A Review of Federalism: The significance of James Madison’s Report of 1800 in Transforming the 10th Amendment into the Predominant Provision Recognized by the Courts in Protecting Federalism
by Diane Rufino, December 8, 2013
** This article is taken almost exclusively from a 2005 paper by Professor Kurt Lash, Univ. of Illinois School of Law), published in the Loyola School of Law Report
In a speech opposing the chartering of a national bank in 1791, James Madison argued that only an unduly broad interpretation of federal power would allow Congress to create the Bank of the United States. He would have to remind those in power, which were the Federalists, of the great lengths they went through to create a Constitution of limited powers and to satisfy the States that they would not be giving up any sovereign power that they did not agree to. Indeed, in their efforts to secure votes in favor of the Constitution, Federalists had assured the State Ratifying Conventions that the Constitution would not be construed in such an expansive manner, and the ratifying states themselves had issued declarations and proposed amendments which established their understanding that the Constitution would not be so construed. The adoption of the pending Ninth and Tenth Amendments would make this assumed limited construction of federal power an express constitutional mandate. In that speech, Madison argued:
“The explanations in the State Ratifying Conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. (At this point, he read several passages from the debates of the Pennsylvania, Virginia and North Carolina Ratifying Conventions), showing the grounds on which the Constitution had been vindicated by its principal advocates against a dangerous latitude of its powers, charged on it by its opponents.)
The explanatory declarations and amendments accompanying the ratifications of the several states formed a striking evidence wearing the same complexion.
And these explanatory (and restrictive) amendments, proposed by Congress itself, should be good authority along with the debates in the State Conventions; all these renunciations of power proceeded on a rule of construction excluding the latitude (the scope) now contended for. These explanations are the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. (He then read several of the articles proposed, remarking particularly on the 11th and 12th, which would eventually become our 9th and 10th amendments). The eleventh amendment was intended to guard against a latitude of interpretation while the twelfth would excluding every source of power not within the Constitution itself.
With all this evidence of the sense in which the Constitution was understood and adopted, the bill should not pass. If the bill should pass, then it will be said that the adoption of the Constitution was brought about by one set of arguments and but it is administered under another set and this will give the People cause for concern.
If the power were in the Constitution, Congress could exercise it, but it is not and therefore the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation that levels all the barriers which limit the powers of the general government and protect those of the state governments.
In conclusion, it appears on the whole, that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristic of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the public; was condemned by the apparent intention of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and I hope it will receive its final condemnation, by the vote of this house.”
A few months after Madison gave this speech, Virginia voted in favor of the last 10 of the 12 proposed amendments and the Bill of Rights became part of the Constitution. This Bill, like the Constitution itself, begins with a preamble:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institutions.
As suggested by the Preamble, some amendments are declaratory clauses while others are restrictive clauses.
A restrictive modifying clause is an adjective clause that is essential to the meaning of a sentence because it limits the thing it refers to. A declaratory clause, on the other hand, merely re-states or re-emphasizes a particular principle. With that in mind, the Ninth Amendment acts as a restrictive clause while the Tenth stands as a declaration of principle. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment reads: “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.” Specifically, as Madison wrote and as he articulated in his speech opposing the chartering of a National Bank, the Ninth Amendment was submitted by the States to “guard against a latitude of construction,” while the Tenth would “exclude every power not within the Constitution itself.” As a restrictive clause, the Ninth preserves the principle enshrined in the Tenth. Without such a rule preventing “misconstruction,” of the Constitution, the declaratory Tenth Amendment risks becoming an empty promise. Together, however, the two amendments prevent the “misconstruction or abuse” of federal power. This was the express intent of the States in adopting the Constitution. Nothing could be clearer. And again, if this message wasn’t clear, the preamble to the Bill of Rights provided a bold, unambiguous, statement of the like.
The proper construction of federal power soon became an issue during the debate over the first Bank of the United States. In his opinion opposing the creation of the Bank, Thomas Jefferson argued that the “latitude of construction” adopted by the Bank’s proponents would destroy the principle of enumerated powers declared in the Tenth Amendment. “I consider the foundation of the Constitution as laid on this ground: that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”
Echoing Jefferson’s concerns, Attorney General Edmund Randolph concluded: “A similar construction on every specified federal power, will stretch the arm of Congress into the whole circle of state legislation. . . . Let it be propounded as an eternal question to those who build new powers on this clause, whether the latitude of construction which they arrogate will not terminate in an unlimited power in Congress?”
Both Jefferson and Randolph read the Tenth Amendment as confirming the establishment of a federal government of enumerated powers, with all nondelegated powers reserved to the states. Unduly broad constructions of enumerated federal power threatened to undermine this arrangement by creating, in essence, a government of unlimited power. Accordingly, Randolph and Jefferson advocated a rule of strict construction in order to preserve the principle announced by the Tenth Amendment. The rule preserved the principle.
Madison, of course, read the Ninth Amendment to express just such a rule, and early constitutional commentators agreed. In the very first Supreme Court opinion discussing the Ninth Amendment, Justice Joseph Story followed the Madisonian reading of the Ninth and used it to support a limited construction of federal power. In the 1820 case Houston v. Moore, Justice Story wrote that federal power to discipline the militia should not be read as exclusive of the concurrent power of individual states to establish their own rules of militia discipline, so long as those rules did not conflict with any federal statute. Story declared that, “In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning.”
