According to some ways of thinking, the Tenth Amendment constitutes little more than a truism which stipulates that "all is retained which has not been surrendered" (cf. United States versus Darby, 1941). Underlying this mode of thought is the belief that if one examines the history surrounding the adoption of the Tenth Amendment, then one will discover (or so it is argued) that the purpose of the Tenth Amendment was only to allay the concerns of people in the various states in relation to the possibility that, sooner or later, a centralized government would try to exercise powers not explicitly granted in the Constitution and, as a result, the states might not be permitted to fully exercise the powers which had been reserved to them. I do not believe such a perspective is tenable. To begin with, there is considerable ambiguity surrounding the idea that "all is retained which has not been surrendered," and, as a result, the question immediately arises: retained by whom and surrendered by whom? Furthermore, as more than two hundred years of judicial review have demonstrated, there seems to be considerable controversy swirling about the issues of just what has been retained and just what has been surrendered. If the Tenth Amendment was nothing but a truism, then individuals such as George Mason, Samuel Adams, Tom Paine, Patrick Henry, and Thomas Jefferson would not – each in his own way -- have pursued a rearguard action to ensure that the rights of people – rather than governments of whatever kind – were protected . If it was only a matter of federal versus states rights, the phrase "or to the people" never would have been added to the amendment. The purpose of the Tenth Amendment was to give people a constitutional standing. This sort of standing had not been given in the original pre-Bill of Rights version of the Constitution, and, in fact a very strong argument can be made that although the first eight amendments of the Bill of Rights did afford a variety of protections to individuals, none of those first eight amendments firmly established the people with full Constitutional standing. Prior to the forging of the Bill of Rights,, the Constitution which had been drafted tended to talk exclusively in terms of the powers of different branches of federalist governmental institutions. Article I was about Congress. Article II was about the Executive Branch. Article III was about the Judiciary. Article IV was about the States. Article V outlined the means through which Congress and State Legislatures might amend the Constitution. Article VI established the Constitution and the laws made pursuant to the ratification of the Constitution as being the supreme law of the land which all courts and elected representatives were obliged to uphold. And Article VII indicated that nine out of thirteen states would be enough to ratify the Constitution, although this last article said nothing about what would happen if the other four states chose to stay with the Articles of Confederation. Considered apart from the various levels of federalist government and considered apart from the Preamble -- which many advocates of federalism merely interpret as being rhetorical window dressing that gives expression to literary style rather than constitutionally substantive issues – the people are hardly even mentioned in the Constitution except in little ways, almost in passing, when, for example, the vote of the people was seen as the means through which ambitious, frequently self-serving people acquired the power of elected office. Even here, the drafters of the Constitution exhibited their distrust of the people by establishing the convoluted and totally unnecessary procedures for operating an electoral college in clauses 2, 3, and 4 of Section 2 in Article II that dealt with the Executive Branch. If people could be trusted to vote directly for Senators and members of the House, then, why could they not be trusted to vote directly for the President and Vice President? Is the creation of an electoral college not an indication that the framers of the Constitution believed that the head of state should be selected by a 'power elite' rather than the people? One can seek to try to justify the existence of an electoral college in any way one likes, and one can even argue that in most cases (but not in all) the popular vote and the vote of an electoral college tend to coincide. However, in the end, an electoral college exists as a buffering layer of centralized government which is intended to serve as a constraint upon the will of the people. For example, there are some who argue that an electoral college is necessary because it serves to balance the interests of relatively unpopulated states with the interests of heavily populated states and, in the process, seeks to serve as a bulwark against heavily populated areas dominating the election process. Aside from the fact that one might say similar things in relation to Congressional elections in which heavily populated areas tend to have domination over rural areas within any given state, and, yet, no one felt a need to establish an electoral college for the states with respect to campaign races for Congressional seats, the fact of the matter is that even under the electoral system, if one carries 10-12 of the right states, then how people in the rest of country vote is largely irrelevant. Of course, the people – but only by implication – were alluded to in the Constitution with respect to the Congressional power to levy and collect taxes. Like the existence of voting, so, too, in the matter of taxes, the people were seen as a means to an end – in this case, the acquiring of money. Alternatively, the people – but, once again, only by implication