The Bill of Rights: The Tenth Amendment

Oil on canvas portrait of Alexander Hamilton b...

Oil on canvas portrait of Alexander Hamilton by John Trumbull (Photo credit: Wikipedia)

 

The final Amendment of the Bill of Rights is simple and straightforward.

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.

Alexander Hamilton, and other Federalists, posited that the Constitution was full of implied powers. That is, powers that are not specifically enumerated, but are implied within the Constitution. In arguing that a central bank was Constitutional (as Secretary of the Treasury), Hamilton said:

Now it appears to the Secretary of the Treasury, that this general principle is inherent in the very definition of Government and essential to every step of the progress to be made by that of the United States, namely–that every power vested in a Government is in its nature sovereign, and includes by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions and exceptions specified in the constitution, or not immoral, or not contrary to the essential ends of political society.

In other words (and this is an argument I have heard some of my lefty friends use), the government has the right to do it, because it’s the government.

This amendment is more a declaration of States’ Rights than individual rights, an attempt to give the states back some of the sovereignty that was stripped from them upon the ratification of the Constitution.

Really, the only debate was whether or not to include the word expressly in front of delegated. Had that happened, the amendment would have been much more restrictive than it is.

James Madison believed that there had to be a little room for interpretation, otherwise, he believed, people would get bogged down in minutiae and start analyzing every comma and semi-colon (2nd Amendment, anyone?). However, he did not believe that interpretation went as far as Hamilton’s argument. It was Hamilton’s argument about the government having the right to do things because it is the government is what turned Madison into an anti-Federalist.

He was also against the insertion of the word expressly specifically for the reasons mentioned above. However, the Supreme Court ruled that

The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land.

There is nothing in the Constitution of the United States similar to the Articles of Confederation, which exclude incidental or implied powers.

If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.

Since the word expressly was not used in the wording of the Amendment, the court fell back on the established argument by Hamilton that there are implied powers within the Constitution. Just one word, and this amendment would have teeth. 

Instead, the Supreme Court has since ruled that the Tenth Amendment really adds nothing to the Constitution, that it is a truism (a self evident truth, as in all men are created equal) rather than an expression of rights:

United States v. Darby (1941)

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

So, if it is nothing more than a truism, what would be the point of including it? Just because the Supreme Court rules a certain way, does not mean they are correct. I refer you to the infamous Eminent Domain case, Kelo v. New London (2005). I could also refer you to the infamous Dred Scott decision.

Powers not delegated is very clear. That leaves no room for the interpretation that certain powers are implied. There are some areas of the Constitution that are vague, as in Privileges and Immunities of Citizenship, and have to interpreted somehow, but these are not in reference to government powers.

It is Hamilton’s implied powers, that have allowed the Federal government to grab more power over time.

Let’s take a look at the powers delegated to the Federal government.

 

House Exclusive Powers:

 

  • The sole power of Impeachment
  • The Power of the Purse; all revenue raising bills originate from the House (that is, from the People)

 

Senate Exclusive Powers:

 

  • The sole power to try impeachments
  • Advise the President on treaties, and give 2/3 consent before ratification
  • Consent (confirm) Presidential appointments for ambassadors, justices, and those who will hold high offices of Profit and Trust.
  • The Senate may let the offices concerned choose and appoint their own lower level officers.
  • Can remove justices in cases of bad or poor behavior.

 

Congressional Powers :

 