Madison and Story were not alone in their reading of the Ninth as a federalist rule of interpretation. In his 1803 View of the Constitution, St. George Tucker likewise presented the Ninth Amendment as supporting a federalist rule of strict construction of federal power, as did constitutional commentator John Taylor. [Tucker wrote: “As a federal compact, it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question (citing the Tenth Amendment). As a social compact, it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government (citing the Ninth and Tenth Amendments).” John Taylor wrote, with respect to the Ninth and Tenth Amendments: “The precision of these expressions is happily contrived to defeat a construction, by which the origin of the union, or the sovereignty of the states, could be rendered at all doubtful.”]
Unlike Madison, Jefferson and Randolph, who believed that preserving the Tenth required the addition of a rule of construction, St. George Tucker believed that the Tenth Amendment itself expressed a rule of strict construction. According to Tucker, under the Tenth Amendment, the Constitution “is to be construed strictly, in all cases where the antecedent rights of state may be drawn in question.” This reading of the Tenth Amendment seems somewhat awkward. The text of the Tenth simply declares that Congress is granted only those powers enumerated in the Constitution. The text says nothing about how broadly those delegated powers are to be construed. Nevertheless, after 1800 and for the next one hundred and fifty years, courts and commentators cited both the Ninth and Tenth Amendments as expressing rules of strict construction of federal power.
This fact may surprise readers used to reading the Ninth and Tenth Amendments in opposition to one another or in reading them as having no real force of constitutional construction. Since Griswold v. Connecticut, the Court has often read the Ninth Amendment as support for its judicial invalidation of state laws, while the Tenth is most commonly associated with “states’ rights.” Historically, however, the two amendments were read in pari materia, meaning “acting on the same matter.” They both represented a limitation on the power of the federal government to interfere with the states. As late as 1948, the Supreme Court continued to apply both amendments as twin guardians of federalism. In Bute v. Illinois, the Supreme Court considered whether allowing a defendant in a non-capital criminal prosecution to represent himself, without inquiring into whether he desired or could afford an attorney, violated his rights under the Fourteenth Amendment. Because the Sixth Amendment required such an inquiry in federal court, the issue was whether this rule was incorporated against the states. In a 5-4 decision, Justice Harold Burton rejected the claim and provided an extended analysis of the Ninth and Tenth Amendments and their roles in interpreting the scope of the Fourteenth Amendment’s Due Process Clause. According to Justice Burton:
“One of the major contributions to the science of government that was made by the Constitution of the United States was its division of powers between the states and the Federal Government. The compromise between state rights and those of a central government was fully considered in securing the ratification of the Constitution in 1787 and 1788. It was emphasized in the “Bill of Rights,” ratified in 1791. In the ten Amendments constituting such Bill, additional restrictions were placed upon the Federal Government and particularly upon procedure in the federal courts. None were placed upon the states. On the contrary, the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments. This point of view is material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states, including Illinois. In our opinion this limitation is descriptive of a broad regulatory power over each state and not of a major transfer by the states to the United States of the primary and pre-existing power of the states over court procedures in state criminal cases.”
In Bute, Justice Burton linked the Ninth and Tenth Amendments to the need to preserve “Home Rule,” or, as earlier courts had phrased it, the right of a state “to determine for itself its own political machinery and its own domestic policies.” Preserving that right required a rule of construction. The Court in Bute applied such a rule, noting that the principles underlying the Ninth and Tenth Amendments are “material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states.”
In limiting the scope of the Fourteenth Amendment, the Court’s decision in Bute echoes similar reasoning in the 2000 United States v. Morrison decision, which narrowly interpreted the reach of Congress’s Section 5 powers under the Fourteenth Amendment in order to preserve state autonomy. Specifically, the Court cited the Tenth Amendment in support of its limited reading of federal power. By the time the Court decided Morrison, however, the Ninth Amendment had already disappeared from the judicial debate (and perhaps civil debate) on federal powers. In the majority decision authored by Chief Justice William Rehnquist, it was the Tenth Amendment alone that provided the basis for the Court’s rule of strict construction.
This disappearance of the Ninth presents us with a mystery and should give us cause for concern. Given that it is the Ninth, not the Tenth, which literally expresses a rule of construction, how did the Tenth Amendment come to share an equal role with the Ninth as a rule of limited construction of federal power?
More directly, how did the Tenth come to replace the Ninth Amendment as a limiting rule of construction? Madison’s public description of the Ninth and Tenth Amendments compounds this mystery. As Madison drafted both amendments, participated in the Congressional debates, and is considered the “Father of the Constitution, one would think Madison’s description of the Ninth as the relevant rule of construction would carry particular weight.
Ironically, it appears that Madison himself may have played a key, if unintentional, role in refocusing attention away from the Ninth and onto the Tenth Amendment as the textual basis for a rule of strict construction. In one of the most influential documents Madison ever produced, The Report on the Alien and Sedition Acts, (also known as Madison’s “Report of 1800”), Madison presented the Tenth Amendment as the central constitutional text for constraining the interpretation of federal power. Although Madison’s reliance on the Tenth Amendment in his Report corresponds to his interpretation of the Ninth and Tenth Amendments in his speech on the Bank of the United States, his “Report of 1800” took on a life of its own – as would the Tenth Amendment.
The Tenth Amendment would undergo this transformation in light of the passage of the Alien and Sedition Acts. This transformation would also serve to remind states of their obligation when faced with unconstitutional federal legislation. (The terms “Nullification” and “Interposition” would be coined at this time to define that obligation).
