What happened to the Tenth Amendment?

The Tenth Amendment:  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 Tenth Amendment is the one that says the powers not given to the U.S. federal government by the Constitution, and those powers not denied to the states by the Constitution, are powers retained by the states or the people.  When this amendment was written and passed more than two hundred years ago, the federal government’s duties were just a small fraction of what they are today, including such basic actions as defending our nation, delivering the mail, operating federal courts and ensuring commerce between the states ran smoothly.  So how did we get to the point where the federal government now tells the American people how to work, how to get educated, and numerous other dictates, but also its constant monitoring of our phone calls, emails, texts, and watching us with ubiquitous spy cameras and other technologies?  How did America turn into a police state, which has been described in The Hard Truth magazine?

Why is the statement that the Tenth Amendment is “Once again irrelevant” in the latest 2013 edition of Emanuel Law OutlinesConstitutional Law? These study guides are very popular with law students across the U.S.  This outline states:  “For nearly 40 years following the Carter Coal decision [made in 1936, during the time when President Roosevelt’s administration introduced new economic and social policies], the Supreme Court did not invalidate a single federal statute on the grounds that it violated state or local government sovereignty.  This sustained stretch led most observers to conclude that the Tenth Amendment was completely dead as an independent check upon federal power under the Commerce Clause.”

Side bar:  Commerce Clause:  Article 1, Section 8, Clause 3, of the Constitution empowers Congress “to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.”

Well, it’s a long and sad tale with a massive amount of background material, side stories, numerous Supreme Court decisions and more.  However, it can be told briefly with broad strokes based upon easily verifiable and well-documented facts.

Once upon a time, a new nation asserted its freedom with its Declaration of Independence.  There were a handful of colonies in North America which no longer wanted to be governed by Great Britain.  Thomas Jefferson was the chief architect of this Declaration where he boldly stated the purpose of all governments:  to secure the rights of life, liberty and the pursuit of happiness.  Further, that the government in securing these rights for its people, derives its right to govern from the consent of the people.

This handful of states, after a long, bloody and costly war, defeated the greatest empire on Earth at that time to win its independence and freedom.  After a few years of struggling with how to govern itself, some of the greatest minds ever assembled drafted a Constitution.  Based upon the spirit of our Declaration of Independence, our Constitution clearly established the purpose of our federal government:

  1. Establish justice;
  2. Insure domestic tranquility;
  3. Provide for the common defense;
  4. Promote the general welfare; and
  5. Secure the blessings of liberty to ourselves and our posterity.

As this new Constitution was to form a government much stronger than the previous one of the then 11 year-old United States, it had to be approved by the states before it became law.  Because the American people had just fought a war to gain their freedom, many were opposed to the new Constitution, as they didn’t want to give up their newly won freedom by exchanging tyrants from Great Britain for tyrants at home.

Newspapers at the time printed the entire text of the proposed Constitution along with arguments for and against it. People read the new Constitution and had strong opinions either for or against it.  Some of the arguments against the new proposed government were:

  • It would turn individual states into one overall government;
  • It might do away with the laws, customs and constitutions of the individual states;
  • That the office of president was too powerful;
  • That it would increase taxes on land and other property;
  • That the new federal government would become all-important to the detriment of individual citizens and states;
  • That the rights of individual citizens were not clearly listed and spelled out in a “bill of rights.”

In the many debates over the new Constitution, the feature that was most criticized was a lack of a bill of rights.  Those favoring ratification promised to add a bill of rights by amending the Constitution, and with this promise enough support was gained to ratify the Constitution in 1788.  The next year, the very first Congress of the United States under its new Constitution proposed a Bill of Rights which again had to be approved by the states, which was completed by 1791.  This Bill of Rights consisted of what are now the first ten amendments to our Constitution.

Side bar:  America and her Constitution were a beacon of liberty to the world.  Her Constitution has been copied the world over many times by countries trying to emulate what happened in America.

Seven years later in 1798, during increasing hostilities with France which threatened war, President John Adams signed into law the Alien and Sedition Acts.  These acts increased the residency requirement for American citizenship from five to fourteen years, authorized the president to imprison or deport aliens considered “dangerous to the peace and safety of the United States” and restricted speech critical of the government.

Thomas Jefferson was the vice president at that time, and vehemently disagreed with the Alien and Sedition Acts.  Jefferson saw that much of what these acts contained were grabbing powers which belonged to the states. Even though restricting speech is also a First Amendment issue, the thrust of Jefferson’s arguments were based on the Tenth Amendment, or the federal government exercising powers which belonged to the states.

In 1798 and 1799, both James Madison and Thomas Jefferson wrote resolutions passed by the legislatures of Virginia and Kentucky protesting the Alien and Sedition Acts.  Of course, James Madison, our fourth president, is commonly regarded as the “father of the Constitution” for his work at our Constitutional Convention and in getting our Constitution ratified.

These Kentucky and Virginia Resolutions argued that because the federal government was formed from agreement amongst the states, all powers not specifically granted to the federal government were retained by the individual states or by the people. Thus, the states had the power to pass upon the constitutionality of federal legislation.

In 1800, Jefferson wrote:

Our country is too large to have all its affairs directed by a single government. Public servants, at such a distance, and from under the eye of their constituents, must, from the circumstance of distance, be unable to administer and overlook all the details necessary for the good government of the citizens; and the same circumstance, by rendering detection impossible to their constituents, will invite the public agents to corruption, plunder, and waste. And I do verily believe that if the principle were to prevail, of a common law being in force in the United States (which principle possesses the general government at once of all the powers of the state governments, and reduces us to a single consolidated government), it would become the most corrupt government on the earth.