  • Lay and collect taxes from whatever source, per the 16th Amendment), duties, imposts and excises
  • All duties, imposts and excises will be uniform throughout the country
  • Pay the debts
  • Provide for the common defense of the United States
  • Provide for the general welfare of the United States
  • Borrow money on the credit of the United States
  • Regulate commerce with foreign nations, among the States, and with the Indian tribes
  • Establish a uniform rule of naturalization
  • Establish uniform laws on the subject of bankruptcy throughout the nation
  • Coin money, regulate the value of the money and foreign coin, and to set the standard for weights and measures
  • Provide for punishment of counterfeiting securities and national coin
  • Establish post offices and post roads
  • Promote the progress of science and useful arts by securing for limited times to authors and inventors the right to their respective writings and discoveries (copyrights and patents)
  • Constitute tribunals inferior to the Supreme Court
  • Define and punish piracies and felonies on the high seas, and offenses against the law of nations
  • Declare war
  • Grant letters of Marque and Reprisal
  • Make rules concerning captures on land and water
  • Raise and support armies, but appropriation of money for that use  can’t be longer than a term of two years
  • Provide and maintain a navy
  • Make rules for the government and regulation of land and naval forces
  • Provide for the calling forth of the militia to execute the law of the Union, suppress insurrections and repel invasions
  • Provide for the organizing, arming, and disciplining the militia, and governing those that may be employed in the service of the United States; however, it is reserved to the States to appoint the officers and train the militia according to the discipline prescribed by Congress
  • Congress has exclusive legislative power in all cases over the district that will become the seat of government (Washington DC), and authority over all places purchased by the Federal government for forts, magazines, dockyards, and other needful buildings with the consent of the legislature of the state from which the property is purchased.
  • To make all necessary and proper laws for carrying into execution the preceding powers
  • Declare the punishment for treason
  • Regulate through law how the States will respect each other’s laws
  • Admit new states to the Union
  • Has the last say on whether States or parts of States may combine to form larger States
  • Guarantee a Republican form of government for each new State admitted.
  • Propose Constitutional Amendments on the 2/3 approval of each House
  • Revise and control all State laws regarding duties and imposts on imports and exports
  • Enforce prohibition of slavery with legislation
  • Enforce the Equal Protection Clauses of the 14th Amendment with legislation
  • Enforce the right to vote with legislation (15th, 19th, 24th, 26th Amendments)

 

Congressional Restrictions:

 

  • The importation of slaves will only be allowed until the year 1808, but until that time, a duty of $10 per person imported may be imposed by Congress (As of the year 1808, Congress outlawed the practice of importing slaves)
  • The writ of habeas corpus cannot be suspended except in times of rebellion or invasion where the public safety may require it
  • No bill of attainder or ex post facto law can be passed
  • No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration contained within the Constitution directs
  • No tax or duty can be imposed on items exported from any state
  • No preference of one state over another can be established by regulation of commerce or revenue, and vessels bound to or from one state will not have to enter, clear or pay duties in another.
  • Money can’t be taken from the Treasury, except to pay for appropriations prescribed by law, and an accounting of all receipts and expenditures will be published
  • The United States will not bestow any Titles of Nobility, and anyone serving in an Office of Profit or Trust will accept gifts, pay, office or Title from any foreign power or dignitary without the consent of Congress
  • Make no law respecting an establishment of religion or prohibiting the free exercise thereof
  • Make no law abridging the freedom of speech
  • Make no law abridging the freedom of the press
  • Make no law abridging the right of the people peaceably to assemble
  • Make no law abridging the right of the people to petition the Government for a redress of grievances
  • Infringe on the right of the people to keep and bear arms
  • Quartering soldiers in someone’s house without the owner’s consent in a time of peace or war
  • Private property be taken for public use, without just compensation
  • Any rights not enumerated in the Constitution are not to be construed as non-existent
  • Cannot abridge or deny the right to vote based on race, color, sex, or previous condition of servitude
  • Cannot abridge or deny the right to vote because of the failure to pay a poll tax or any other tax
  • Cannot abridge or deny the right to vote based on age, as long as that age is 18 or older

Presidential Powers:

 

  • Commander in Chief of the Army and Navy of the United States, and the State Militias when called into the service of the United States.
  • May require the opinions, in writing, from the principal officers of each executive department on any subject relating to the duties of their respective offices
  • Grant reprieves and pardons for offenses against the United States, except in cases of Impeachment.
  • Make treaties, with the advice and consent of the Senate.
  • Nominate and appoint ambassadors, judges of the Supreme Court, public ministers and consuls, and all other officers of the United States where the appointments are not otherwise provided for in the Constitution, having been established by law.
  • Fill up all vacancies by granting commissions which will expire at the end of the next Senate session, provided that these vacancies happen DURING the recess of the Senate.
  • From time to time, he will fill in the Congress to the State of the Union, done on television now, and recommend to them measures he may consider necessary and expedient.
  • He may convene one or both Houses on extraordinary occasions, and if they disagree with each other, he can adjourn them until such time as he sees fit, with respect to the time of adjournment.
  • He will receive ambassadors and public ministers
  • Make sure laws are faithfully executed. (It could be argued that failure to do so, such as picking and choosing what laws are and are not enforced could be a High Crime or Misdemeanor, thus an impeachable offense)
  • Commission all officers of the United States.