In the aftermath of the so-called XYZ Affair, in which French officials demanded bribes from an American peace delegation, and in the midst of heightening tensions with France, Congress enacted the Alien and Sedition Acts (which were actually a series of four statutes: the Alien Act, the Alien Enemies Act, the Naturalization Act, and the Sedition Act). The Sedition Act made the common law offense of seditious libel a federal crime, and inflaming an already politically charged atmosphere, Federalist judges enforced the Act against critics of the Adams Administration. Defenders of the Sedition Act came dangerously close to claiming that Congress had an unenumerated power to enforce the common law. The author of the “Report of the Minority on the Virginia Resolutions,” commonly believed to be John Marshall, argued that there was a “common or unwritten law which pervades all America, and which declares libels against government to be a punishable offence.” According to the Report, “to contend that there does not exist a power to punish writings coming within the description of this law, would be to assert the inability of our nation to preserve its own peace.”
As far as seditious libel and free speech were concerned, according to John Marshall, the Federalists, and even President John Adams himself, the freedom guaranteed by the First Amendment did not extend to such “licentious” acts as libeling the government.
By appearing to embrace the unwritten power to enforce the common law, the defenders of the Sedition Act seemed to reject the principle of enumerated federal power. Although the Ninth Amendment guarded against explansive constructions of delegated powers, it was the Tenth Amendment which declared that all non-enumerated powers are reserved to the States. Accordingly, James Madison and Thomas Jefferson raised the hue and cry that Congress had transgressed the boundaries of federal power established by the Tenth Amendment. They communicated aggressively during this time and contemplated what the proper response would be when the federal government exceeds its constitutional limitations and imposes a palpable violation on the people. In his Kentucky Resolutions of 1798 (Nov. 10, 1798), Thomas Jefferson wrote:
“That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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”; and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states or to the people.”
In his Virginia Resolutions of 1798, Madison called on the states to join with Virginia and Kentucky in declaring, “That the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each, for cooperating with this state, in maintaining unimpaired the authorities, rights, and liberties, reserved to the states respectively, or to the people.” He would go on to explain that the proper measure would be Interposition, which is the right of the states to “interpose” – or intervene – between the federal government and the people of the state to protect their rights and liberties and preserve the proper balance of government.
“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
A year later, Thomas Jefferson authored another set of resolutions so that Kentucky could re-affirm its position. In the Kentucky Resolutions of 1799, Jefferson wrote:
“RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said Alien and Sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal…”
Madison defended the positions taken in the Virginia Resolutions in his Report on the Alien and Sedition Acts (aka, “Madison’s Report of 1800”) In his Report, Madison further explained that Congress’s attempt to exercise unenumerated common law powers violated the constitutional principle that “powers not given to the government, were withheld from it,” and that “if any doubt could have existed on this subject, under the original text of the Constitution, it is removed as far as words could remove it, by the 12th amendment, now a part of the Constitution (as the Tenth Amendment), which expressly declares, “that 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.”
Ultimately, the Democratic-Republican Party of Thomas Jefferson and James Madison defeated the Federalists in the election of 1800, due in no small part to popular reaction against the Alien and Sedition Acts. Madison’s celebrated “Report of 1800,” which Spencer Roane referred to as the Magna Charta of the Republicans, became a foundational document for 19th century advocates of states’ rights. The Report was so influential that Madison’s Tenth Amendment-based argument against the Acts had the effect of eclipsing the Ninth as the core constitutional provision requiring the strict construction of federal power.
It is difficult to overstate the influence of Madison’s Report of 1800 among states’ rights theorists in the decades between Jefferson’s election and the Civil War. St. George Tucker referred to Madison’s Report numerous times in his 1803 constitutional treatise, A View of the Constitution of the United States, repeating in particular Madison’s claim that Congress had exceeded the bounds established by the Tenth Amendment. When Jonathan Elliot compiled the materials for his great compilation (1836), The Debates in the Several State Conventions on the Adoption of the Federal Constitution, among the few post-adoption sources that he added was “The Report on the Virginia Resolutions, by Mr. Madison.” It was not unusual for nineteenth century courts to refer to what was known as Madison’s “Celebrated Report” in discussing the scope of federal law.
In fact, courts in later decades viewed the struggle over the Alien and Sedition Acts and the election of 1800 as a referendum on the proper interpretation of the Constitution. Writing in the 1860’s, Judge Bell of the Texas Supreme Court described the event as a titanic struggle over an unduly expansive interpretation of federal power:
“I take it for granted that we will not . . . go back to that latitude of construction, and to the reasoning by which the federalists of 1798 claimed for the congress of the United States the power to exercise a censorship over the press, as a means necessary and proper to carry into effect the power to suppress insurrections. We have been accustomed to read, with the interest that attaches to the drama, the history of the great struggle which elevated Mr. Jefferson to the presidency. It is the first conspicuous landmark in the history of the government of the United States under the constitution. It has always been claimed that the republican party performed a patriotic service in resisting the tendency to a rapid consolidation of powers in the general government, and that their illustrious leader was the faithful sentinel who saw the danger to the constitution, and met it with a noble devotion to the cause of liberty. . . . and in every step which has been made towards a strict construction of the constitution, the people have hailed the triumph of sound principles and felt renewed confidence in the stability of republican institutions.”
States’ rights advocates in particular relied on Madison’s Report of 1800 as a critical guide to state autonomy and proper interpretation of the Constitution. Virginia Chief Judge Spencer Roane cited Madison’s Report in support of his contention that the Supreme Court had no authority to reverse the decision of Virginia’s highest court. When Chief Justice John Marshall upheld the Second Bank of the United States in McCulloch v. Maryland (1819), Roane published a series of essays critical of the McCulloch decision in the Richmond Enquirer under the pseudonym “Hampden.” Repeatedly referring to the odious precedent of the Alien and Sedition Acts and Madison’s “celebrated Report” of 1800, Roane argued that Congress and the Supreme Court had once again invaded the reserved powers of the States:
“It has been our happiness to believe, that in the partition of powers between the general and state governments, the former possessed only such as were expressly granted . . . while all residuary powers were retained by the latter. . . . This, it is believed, was done by the constitution, in its original shape; but such were the natural fears and jealousies of our citizens, in relation to this all important subject, that it was deemed necessary to quiet those fears, by the 10th amendment to the Constitution.”