rather than through specific mentioning – were alluded to by the Constitution as being the official source for canon fodder in time of war. After all, what good is achieved if Congress can declare war and the President can serve as Commander in Chief if there are no people to fill the ranks of the military and the militias? The people were also indirectly referred to in the Constitution when Section 9, Clause 2 of Article I indicated that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Consequently, the fate of people was left in the hands of centralized government with respect to whether or not evidence would have to be presented to prevent the possibility of unwarranted imprisonments by autocratic governments who were in a position to label almost any kind of dissent as constituting rebellion. Citizens were much more explicitly mentioned in Section 2 of Article III of the Constitution. Here the document stipulated that the people were subject to the jurisdiction and powers of the Judicial Branch. In Article IV, the people are mentioned, more or less, in passing. More specifically, the Constitution indicates in Section 2 of this article that: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." What this means in practical terms appears to be left to the discretionary powers which have been extended to the federal government and states by the Constitution. In summary, according to the Constitution, without a Bill of Rights, people could vote (although in the case of the President, not directly or even definitively), pay taxes, die during war, be subject to the dictates of the judiciary, and enjoy "all privileges and immunities of citizens of the several states." These latter privileges seemed to consist of voting, paying taxes, dying, or being ruled over by the courts, while the immunities enjoyed by the citizens appeared to be a matter of being promised that the privilege of habeas corpus would not be suspended unless, of course, the government deemed this to be necessary. Given all of the foregoing, is it any wonder that the first eight amendments of the Bill of Rights insisted upon as the price of ratifying a Constitution which cared little for the citizenry except as a means to the various ends, purposes, and ambitions of people who sought power through centralized government? Given the stark nature of the Constitution absent a Bill of Rights, is it any surprise that there were people who insisted on the last two amendments of the Bill of Rights to ensure that the people had a Constitutional standing independent of the different branches of federalist or layered government? If by 'states' one understands the term to mean the kinds of institutional centers of power which were outlined in Article IV of the Constitution, then, one might well suppose that the Tenth Amendment is a truism in which "all is retained which has not been surrendered." In other words, since the Constitution without the Bill of Rights is largely about centralized forms of power (i.e., Congress, the Executive, the Judiciary, and the States) rather than people, then, it follows from such logic that because democracy is, or should be, according to advocates of this position, about centralized control (i.e., government power) over people, then for such a person, whatever powers have not been given to one level of government belongs to the other level of government … and the people be damned. However, if by 'states' one understands this term to refer to the collectivities of people in certain geographical regions, then, just who (the people or the government) is retaining or surrendering powers, and just what powers are being retained or surrendered becomes a much more complex issue. The fact that the first nine amendments of the Bill of Rights are about the rights of people and not of government, and the fact that the Tenth Amendment ends with "or to the people" demonstrates that the use of the term 'states' in the Tenth Amendment was not necessarily just about bodies of centralized power and, instead, is likely to have referred to the people from whom states, as a federalist entity outlined in Article IV, derived their various powers. In a 1975 decision by the Supreme Court concerning Fry v. United States, reference was made to a 1941 Supreme Court case involving United States v. Darby which characterized the Tenth Amendment as a 'truism' asserting that 'all is retained which has not been surrendered." The jurist writing the decision in 1975 stipulated that notwithstanding the aforementioned words in the 1941 judgment, nonetheless, the Tenth Amendment "is not without significance. The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system." As the main character of the movie entitled 'The Shawshank Redemption' says to the warden of the prison "How can you be so obtuse?" Indeed, totally absent from the foregoing legal cases is any mention of the people … as opposed to either the federal or state governments. Unfortunately, the people in a system of federalism are often treated by the different levels of government in a way which is reminiscent of the manner in which so-called adults treat their children when engaged in a divorce involving bitter custody disputes. The people in relation to governments are, like children in all too many divorce cases, treated as if they were chattel … to be disposed of in accordance with the likes and dislikes of those who presume themselves to be all that really matters in the grand scheme of things. However, as modern family law has established, children have rights and entitlements quite independently of the wishes and desires of the parents. Just as the rights and entitlements of children need to be protected against the irresponsibility