Presidential Restrictions:

 

  • Can only be elected for no more than two terms
  • Can only be elected for a single term if that person was a successor to a President who died or became incapacitated, and served more than two years of the previous President’s term

 

Judicial Power & Authority:

 

  • All cases in law and equity that will arise under the Constitution, laws of the United States and treaties made, or that will be made.
  • All cases affecting ambassadors, other public ministers and consuls
  • All cases of admiralty and maritime jurisdiction
  • Controversies to which the United States shall be a party
  • Controversies between two or more States
  • Between a State and citizens of another State (Amended by the Eleventh Amendment)
  • Between citizens of different States
  • Between citizens of the same State claiming lands under grants of different States
  • Between a State, or the citizens thereof, and foreign States, citizens or subjects
  • The Chief Justice of the Supreme Court will preside in hearings of Impeachment involving the President or Vice President.
  • The Supreme Court has original jurisdiction in cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State is party. This means that the Supreme Court can be the first court to hear cases involving these parties.
  • In all other cases, the Supreme Court has appellate jurisdiction, in both law and fact with such exceptions and under regulations as Congress makes. This means it that another court has to hear and rule on a case before it can hear it, but Congress can make laws that say that there are certain types of cases the Supreme Court can’t hear.

Judicial Prohibitions:

 

  • Power [of the Federal Courts] does not extend  to any suit in law or equity, against a state by Citizens of another state, or by Citizens or Subjects of any Foreign State (per the 11th Amendment)
  • No unreasonable searches or seizures of persons, homes, papers or effects without probable cause and a warrant
  • Cannot make a person answer for a capital or infamous crime unless brought before a judge or Grand Jury, except in cases during wartime or public danger
  • Cannot try a person twice for the same crime
  • Cannot force anyone to testify against themselves
  • Cannot deprive a citizen of life, liberty, or property, without due process of law
  • Must give the accused their right to a speedy and public trial by an impartial jury of the state and district where the crime was committed, which shall have been properly determined by law
  • The accused must be informed of the nature and cause of the accusation
  • The accused has the right to be confronted by the witnesses against them
  • The accused has the right to obtain witnesses in his/her favor
  • The accused has a right to an attorney for his/her defense
  • When a suit exceeds $20, the right of a trial by jury is maintained
  • No fact tried by a jury can be reexamined by another court of the United States, but by the rules of Common Law (in other words, a trial by jury puts the people as a check on the government)
  • No excessive bail
  • No excessive fines
  • No cruel or unusual punishments may be handed out

State Prohibitions:

 

  • Entering into any treaty, alliance or confederation
  • Granting letters of Marque and reprisal
  • Coining money
  • Emitting bills of credit
  • Make or using anything other than gold or silver coin as tender to pay debts (this is kind of outdated since we don’t use that kind of coin anymore)
  • Passing any bill of attainder or ex post facto law
  • Passing laws impairing the obligation of contracts
  • Granting any title of nobility
  • Laying imposts or duties on imports or exports, except where it is necessary for executing inspection laws, without the consent of Congress (the net produce of any such duties and imposts on imports or exports from any State will go into the US Treasury for use by Congress)
  • Laying any duty of tonnage without the consent of Congress
  • Keeping troops or ships of war in time of peace without the consent of Congress
  • Entering into any agreement or compact with another state or foreign power without the consent of Congress
  • Engaging in war unless it is actually invaded, or is in such imminent danger that it cannot delay without the consent of Congress
  • Slavery is not allowed, except in instances where someone has been convicted of a crime.
  • No laws infringing on the privileges and immunities of citizens
  • Cannot deprive citizens of life, liberty or property without due process
  • Cannot deny anyone in the state’s jurisdiction equal protection
  • Cannot abridge or deny the right to vote based on race, color, sex, or previous condition of servitude, or the failure to pay a poll tax, or any other tax
  • Cannot abridge or deny the right to vote based on age, as long as that age is 18 or older

 

That’s the list. It is a pretty expansive list. Anything that is on this list, the Federal government is allowed to either do or not do, depending on what section you refer to.  There is also a list of things the States are not allowed to do. Anything that does not fall under those two categories are reserved to the states, or to the people.

This means that if North Carolina wants to establish a state religion, they are allowed to do so, as only Congress is prohibited from doing so.

This means that the Supreme Court applying the US Constitution to the states is incorrect, and ignoring the Tenth Amendment in favor of implied powers is also incorrect. The whole point and passage of the amendment was to limit the Federal government and give the states more latitude in determining their own direction. It is not a truism, nor is it a closing statement. 

It was put there for a reason, whether the Supreme Court wants to recognize this reason or not.

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