Tying the hated Sedition Acts to Marshall’s opinion in McCulloch, Roane argued that “the latitude of construction now favored by the Supreme Court, is precisely that which brought the memorable Sedition Act into our code.” In a famous paragraph, Roane declared, “that man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power, and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.”
Consider this question: Has the Supreme Court’s application of the Tenth Amendment rendered it particularly vulnerable to criticism? In 1941, in a case defining the boundaries of the federal Commerce Clause, United States v. Darby, the Supreme Court declared that it would uphold federal regulation of purely intrastate commerce if Congress reasonably concluded that the activity in question affected interstate commerce. In doing so, the Court gave the federal government great latitude in defining the scope of its powers. The Court rejected the idea that the Tenth Amendment required strict construction of federal power. According to Justice Harlan Stone, who authored the majority opinion:
“Our conclusion is unaffected by the Tenth Amendment . . . . 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. From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”
Indeed, even at the moment of its adoption, Madison acknowledged that the Tenth Amendment was unnecessary and the Clause was criticized in the State Ratification Conventions as having no “real effect.” As one can imagine, this disclosure is quite popular with those most interested in an energetic and concentrated federal government and those interested in restricting federal power.
Despite these criticisms, however, current federal jurisprudence (current rule of constitutional construction), holds that the Tenth Amendment has both a textual basis and historic application. The accidents of history that led to the rise of the Tenth Amendment and the fall of the Ninth have resulted in the invocation of the right principles in the wrong context. Originally, the Ninth and Tenth Amendments were meant to work together: The Tenth declaring the principle of reserved non-enumerated power, and the Ninth ensuring that the powers reserved to the states would not become a null set through the overly broad construction of enumerated federal authority. Both principles were thought necessary in order to guarantee the people’s retained right to local self-government. In other words, without the Ninth Amendment, the Tenth Amendment does indeed become a mere truism.
Understanding the proper source of this rule of construction and how it became associated with the Tenth Amendment vindicates the jurisprudence of the Tenth even as it refocuses attention back to the Ninth Amendment. Absent this refocusing, the Tenth Amendment and its attendant federalist jurisprudence remains vulnerable to criticism and, ultimately, reversal.
In other words, understanding the history of the Ninth and Tenth Amendments is necessary, if only to save the Tenth Amendment from itself. A renewed appreciation of the textual (contextual) roots of federalism seems particularly relevant as both sides of the political spectrum now have come to embrace the value of state autonomy and as the doctrine of Nullification becomes more popular.
Refocusing the rule of construction back to the Ninth Amendment does not reduce the Tenth to a mere truism. The Tenth Amendment not only denies unenumerated powers to the federal government, it also forbids placing any unenumerated restrictions on the states. According to the text, “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.” Just as the first portion of the Tenth Amendment limits the powers of the federal government to no more than those enumerated in the text, the second portion limits restrictions on the states to no more than those enumerated in the text; all other powers are reserved to the states or to the people.
The Tenth Amendment, just as the Ninth Amendment, establishes “further declaratory and restrictive clauses, in order to prevent misconstruction or abuse of its (federal government) powers.” (Preamble to the Bill of Rights). Not only is the federal government further limited in its powers under Constitution, but it is expressly limited from stepping into the sphere of reserved rights held by the People and the States.
Restoring the Tenth Amendment to its proper place in the arena of constitutional interpretation does nothing to endanger federalism. Rather, it places federalism – as well as liberty, and the guarantees in the Declaration of Independence – on firmer ground.
The key, clearly, to restoring the proper balance of government power and restoring power to the parties from which it rightfully originated and to which it rightfully belongs is to return to the critical jurisprudence of original intent and strict construction. Unfortunately, big government proponents and liberal law school professors like to demonize judges who adopt this approach and indoctrinate both law school students and low-information and uneducated Americans. They like to declare that the US Constitution is outdated and incapable of addressing the issues of today’s America and in direct contradiction and willful disregard of the men who wrote and defined the document and the duly-assembled institutions that debated and ratified it, they classify it incorrectly as “a living breathing document.” The longer we allow the indoctrination to take place, the more firmly the notion will become entrenched with a people who no longer knows what their rights are or how, procedurally and ideologically, they are secured and protected.
The task we face is EDUCATION, EDUCATION, and more EDUCATION. We need to take on the liberals and progressives at every turn and debate them on the merits, with the ultimate goal being the preservation of a government system so properly divided among sovereigns and so richly pitted with reliable checks and balances that the rights and liberties of mankind, so forcibly asserted and fiercely defended throughout the ages, will be secured for the ages and will not begin that dark descent into oppression that robs them of that divine spark and that exercise in freedom that moves civilization forward and makes us a more successful and exemplary nation.