of parents who are engaged in self-serving power struggles with one another, so too, the rights and entitlements of the people need to be protected against the self-serving power struggles which take place between different levels of government. Supreme Court jurists in both Fry v. United States (1975) as well as in United States v. Darby (1941) are committing errors which are variations on a theme. They each, in their own way, are seeking to frame the Tenth Amendment as purely a function of a power struggle between two levels of government. The Tenth Amendment is truly revolutionary, and the courts have been eager to sidestep the ramifications of this fact in as many ways as possible. Through this amendment, people have been given full constitutional standing alongside the different levels of government. Truly republican forms of governance (and not all forms of governance need be a function of government power) is when the people have as much, if not more, say in determining what constitutes the principles of justice, domestic tranquility, the common defense, general welfare, and liberty as do the federal and state forms of government. For obvious reasons, acknowledging the foregoing point is not in the interests of governmental bodies which are founded upon the idea of wielding control over others, because once the underlying principle is fully admitted, recognized, and accepted, then activities which are directed toward acquiring power and, then, employing such power to impose, by force if necessary, various programs of public policy onto the people becomes very much harder to accomplish. When different levels of government engage one another in a power struggle, everyone understands what is transpiring. The goal of the game is to establish who has power and how much power, as well as what kinds of power, belong to the victor in the tussle. Why do governments seek power? The answer to this question is obvious. The only reason why governments seek power is in order to be able to control, regulate, use, or exploit not only other human beings but, as well, existing resources. A person does not seek power to do good for others because if that were the goal, this could be accomplished without the need to either seek or acquire power. One seeks power because, knowingly or unknowingly, one wishes to impose one's perspective, ideology, vision, theology, or agenda on others. Empowering citizens with the ability and means to counter such self-aggrandizing ambitions constitutes a fly in the democratic ointment … at least from the perspective of those who wish to use that ointment as a means to advance their own purposes rather than the purposes and needs of the people. A person might wish to argue that people, with the best of intentions, may seek office not due to self-serving motivations but in order to leverage the power, resources, and money of Congress or the Executive Branch in order to accomplish good for others – a good which individuals operating through their own limited resources, money, and power could not possibly hope to accomplish. The reality of the political situation is such, however, that even when elected representatives sincerely struggle with the weighty questions swirling about the problem of trying to do what is best, what is considered to be the best choice is often only an expression of what such individuals deem to be best according to their own philosophy of life, and, as a result, the people often are held hostage to someone else's notion of what constitutes the common good, or the people are the recipients of one form, or another, of political abuse when power is leveraged irresponsibly or ill-advisedly … even with the best of intentions. Some may wish to respond to the foregoing and contend that however problematic our system of elected representatives may be, this is all that can be done. Democracy cannot be better – or so the argument goes -- than the quality of the representatives who are elected, and if such elected officials prove themselves unworthy of the responsibilities of elected office, then, the people can vote to throw them out during the next round of voting. I believe such arguments are incorrect. I believe there is a better form of republican government than simply voting for representatives to serve as would-be surrogates of the people, and toward the latter part of this essay, I will outline what the nature of that better form of republican governance is … although a number of hints already have been given in what has been said previously. In the meantime, let it be said that the entire Bill of Rights does empower citizens to resist the incursions and encroachments of power-hungry centralized governments (whether local, state, or federal). However, the Ninth and Tenth Amendments are particularly significant in this respect because those two amendments indicate that it is the people who have the right and power to determine the meaning of the form of republican government which has been promised to the people in Article IV, Section 4, of the Constitution. No one in her or his right mind or heart would be willing to give up their unfettered liberty so that Congress, the Executive Branch, the Judiciary, and the various states would have the power to arbitrarily dictate to people concerning what powers, rights, privileges, or immunities citizens should have, or so that different levels of government could have the right to oppressively regulate what form republican government might assume. Such a state of affairs would have been no better than the various forms of monarchy from which people were seeking to escape when they came to America. In fact, it might have been worse because the people would have been swapping one