Now that we’ve covered some of the key basics on the Tenth Amendment, for the sake of brevity, let’s jump ahead to the key year of 1913.  The fateful year of passage of both the 16th Amendment authorizing the now dreaded income tax and the 17thAmendment switching the election of US senators from the state legislatures to a popular vote by the people of each state. Both key planks in the police state we now have.

The original Constitution simply did not allow an income tax; hence an amendment was needed to make such a tax constitutional.

The original Constitution set up our Congress so that congressmen serving in the House of Representatives were elected by the people of each state, but that senators serving in the Senate were appointed by the state legislatures.

The original intent of having state legislatures appoint U.S. senators was to protect state’s rights.  After passage of the Seventeenth Amendment, the states no longer had veto power in the U.S. Senate to protect those rights. Hence, a further degradation of the Tenth Amendment.

The first proposal to amend the Constitution to elect senators by popular vote was introduced in the U.S. House of Representatives way back in 1826.  By the late 19th century, this idea was gaining support because political machines had gained control over quite a few state legislatures and senators appointed by such political machines were viewed as puppets.

Now jumping ahead to recent years, Emanuel’s Constitutional Law states “As of this writing, it does indeed seem to be the case that the Tenth Amendment places relatively few practical limitations upon the exercise of federal power under the Commerce Clause.  However, for the period 1976-85, the Supreme Court treated the Tenth Amendment as imposing an important limit on federal power—this Amendment was held to bar the federal government from doing anything that would impair the states’ ability to perform their ‘traditional functions.’  Then in 1985, the line of cases establishing this limit was flatly overruled by the Supreme Court, in one of the most amazing reversals of doctrine in modern Supreme Court history.”

If there were a functioning Tenth Amendment, states or citizens would not be forced to buy government dictated health insurance.  But in 2012, twenty-six states and numerous other plaintiffs filed lawsuits challenging the constitutionality of Obamacare or the Affordable Care Act.  There were many reasons for these suits, but the main thrust was against forcing people to buy health insurance that they didn’t want as such coercion went beyond the Commerce Clause.  Five out of the nine Supreme Court justices agreed with this argument.  However, the Supreme Court ruled that Obamacare was constitutional as authorized by Congress’ power to tax by a 5 to 4 vote.

One could easily get lost in searching back through history to find the route by which the Tenth Amendment became “irrelevant.”  However, let us review our basics.  The Constitution lays out a “federal” system, and we call our national government the “federal” government.

The word “federal” comes from a Latin word, which means “league.”  “League” means an alliance between states for their mutual aid and defense.  A key element is their agreement.  “Federal” means a league of states that have agreed to cooperate with each other for a specific purpose or purposes.  Hence, we have our national government, which was made from the agreement of the states to cooperate with each other.

The battle between the ever increasing power of the federal government and the diminishing power of the states and individual citizens has been ranging since before our Constitution was adopted.  And of course, it will continue.

It’s interesting to note our Founding Fathers had a different system of measuring governments or people’s view of governments than is commonly used today: that of being “left wing” or “right wing” as if they were opposites—as history has clearly shown that both left wing and right wing politics can lead to totalitarianism or police states.  The Founding Fathers’ view was “too little government” at one extreme and “too much government” on the other.

Thomas Jefferson wrote in 1788 “We are now vibrating between too much and too little government and the pendulum will rest finally in the middle.” Jefferson’s prediction of the long-term future obviously didn’t come true.

The Random House Unabridged Dictionary defines “police state” as “a nation in which the police, especially a secret police, suppresses any act by an individual or group that conflicts with government policy or principle.”

The facts clearly show the USA has been descending into a police state for a very long time.  There are literally thousands of examples in recent decades, but here are just a few well-known ones which I believe most people will agree are police state tactics:

1930s – 1970s:  J. Edgar Hoover’s secret dossiers on activists and political leaders.

1940s: Internment of U.S. citizens of Japanese descent.

1950s:  MK-ULTRA, the code name for the CIA’s illegal human research mind control experiments from the early 1950s through the late 1960s.  Unsuspecting U.S. and Canadian citizens were the guinea pigs.  Brought to light in 1975 by the Church Committee in the U.S. Senate.

1960s:  FBI targeting and harassing potential “Messiahs,” such as Dr. Martin Luther King, Jr., Malcolm X, and others.

1970s: Nixon’s enemies list to target his alleged “enemies.”

1980s:  IRS harassment of citizens (as well as earlier and later decades)

1990s: Waco, Texas, 1993.  The FBI’s Hostage Rescue Team led a 51-day standoff against a sect’s compound, which ended in a fire killing 76 of the occupants, including many women and children.

2000s: Patriot Act. Most of us have undergone the police conditioning of being screened at airports.

2010s:  Suicides of American veteran soldiers are 22 a day.  85% of the suicides never saw combat and 52% were never deployed overseas.  The cause is psychiatric drugs with known suicidal side effects given by the Veterans Administration and other medical establishments.

2013: The massive U.S. government surveillance and spying programs exposed by Edward Snowden.

If there were an operable Tenth Amendment, the states or individual citizens would have been able to stop or abate these atrocities.

The fairy tale envisioned by our Declaration of Independence and Constitution is alive and well in the statues, paintings and plaques in Washington, D.C. and other historic cities around the United States.  But this fairy tale doesn’t hold up in the real world today, or even our recent yesterdays.

I, however, still believe America is the greatest country on Earth, in no small part evidenced by the fact I can write and publish this essay.

I also believe we can regain our heritage, and our self-respect, but only after the light of truth has been fully shown on our country’s blemishes.  I fully agree with Thomas Jefferson when he said:

“I know no safe depository of the ultimate powers of the society, but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.  This is the true corrective of abuses of constitutional power.”