Reference: The article above is almost exclusively comprised of Professor Kurt Lash’s 2005 Loyola Law School article on James Madison’s Report of 1800:
Kurt T. Lash, “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment,” Loyola School of Law, Legal Studies Paper No. 2005-30, November 2005. [Kurt T. Lash is a professor at the University of Illinois School of Law]
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A Review of Federalism: The Significance of James Madison’s Report of 1800
A Review of Federalism: The significance of James Madison’s Report of 1800 in Transforming the 10th Amendment into the Predominant Provision Recognized by the Courts in Protecting Federalism
by Diane Rufino, December 8, 2013
** This article is taken almost exclusively from a 2005 paper by Professor Kurt Lash, Univ. of Illinois School of Law), published in the Loyola School of Law Report
In a speech opposing the chartering of a national bank in 1791, James Madison argued that only an unduly broad interpretation of federal power would allow Congress to create the Bank of the United States. He would have to remind those in power, which were the Federalists, of the great lengths they went through to create a Constitution of limited powers and to satisfy the States that they would not be giving up any sovereign power that they did not agree to. Indeed, in their efforts to secure votes in favor of the Constitution, Federalists had assured the State Ratifying Conventions that the Constitution would not be construed in such an expansive manner, and the ratifying states themselves had issued declarations and proposed amendments which established their understanding that the Constitution would not be so construed. The adoption of the pending Ninth and Tenth Amendments would make this assumed limited construction of federal power an express constitutional mandate. In that speech, Madison argued:
“The explanations in the State Ratifying Conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. (At this point, he read several passages from the debates of the Pennsylvania, Virginia and North Carolina Ratifying Conventions), showing the grounds on which the Constitution had been vindicated by its principal advocates against a dangerous latitude of its powers, charged on it by its opponents.)
The explanatory declarations and amendments accompanying the ratifications of the several states formed a striking evidence wearing the same complexion.
And these explanatory (and restrictive) amendments, proposed by Congress itself, should be good authority along with the debates in the State Conventions; all these renunciations of power proceeded on a rule of construction excluding the latitude (the scope) now contended for. These explanations are the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. (He then read several of the articles proposed, remarking particularly on the 11th and 12th, which would eventually become our 9th and 10th amendments). The eleventh amendment was intended to guard against a latitude of interpretation while the twelfth would excluding every source of power not within the Constitution itself.
With all this evidence of the sense in which the Constitution was understood and adopted, the bill should not pass. If the bill should pass, then it will be said that the adoption of the Constitution was brought about by one set of arguments and but it is administered under another set and this will give the People cause for concern.
If the power were in the Constitution, Congress could exercise it, but it is not and therefore the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation that levels all the barriers which limit the powers of the general government and protect those of the state governments.
In conclusion, it appears on the whole, that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristic of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the public; was condemned by the apparent intention of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and I hope it will receive its final condemnation, by the vote of this house.”
A few months after Madison gave this speech, Virginia voted in favor of the last 10 of the 12 proposed amendments and the Bill of Rights became part of the Constitution. This Bill, like the Constitution itself, begins with a preamble:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institutions.
As suggested by the Preamble, some amendments are declaratory clauses while others are restrictive clauses.
A restrictive modifying clause is an adjective clause that is essential to the meaning of a sentence because it limits the thing it refers to. A declaratory clause, on the other hand, merely re-states or re-emphasizes a particular principle. With that in mind, the Ninth Amendment acts as a restrictive clause while the Tenth stands as a declaration of principle. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment reads: “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.” Specifically, as Madison wrote and as he articulated in his speech opposing the chartering of a National Bank, the Ninth Amendment was submitted by the States to “guard against a latitude of construction,” while the Tenth would “exclude every power not within the Constitution itself.” As a restrictive clause, the Ninth preserves the principle enshrined in the Tenth. Without such a rule preventing “misconstruction,” of the Constitution, the declaratory Tenth Amendment risks becoming an empty promise. Together, however, the two amendments prevent the “misconstruction or abuse” of federal power. This was the express intent of the States in adopting the Constitution. Nothing could be clearer. And again, if this message wasn’t clear, the preamble to the Bill of Rights provided a bold, unambiguous, statement of the like.
The proper construction of federal power soon became an issue during the debate over the first Bank of the United States. In his opinion opposing the creation of the Bank, Thomas Jefferson argued that the “latitude of construction” adopted by the Bank’s proponents would destroy the principle of enumerated powers declared in the Tenth Amendment. “I consider the foundation of the Constitution as laid on this ground: that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”
Echoing Jefferson’s concerns, Attorney General Edmund Randolph concluded: “A similar construction on every specified federal power, will stretch the arm of Congress into the whole circle of state legislation. . . . Let it be propounded as an eternal question to those who build new powers on this clause, whether the latitude of construction which they arrogate will not terminate in an unlimited power in Congress?”
Both Jefferson and Randolph read the Tenth Amendment as confirming the establishment of a federal government of enumerated powers, with all nondelegated powers reserved to the states. Unduly broad constructions of enumerated federal power threatened to undermine this arrangement by creating, in essence, a government of unlimited power. Accordingly, Randolph and Jefferson advocated a rule of strict construction in order to preserve the principle announced by the Tenth Amendment. The rule preserved the principle.
Madison, of course, read the Ninth Amendment to express just such a rule, and early constitutional commentators agreed. In the very first Supreme Court opinion discussing the Ninth Amendment, Justice Joseph Story followed the Madisonian reading of the Ninth and used it to support a limited construction of federal power. In the 1820 case Houston v. Moore, Justice Story wrote that federal power to discipline the militia should not be read as exclusive of the concurrent power of individual states to establish their own rules of militia discipline, so long as those rules did not conflict with any federal statute. Story declared that, “In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning.”
