenry is the boss of nothing but is a beggar or wimp.
Allan
While the Constitution does not grant the Supreme Court judicial review, it has been an assumed power ever since the Marshall Court with Marbury vs. Madison.
Didn’t the Marbury v. Madison decision say anything repugnant to the Constitution is null and void?
However, the point to get across is SC decisions mean absolutely nothing in the line of orders to or binding on the Citizenry’s Right of Conscience especially when a Citizen is in the act of performing a Duty in Citizenship (Ballot & Jury Boxes (two)). SC decisions mean absolutely to the Constitution too; the SC cannot amend, much less change, the Constitution.
Yes, government Officials of all stripes “claim” (assume) and do many things “repugnant” to the Constitution. Government Official’s claims and even legislation that “infringes” on a Citizen’s freedom, or Right, is repugnant to the Constitution.
Allan
As far as who had the right to say what is or isn’t constitutional was never established within the Constitution. Federalist such as Adams and Hamilton wanted the courts to decide. Anti-federalist such as Jefferson and Madison wanted it to be up to the states.
This is what was said by Chief Justice Marshall “So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
While it was never in the Constitution, the power was assumed. The only way to overturn that is to get the Supreme Court to overturn Marbury vs. Madison. Until then, the people will never have a say what is or isn’t Constitutional. While we vote for congress and president, the Supreme Court is appointed and has final say in all matters.
Yes, that is what “they” (government Officials) say and do but according to the Constitution the People have the absolute say so on who is elected to make Law from the House of Congress and exercise that say so every two years; reference Article I, Section 2.
Then as a Juror a citizen has the absolute power to not indict or convict according to his/her common sense understanding of the Constitution and an unconstitutional law and or an unjust application of a law. Legalese or government legislation or SC decisions are not enforceable binding on a Voter or Juror’s Right of Conscience; reference Amendments 5, 6, and 7 of the Bill of Rights.
Allan
James Wilson’s famous speech of 1787 sheds some light here as well:
“When the people established the powers of legislation under their separate [that is, their state] governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.”
I believe that the way it was established was the people didn’t directly interpret the Constitution, instead it was indirectly through the states. The states were to determine whether a law was constitutional or not.
“the people didn’t directly interpret the Constitution”
That’s correct because the Constitution, not the People, was established to Rule government (Oath of Office). When Officials obeyed their Oath of Office government business was of no concern to the People.
But, what happens when government (Officials) do not honor their Oath of Office? Each House of Congress has the power to correct and fire its Members and all Judges (for as little as bad behavior) and even impeach the President.
A simple truth of the matter is government is not honoring the Oath of Office, therefore, not doing the job as required by the constitution.
I find nothing of “force” in the Constitution available to the States to correct unconstitutionality of the federal government. But, the People do have one direct “constitutional” power to force criminals (perjurers/liars) from elected office, the Ballot Box and can do so every two years for Members of the House of Congress (Article I, Section 2). Remember, all Bills for raising federal revenue must start in the House; Article I, Section 7.
The People have a direct power of force (ballot box) to use against Members of the House (Article I, Section 2) and a direct power against government “legislation” only when serving on a citizen jury (Amendments 5, 6, and 7, of the Bill of Rights).
Allan
Allen, you are undoubtedly correct that the federal government people are not following their oath – and most haven’t for a long, long time. I believe that putting the future of our liberty in the fate of the ballot box is a pipedream – 200+ years of a growth of government with the ballot box as a “weapon” has given us what we have today.
I’m glad to see this old approach being brought up again – state sovereignty, and potentially, nullification.
Michael,
I agree with you. I think the Constitution, government, and liberty it created is lost forever. But my argument is simply about the “constitutional power of force” the People have to keep government contained within the bounds of the Constitution. My argument is not about whether the People will do it or not. My guess is they will not do it, as you said history proves they have not ever in the past. I think there are reasonable arguments that even the Washington administration was not wholly constitutional.
You said the ballot box is a pipe dream, well, just bear in mind it is not “my” pipe dream but the dream of our Founders and written in the Constitution. Any discussed method to control government not mentioned in the Constitution must be a greater pipe dream, the Tenth Amendment or armed revolution, huh?
Wasn’t it Madison, or Jefferson that said something like; the safest depository for freedom is in the hands of the People?
Allan