Has the Tenth Amendment Become a Lie?

In America, the liberty of We The People is at risk, not from a foreign government, but from our own. The founders clearly intended that the Federal Government would have a defined set of powers delegated by the Constitution. All other powers necessary for governing would be reserved to the state governments. A single quote in James Madison’s Federalist Papers No. 45 supports that view:

“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”

Nevertheless, despite assurances to the contrary, the states worried that over time their sovereignty would be eroded by the Federal Government. This fear sprang partially from the ambiguous wording in the Constitution including: “to promote the general welfare;” “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers;” and “all other Powers vested by this Constitution in the Government of the United States.” To allay the fear of Federal incursion into state sovereignty, the Tenth Amendment was promised before ratification but delivered later. It read:

“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.”

But who decides whether or not a particular power is delegated to the United States, or reserved to the individual states? Clearly, the states assumed they had an implied right to judge if a power exercised by the Federal Government had been rightfully delegated to it. Without that assumption, they may not have ratified the Constitution. But what determines whether a particular power not explicitly granted in the Constitution is delegate, and to which entity? It had to be more than a coin flip. Can each state independently make a decision concerning whether a power claimed by the Federal Government is rightly, or wrongly, done so?

In Federalist Paper No. 44, Madison stands against each state making its own decisions concerning powers. He states that a federal system of government could not function if each of the member states was free to decide which laws to follow, and which to ignore. He expressed this view in colorful language:

“In fine, the world would have seen for the first time, a system of government founded on an inversion of the fundamental principles of all governments; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster in which the head was under direction of the members”

Later, in his Report of 1800 on the Virginia Resolutions, Madison wrote that the word “states” in the Tenth Amendment referred to the people of the states – not the state legislatures. So, whatever power is implied is reserved to the people. And what power do the people have in the Constitution? The power to vote. But the power to vote is already granted in the Constitution; it is not created by the Tenth Amendment. Alexander Hamilton noted another power that the states held to prevent the Federal Government from assuming powers not delegated to it. It was military power. The states could fight the Federal Government on the field of battle, if necessary. Hamilton make the case for the strong military power of the states compared to the Federal standing army in Federalist Paper No. 28, as follows: First, the states were concerned about a federal standing army in time of peace. So, the Constitution required that the army be re-authorized every two years and gave the states the power to defund a national standing army.

Second, the state militias combined had considerably more manpower and firepower than the federal standing army, since militias were armed with the same weaponry. The final advantage to the states was that of geography. The vast, and growing, area of the union, over which the federal army might have to militarily engage the states, made wide deployment of federal troops difficult. So, in Federalist Paper No. 28, Hamilton sums up his thinking about the states ability to defend their liberty, in writing that:

“It may safely be received as an axiom in our political system, that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority.”

If, back then, the states’ military power lent confidence to them retaining power not delegated to the federal government, today that factor is long-since gone. The test of States v. Federal military power was settled in the American Civil War. So, what enables a state to maintain control over powers not delegated and limit the central government to only powers delegated? Does any authority granted by the Tenth Amendment, or any other founding document, allow states to decide if powers assumed by federal laws are Constitutionally legitimately delegated to Washington, D.C.?

If a law is challenged by one or more states that claim the Federal Government has usurped a right not granted to it, and the Supreme Court deems the Federal action Constitutional, who wins? If a state executes a law it believes is based on powers it retains, and the Supreme Court disagrees, who prevails? That’s the trouble with the Tenth Amendment. As a statement of a fact, it was used by the Federalists to assure states of their sovereign powers during the ratification conventions. But it provided no authority to guarantee their sovereignty. Back then, the combined military power of the states was far superior to the military power of the Federal Government. And, furthermore, the right to establish and maintain a state’s military power was guaranteed by the Second Amendment. This guarantee was a factor in the states’ decision to join the Union. Another firewall preventing a concentration of Federal power was the provision that U.S. Senators were to be appointed by state legislators. That would assure the states that no law could be passed that was not approved by the states’ representatives in the U.S. Senate. It was a provision that guaranteed the guarantee. That extended guarantee was reversed by the Seventeenth Amendment in 1913, with the direct election of U.S. Senators. In conclusion, today, more than two centuries later, the Tenth Amendment has morphed into a lie. The states gave away their assurance of sovereignty through the amendment process; the Federal Government has usurped enumerable powers not Constitutionally granted to it; and the second amendment is under sustained attack. So how do We The People halt further, and reverse past, expansions of Federal Government powers that represent an incursion into freedom that has gone far beyond anything imagined by the Founders? The liberty of We The People is at risk. Not from a foreign government, but from our own.

Don Mellon——Bio and Archives

Don Mellon wrote summaries for each of the 85 Federalist Papers for posting on the Texas-based website http://www.teaparty911.com.  Mellon has edited and contributed many articles about the intent of the Founders in drafting the U.S. Constitution, noting how states have surrendered their powers granted by the Constitution. He is a Vietnam-era military veteran, and holds a PhD in Physics from Iowa State University. Now retired from Texas Instruments, he lives in East Texas.