Madison and Story were not alone in their reading of the Ninth as a federalist rule of interpretation. In his 1803 View of the Constitution, St. George Tucker likewise presented the Ninth Amendment as supporting a federalist rule of strict construction of federal power, as did constitutional commentator John Taylor. [Tucker wrote: “As a federal compact, it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question (citing the Tenth Amendment). As a social compact, it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government (citing the Ninth and Tenth Amendments).” John Taylor wrote, with respect to the Ninth and Tenth Amendments: “The precision of these expressions is happily contrived to defeat a construction, by which the origin of the union, or the sovereignty of the states, could be rendered at all doubtful.”]
Unlike Madison, Jefferson and Randolph, who believed that preserving the Tenth required the addition of a rule of construction, St. George Tucker believed that the Tenth Amendment itself expressed a rule of strict construction. According to Tucker, under the Tenth Amendment, the Constitution “is to be construed strictly, in all cases where the antecedent rights of state may be drawn in question.” This reading of the Tenth Amendment seems somewhat awkward. The text of the Tenth simply declares that Congress is granted only those powers enumerated in the Constitution. The text says nothing about how broadly those delegated powers are to be construed. Nevertheless, after 1800 and for the next one hundred and fifty years, courts and commentators cited both the Ninth and Tenth Amendments as expressing rules of strict construction of federal power.
This fact may surprise readers used to reading the Ninth and Tenth Amendments in opposition to one another or in reading them as having no real force of constitutional construction. Since Griswold v. Connecticut, the Court has often read the Ninth Amendment as support for its judicial invalidation of state laws, while the Tenth is most commonly associated with “states’ rights.” Historically, however, the two amendments were read in pari materia, meaning “acting on the same matter.” They both represented a limitation on the power of the federal government to interfere with the states. As late as 1948, the Supreme Court continued to apply both amendments as twin guardians of federalism. In Bute v. Illinois, the Supreme Court considered whether allowing a defendant in a non-capital criminal prosecution to represent himself, without inquiring into whether he desired or could afford an attorney, violated his rights under the Fourteenth Amendment. Because the Sixth Amendment required such an inquiry in federal court, the issue was whether this rule was incorporated against the states. In a 5-4 decision, Justice Harold Burton rejected the claim and provided an extended analysis of the Ninth and Tenth Amendments and their roles in interpreting the scope of the Fourteenth Amendment’s Due Process Clause. According to Justice Burton:
“One of the major contributions to the science of government that was made by the Constitution of the United States was its division of powers between the states and the Federal Government. The compromise between state rights and those of a central government was fully considered in securing the ratification of the Constitution in 1787 and 1788. It was emphasized in the “Bill of Rights,” ratified in 1791. In the ten Amendments constituting such Bill, additional restrictions were placed upon the Federal Government and particularly upon procedure in the federal courts. None were placed upon the states. On the contrary, the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments. This point of view is material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states, including Illinois. In our opinion this limitation is descriptive of a broad regulatory power over each state and not of a major transfer by the states to the United States of the primary and pre-existing power of the states over court procedures in state criminal cases.”
In Bute, Justice Burton linked the Ninth and Tenth Amendments to the need to preserve “Home Rule,” or, as earlier courts had phrased it, the right of a state “to determine for itself its own political machinery and its own domestic policies.” Preserving that right required a rule of construction. The Court in Bute applied such a rule, noting that the principles underlying the Ninth and Tenth Amendments are “material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states.”
In limiting the scope of the Fourteenth Amendment, the Court’s decision in Bute echoes similar reasoning in the 2000 United States v. Morrison decision, which narrowly interpreted the reach of Congress’s Section 5 powers under the Fourteenth Amendment in order to preserve state autonomy. Specifically, the Court cited the Tenth Amendment in support of its limited reading of federal power. By the time the Court decided Morrison, however, the Ninth Amendment had already disappeared from the judicial debate (and perhaps civil debate) on federal powers. In the majority decision authored by Chief Justice William Rehnquist, it was the Tenth Amendment alone that provided the basis for the Court’s rule of strict construction.
This disappearance of the Ninth presents us with a mystery and should give us cause for concern. Given that it is the Ninth, not the Tenth, which literally expresses a rule of construction, how did the Tenth Amendment come to share an equal role with the Ninth as a rule of limited construction of federal power?
More directly, how did the Tenth come to replace the Ninth Amendment as a limiting rule of construction? Madison’s public description of the Ninth and Tenth Amendments compounds this mystery. As Madison drafted both amendments, participated in the Congressional debates, and is considered the “Father of the Constitution, one would think Madison’s description of the Ninth as the relevant rule of construction would carry particular weight.
Ironically, it appears that Madison himself may have played a key, if unintentional, role in refocusing attention away from the Ninth and onto the Tenth Amendment as the textual basis for a rule of strict construction. In one of the most influential documents Madison ever produced, The Report on the Alien and Sedition Acts, (also known as Madison’s “Report of 1800”), Madison presented the Tenth Amendment as the central constitutional text for constraining the interpretation of federal power. Although Madison’s reliance on the Tenth Amendment in his Report corresponds to his interpretation of the Ninth and Tenth Amendments in his speech on the Bank of the United States, his “Report of 1800” took on a life of its own – as would the Tenth Amendment.
The Tenth Amendment would undergo this transformation in light of the passage of the Alien and Sedition Acts. This transformation would also serve to remind states of their obligation when faced with unconstitutional federal legislation. (The terms “Nullification” and “Interposition” would be coined at this time to define that obligation).
