Constitution Class
Handout, 12/4/2014 Faith
Armory
Instructor: Douglas
V. Gibbs 41669
Winchester Rd.
Temecula,
CA
Lesson 19
Rights and State
Sovereignty
Amendment
IX: A Protection of Rights Not Enumerated
The Bill of Rights was
created to appease the Anti-Federalists,
but many of the Framers envisioned possible dangers in its creation. In fact, Alexander Hamilton in Federalist Paper #84 suggested that
there existed the possibility of misinterpretations that may place the rights
of the people in danger from an overpowering federal government. In
Federalist #84 Hamilton suggested that government may create exceptions to
powers not granted, and argue the power exists because it is not denied by the
Bill of Rights. In other words, because
the Constitution was designed to grant authorities, and those not listed are
not granted, the Bill of Rights
muddies the waters because those amendments tell the federal government what it
can’t do. Furthermore, many of the
delegates in the Federal Convention of 1787 argued that the Bill of Rights is
unnecessary, because prior to the creation of the Bill of Rights, the federal government
was not given the authorities by the first seven articles over any of the
issues listed in those first ten amendments in the first place.
Regardless, the
Anti-Federalists demanded the inclusion of the Bill of Rights in the
Constitution, or they would not ratify the document. Needing the support of the Anti-Federalists
in order for the Constitution to be made law, the Founding Fathers that were at
odds with the creation of the Bill of Rights compromised, and James Madison was
given the task to write out the Bill of Rights based on proposals received from
the several States.
Hundreds of proposed
amendments were offered by the States.
Only twelve were considered. Ten
were ratified by the States during that time period. Answering concerns of the Founding Fathers
that the federal government may interfere with rights not enumerated by the
Bill of Rights, the 9th Amendment was included as one of those ten.
The Founders expected the
people to protect their own rights through self-government. With freedom comes responsibility, therefore
the people, when it came to their rights, should be governed by their
conscience, not government. This concept
tasked the people, with their individual judgment, to be civil, and to not
encroach on one another’s freedoms. If
citizens were guilty of violating someone else’s rights, the civil court system
in each State would address the issue.
Local courts were controlled by juries, and left all issues regarding
rights at the local level.
The very notion of the federal
government putting itself into a position of encroaching on the rights of the
people was seen as tyrannical, and dangerous.
After all, how could a centralized, far removed, governmental power that
is unfamiliar with local customs and laws properly administer private rights
issues?
The problem presented by the
Bill of Rights, however, is that by listing specific rights that the government
shall not infringe upon, many of the founders believed that would open up the
opportunity for the federal government to “interpret” the Constitution to mean
that all other rights not listed are fair game.
Therefore, the wording of the 9th Amendment was carefully fashioned to
enable the reader to recognize its intent.
The
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.
In other words, the government cannot “deny or
disparage” any rights, even the ones not listed in the Bill of Rights, because
our rights are given to us by God. This
does not give the federal government the authority to guarantee our rights,
however. To allow a central government
to force lower governments to abide by the rights enumerated in the Bill of
Rights is to open the door for government to later dictate to the lower governments
other actions they would have to take regarding rights. Since rights, as the Declaration of
Independence reveals, are “self-evident,” as well as individual possessions,
the authority to resolve disputes regarding rights remains at the local level.
Terms:
Anti-Federalists -
Opposed to formation of a federal government, particularly by adoption of the
Constitution of the United States.
Bill of
Rights - The first ten amendments of the U.S. Constitution; a formal summary
of those rights and liberties considered essential to a people or group of
people.
Federal
Government - System of government in which power is distributed
between central authority and constituent territorial units.
Federalist
Papers - Series of essays written by John Jay, James Madison, and Alexander
Hamilton defending, and explaining the principles of, the Constitution in order
to encourage the New York Ratifying Convention to decide to ratify the
Constitution.
Questions
for Discussion:
1. Why were the
Anti-Federalists so worried about the creation of the federal government
through the Constitution?
2. Who gives us
our rights? Why is this significant?
3. What are the
dangers of enabling the federal government to “interpret” the Constitution?
Resources:
Alexander
Hamilton, Federalist Paper #84, Avalon Project, Yale
University: http://avalon.law.yale.edu/18th_century/fed84.asp
Joseph
Andrews, A Guide for Learning and
Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original
Texts Using Classical Learning Methods of the Founders; San
Marcos: The Center for Teaching the Constitution (2010).
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
Amendment
X: State Sovereignty
“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.”
The 10th Amendment was
designed to restrict federal powers from encroaching on State authorities. The article states that any powers not given
to the federal government by the Constitution, and any powers not prohibited to
the States, belongs to the States.
We must remember that
originally all powers belonged to the States, a concept known as Original
Authority. In order to create a
central government, the States granted some of their powers to the federal
government so that it may function in the manner necessary to protect,
preserve, and promote the union. The
States, in Article I, Section 10, are denied powers that would be in conflict
with the federal powers granted.
However, since the States originally maintained all powers, any
authorities not granted to the federal government, nor denied to the States for
the purpose of enabling the federal government to do its job, were retained by
the States.