In the aftermath of the so-called XYZ Affair, in which French officials demanded bribes from an American peace delegation, and in the midst of heightening tensions with France, Congress enacted the Alien and Sedition Acts (which were actually a series of four statutes: the Alien Act, the Alien Enemies Act, the Naturalization Act, and the Sedition Act). The Sedition Act made the common law offense of seditious libel a federal crime, and inflaming an already politically charged atmosphere, Federalist judges enforced the Act against critics of the Adams Administration. Defenders of the Sedition Act came dangerously close to claiming that Congress had an unenumerated power to enforce the common law. The author of the “Report of the Minority on the Virginia Resolutions,” commonly believed to be John Marshall, argued that there was a “common or unwritten law which pervades all America, and which declares libels against government to be a punishable offence.” According to the Report, “to contend that there does not exist a power to punish writings coming within the description of this law, would be to assert the inability of our nation to preserve its own peace.”
As far as seditious libel and free speech were concerned, according to John Marshall, the Federalists, and even President John Adams himself, the freedom guaranteed by the First Amendment did not extend to such “licentious” acts as libeling the government.
By appearing to embrace the unwritten power to enforce the common law, the defenders of the Sedition Act seemed to reject the principle of enumerated federal power. Although the Ninth Amendment guarded against explansive constructions of delegated powers, it was the Tenth Amendment which declared that all non-enumerated powers are reserved to the States. Accordingly, James Madison and Thomas Jefferson raised the hue and cry that Congress had transgressed the boundaries of federal power established by the Tenth Amendment. They communicated aggressively during this time and contemplated what the proper response would be when the federal government exceeds its constitutional limitations and imposes a palpable violation on the people. In his Kentucky Resolutions of 1798 (Nov. 10, 1798), Thomas Jefferson wrote:
“That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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”; and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states or to the people.”
In his Virginia Resolutions of 1798, Madison called on the states to join with Virginia and Kentucky in declaring, “That the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each, for cooperating with this state, in maintaining unimpaired the authorities, rights, and liberties, reserved to the states respectively, or to the people.” He would go on to explain that the proper measure would be Interposition, which is the right of the states to “interpose” – or intervene – between the federal government and the people of the state to protect their rights and liberties and preserve the proper balance of government.
“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
A year later, Thomas Jefferson authored another set of resolutions so that Kentucky could re-affirm its position. In the Kentucky Resolutions of 1799, Jefferson wrote:
“RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said Alien and Sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal…”
Madison defended the positions taken in the Virginia Resolutions in his Report on the Alien and Sedition Acts (aka, “Madison’s Report of 1800”) In his Report, Madison further explained that Congress’s attempt to exercise unenumerated common law powers violated the constitutional principle that “powers not given to the government, were withheld from it,” and that “if any doubt could have existed on this subject, under the original text of the Constitution, it is removed as far as words could remove it, by the 12th amendment, now a part of the Constitution (as the Tenth Amendment), which expressly declares, “that 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.”
Ultimately, the Democratic-Republican Party of Thomas Jefferson and James Madison defeated the Federalists in the election of 1800, due in no small part to popular reaction against the Alien and Sedition Acts. Madison’s celebrated “Report of 1800,” which Spencer Roane referred to as the Magna Charta of the Republicans, became a foundational document for 19th century advocates of states’ rights. The Report was so influential that Madison’s Tenth Amendment-based argument against the Acts had the effect of eclipsing the Ninth as the core constitutional provision requiring the strict construction of federal power.
It is difficult to overstate the influence of Madison’s Report of 1800 among states’ rights theorists in the decades between Jefferson’s election and the Civil War. St. George Tucker referred to Madison’s Report numerous times in his 1803 constitutional treatise, A View of the Constitution of the United States, repeating in particular Madison’s claim that Congress had exceeded the bounds established by the Tenth Amendment. When Jonathan Elliot compiled the materials for his great compilation (1836), The Debates in the Several State Conventions on the Adoption of the Federal Constitution, among the few post-adoption sources that he added was “The Report on the Virginia Resolutions, by Mr. Madison.” It was not unusual for nineteenth century courts to refer to what was known as Madison’s “Celebrated Report” in discussing the scope of federal law.
In fact, courts in later decades viewed the struggle over the Alien and Sedition Acts and the election of 1800 as a referendum on the proper interpretation of the Constitution. Writing in the 1860’s, Judge Bell of the Texas Supreme Court described the event as a titanic struggle over an unduly expansive interpretation of federal power:
“I take it for granted that we will not . . . go back to that latitude of construction, and to the reasoning by which the federalists of 1798 claimed for the congress of the United States the power to exercise a censorship over the press, as a means necessary and proper to carry into effect the power to suppress insurrections. We have been accustomed to read, with the interest that attaches to the drama, the history of the great struggle which elevated Mr. Jefferson to the presidency. It is the first conspicuous landmark in the history of the government of the United States under the constitution. It has always been claimed that the republican party performed a patriotic service in resisting the tendency to a rapid consolidation of powers in the general government, and that their illustrious leader was the faithful sentinel who saw the danger to the constitution, and met it with a noble devotion to the cause of liberty. . . . and in every step which has been made towards a strict construction of the constitution, the people have hailed the triumph of sound principles and felt renewed confidence in the stability of republican institutions.”
States’ rights advocates in particular relied on Madison’s Report of 1800 as a critical guide to state autonomy and proper interpretation of the Constitution. Virginia Chief Judge Spencer Roane cited Madison’s Report in support of his contention that the Supreme Court had no authority to reverse the decision of Virginia’s highest court. When Chief Justice John Marshall upheld the Second Bank of the United States in McCulloch v. Maryland (1819), Roane published a series of essays critical of the McCulloch decision in the Richmond Enquirer under the pseudonym “Hampden.” Repeatedly referring to the odious precedent of the Alien and Sedition Acts and Madison’s “celebrated Report” of 1800, Roane argued that Congress and the Supreme Court had once again invaded the reserved powers of the States:
“It has been our happiness to believe, that in the partition of powers between the general and state governments, the former possessed only such as were expressly granted . . . while all residuary powers were retained by the latter. . . . This, it is believed, was done by the constitution, in its original shape; but such were the natural fears and jealousies of our citizens, in relation to this all important subject, that it was deemed necessary to quiet those fears, by the 10th amendment to the Constitution.”
Tying the hated Sedition Acts to Marshall’s opinion in McCulloch, Roane argued that “the latitude of construction now favored by the Supreme Court, is precisely that which brought the memorable Sedition Act into our code.” In a famous paragraph, Roane declared, “that man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power, and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.”
Consider this question: Has the Supreme Court’s application of the Tenth Amendment rendered it particularly vulnerable to criticism? In 1941, in a case defining the boundaries of the federal Commerce Clause, United States v. Darby, the Supreme Court declared that it would uphold federal regulation of purely intrastate commerce if Congress reasonably concluded that the activity in question affected interstate commerce. In doing so, the Court gave the federal government great latitude in defining the scope of its powers. The Court rejected the idea that the Tenth Amendment required strict construction of federal power. According to Justice Harlan Stone, who authored the majority opinion:
“Our conclusion is unaffected by the Tenth Amendment . . . . 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. From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”
Indeed, even at the moment of its adoption, Madison acknowledged that the Tenth Amendment was unnecessary and the Clause was criticized in the State Ratification Conventions as having no “real effect.” As one can imagine, this disclosure is quite popular with those most interested in an energetic and concentrated federal government and those interested in restricting federal power.
Despite these criticisms, however, current federal jurisprudence (current rule of constitutional construction), holds that the Tenth Amendment has both a textual basis and historic application. The accidents of history that led to the rise of the Tenth Amendment and the fall of the Ninth have resulted in the invocation of the right principles in the wrong context. Originally, the Ninth and Tenth Amendments were meant to work together: The Tenth declaring the principle of reserved non-enumerated power, and the Ninth ensuring that the powers reserved to the states would not become a null set through the overly broad construction of enumerated federal authority. Both principles were thought necessary in order to guarantee the people’s retained right to local self-government. In other words, without the Ninth Amendment, the Tenth Amendment does indeed become a mere truism.
Understanding the proper source of this rule of construction and how it became associated with the Tenth Amendment vindicates the jurisprudence of the Tenth even as it refocuses attention back to the Ninth Amendment. Absent this refocusing, the Tenth Amendment and its attendant federalist jurisprudence remains vulnerable to criticism and, ultimately, reversal.
In other words, understanding the history of the Ninth and Tenth Amendments is necessary, if only to save the Tenth Amendment from itself. A renewed appreciation of the textual (contextual) roots of federalism seems particularly relevant as both sides of the political spectrum now have come to embrace the value of state autonomy and as the doctrine of Nullification becomes more popular.
Refocusing the rule of construction back to the Ninth Amendment does not reduce the Tenth to a mere truism. The Tenth Amendment not only denies unenumerated powers to the federal government, it also forbids placing any unenumerated restrictions on the states. According to the text, “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.” Just as the first portion of the Tenth Amendment limits the powers of the federal government to no more than those enumerated in the text, the second portion limits restrictions on the states to no more than those enumerated in the text; all other powers are reserved to the states or to the people.
The Tenth Amendment, just as the Ninth Amendment, establishes “further declaratory and restrictive clauses, in order to prevent misconstruction or abuse of its (federal government) powers.” (Preamble to the Bill of Rights). Not only is the federal government further limited in its powers under Constitution, but it is expressly limited from stepping into the sphere of reserved rights held by the People and the States.
Restoring the Tenth Amendment to its proper place in the arena of constitutional interpretation does nothing to endanger federalism. Rather, it places federalism – as well as liberty, and the guarantees in the Declaration of Independence – on firmer ground.
The key, clearly, to restoring the proper balance of government power and restoring power to the parties from which it rightfully originated and to which it rightfully belongs is to return to the critical jurisprudence of original intent and strict construction. Unfortunately, big government proponents and liberal law school professors like to demonize judges who adopt this approach and indoctrinate both law school students and low-information and uneducated Americans. They like to declare that the US Constitution is outdated and incapable of addressing the issues of today’s America and in direct contradiction and willful disregard of the men who wrote and defined the document and the duly-assembled institutions that debated and ratified it, they classify it incorrectly as “a living breathing document.” The longer we allow the indoctrination to take place, the more firmly the notion will become entrenched with a people who no longer knows what their rights are or how, procedurally and ideologically, they are secured and protected.
The task we face is EDUCATION, EDUCATION, and more EDUCATION. We need to take on the liberals and progressives at every turn and debate them on the merits, with the ultimate goal being the preservation of a government system so properly divided among sovereigns and so richly pitted with reliable checks and balances that the rights and liberties of mankind, so forcibly asserted and fiercely defended throughout the ages, will be secured for the ages and will not begin that dark descent into oppression that robs them of that divine spark and that exercise in freedom that moves civilization forward and makes us a more successful and exemplary nation.
Reference: The article above is almost exclusively comprised of Professor Kurt Lash’s 2005 Loyola Law School article on James Madison’s Report of 1800:
Kurt T. Lash, “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment,” Loyola School of Law, Legal Studies Paper No. 2005-30, November 2005. [Kurt T. Lash is a professor at the University of Illinois School of Law]
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About forloveofgodandcountry
I'm originally from New Jersey where I spent most of my life. I now live in North Carolina with my husband and 4 children. I'm an attorney