The 10th Amendment was also
designed to correct the problems that arose through the creation of the Bill of
Rights. By the Bill of Rights being
composed in such a manner that the first ten amendments tell the federal
government what it cannot do, the worry was that the argument in support of
unconstitutional activity by the federal government would entail the argument,
“Where in the Constitution does it say the federal government can’t do that?” Such an argument by the central government
may open up opportunities for the federal government to compromise Americanism, and fundamentally
transform into a big government tyranny.
The Constitution was
designed to grant authorities to the federal government so that it may function
in the manner originally intended. The
powers granted to the federal government are the only authorities the federal
government has. If the powers are not
enumerated, the federal government does not have those authorities. The 10th Amendment was written to remind us
that even though the first eight amendments tell the federal government it
“shall not infringe,” the rule of the Constitution is that all federal powers
are enumerated in the Constitution, and if the power is not granted to the
federal government, nor denied to the States, the authority remains with the
States.
This article was written to
support State Sovereignty. It is
the Tenth Amendment to which one must first go when debating States’ Rights. The amendment clearly states that all federal
powers are enumerated, and the remaining unlisted powers, if not prohibited,
belongs to the States.
James Madison makes a clear
argument in support of the concept of State Sovereignty in Federalist #45: “.
. . each of the principal branches of the federal government will owe its
existence more or less to the favor of the State governments. . . 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.
The former will be exercised principally on external objects, as war,
peace, negotiation, and foreign commerce. . . The powers reserved to the
several States will extend to all the objects which, in the ordinary course of
affairs, concern lives, liberties, and properties of the people, and the
internal order, improvement, and prosperity of the State. The operations of the federal government will
be most extensive and important in times of war and danger; those of the State
governments in times of peace and security. . .”
The States serve in a manner
similar to that of parents. The people,
through their States are the parents of the federal government, but the
petulant child is not only acting in ways never authorized, but the parents,
through representation, and other means, have determined for themselves that
they have no ability to rein in the out of control creation. The 10th Amendment reveals the reality that
the States are sovereign, and that the federal government has only limited
powers.
When breaking down the
language of the Tenth Amendment, the previous articles of the Constitution
become clear. It is in the Tenth
Amendment that the principles of a limited government are most clearly
articulated.
The concept that the
Constitution was designed not to tell the federal government what it cannot do,
but to tell it what it can do, is presented clearly in the first portion of
this amendment. Powers not delegated to
the federal government by the Constitution are not authorities granted, meaning
that the federal government is limited to only the powers enumerated by the
Constitution.
Some powers, despite the
fact that original authority of all powers belongs to the States, are
prohibited to the States. The
authorities prohibited to the States are those that, if the States had those
powers, may interfere with the federal government’s task of protecting,
preserving, and promoting the union. The
list of powers prohibited to the States, any amendments doing the same
notwithstanding, are located in Article I, Section 10.
The word reserved
was chosen carefully for this amendment.
“Reserved” is used rather than the word “granted,” because the States
are not granted any powers by any source.
All of the powers already belonged to the States from the
beginning. Any powers the States did not
grant to the federal government, nor decide to prohibit to themselves through
the Constitution, remain with the States.
The presence of the word “reserved” reveals that fact. Reserved, in the context of this article,
also means “To hold for their own use.”
Terms:
Americanism - A
philosophy of freedom that actively seeks less government and more personal
responsibility.
Original
Authority - Principal agent holding legal authority; initial
power to make or enforce laws; the root authority in government.
Reserved - Kept
for another or future use; retained.
State
Sovereignty - The individual autonomy of the several states;
strong local government was considered the key to freedom; a limited government
is the essence of liberty.
States’
Rights - The authorities of the States over local issues, and other issues,
that are not directly related to the preservation of the union or are
considered as federal issues.
Questions
for Discussion:
1. Why was it
important to ensure the federal government did not encroach on State
authorities?
2. What did
Madison mean when he wrote, “the federal government will owe its existence more
or less to the favor of the State governments.”
3. Why is it
important that the enumerated powers limit the authorities of the federal
government?
4. How does the
fact that the States have original authority in regards to all powers bring
into perspective the relationship between the States and the federal
government?
5. Why was the
word “reserved” used in the Tenth Amendment, rather than granted?
Resources:
About the
Tenth Amendment, Tenth Amendment Center:
http://tenthamendmentcenter.com/about/about-the-tenth-amendment/
Definition
of Enumerated, 1828 Webster’s Dictionary:
http://1828.mshaffer.com/d/search/word,enumerate
Definition
of Reserved, 1828 Webster’s Dictionary:
http://1828.mshaffer.com/d/search/word,reserved
James Madison, The Federalist
Papers #45, Avalon Project, Yale
University:
http://avalon.law.yale.edu/18th_century/fed45.asp
Joseph
Andrews, A Guide for Learning and
Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original
Texts Using Classical Learning Methods of the Founders; San
Marcos: The Center for Teaching the Constitution (2010).
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
Thirty Enumerated
Powers, Tenth Amendment Center:
http://tenthamendmentcenter.com/historical-documents/united-states-constitution/thirty-enumerated-powers/
Copyright 2014 Douglas V. Gibbs