monarch for a multiplicity of ego-driven power mongers, many of whom were deluded to believe that they possessed something akin to a Divinely-sanctioned mandate to rule over the lives of others as they saw fit. If all democracy signifies is the right to vote on who gets to usurp one's rights, liberties, and powers, or if democracy only means one has the right to vote on who gets to control, regulate, oppress, and exploit the voters, then, democracy is not really a revolutionary step forward. Rather, it is just the exercise of monarchy and autocracy by another name. If one is to give up the right of unfettered freedom, then, one must be offered something of value in return for what is being sacrificed. Since all of us consider our freedom to be precious, then whatever is to be offered in exchange for giving up the unbridled exercise of such freedoms must also be very precious. The only medium of exchange which is fair to those who are willing to sacrifice certain dimensions of freedom for the collective good would be to have an opportunity for self-governance through the mediated negotiations which take place by means of some form of republican governance that seeks to establish, as much as is humanly possible, principles of justice, liberty, domestic tranquility, the common defense, and general welfare for all citizens and not just for those who possess governmental power who are favored by such power. While -- when functioning properly -- Congress, the Executive, the Judiciary, and the states could all play substantial roles in helping the people to secure, protect, promote and realize the fruits of such mediated republican negotiations, one cannot deny to the people their own right to seek solutions to such negotiations through non-governmental means, nor can one insist that it is the peremptory duty and right of governments to seek to thwart, undermine, or constrain such non-governmental republican efforts (and one should not necessarily read into what is being said as being an expression of advocacy or preference for private market solutions to such negotiations). Governments are being empowered by people that are sacrificing the latter's ability to exercise the people's freedom in unbridled ways. What is it that governments are sacrificing on behalf of the people in order to be able to come into existence? Presumably, governments, like people, must be willing to sacrifice their capacity to act in oppressive ways toward those from whom they derive their existence and with respect to whom governments have a fiduciary responsibility which has been entrusted to them. Presumably, the people must be empowered by the act of empowering governments, and one cannot necessarily guarantee this will be the case unless one can develop a means of establishing oversight (which extends beyond the capacity to vote people into and out of office) with respect to those who have been elected to serve as representatives of the people. There are two streams of republicanism inherent in the foregoing. One republican stream flows from the electoral process, and when this stream flows in a non-pathological manner, then, the representatives will assist the people to realize the principles inherent in the Constitution. The other republican stream flows directly from the people in a manner that is unmediated by elected representatives and which bears the responsibility of, among other things, ensuring that elected officials are faithful to their oaths of office. The Constitution without the Bill of Rights is an invitation to abuse of power and oppression. The Constitution without a Preamble is an invitation to arbitrariness and lack of purpose. If the Constitution does not exist to seek to assist people to secure liberties, justice, domestic tranquility, the common defense, and the general welfare, then, why should anyone bother with such a document at all? If the Constitution does not provide the people with the capacity to gain ultimate control over what transpires within government, then, by ratifying a constitution without such assurances, then the people are not empowering themselves, but, instead, they are empowering government over against the people, and in the process the people would have sacrificed their freedoms for nothing. In McCulloch v. Maryland, Supreme Court Justice Marshall rejected the claim put forth by the State of Maryland which attempted to introduce an argument in support of the state's position based on a Tenth Amendment argument. More specifically, the State of Maryland noted in its legal argument that one of the fears of those who originally resisted ratification of the Constitution revolved around the concern that the rights of states might be abolished or diminished by a powerful central government. The counsel for Maryland asserted that the Tenth Amendment had been added to the Bill of Rights in order to assuage such concerns and fears. The State of Maryland proceeded to argue that, under the Tenth Amendment, the power to create corporations was reserved for the states. In response, Justice Marshall advanced a position which was rooted in the Constitution's 'necessary and proper' clause (Article I, Section 8) as a counter to the legal position of Maryland. In effect, Justice Marshall was indicating that the Constitution entitled Congress to make whatever laws it believed to be required in order to be able to execute the powers which had been given to Congress under Section 8 of Article I. Moreover, Justice Marshall argued that in contrast to the Articles of Confederation, the Tenth Amendment was missing the word "expressly" with respect to the qualifying of powers being granted in relation to that amendment. As a result, he maintained that the absence of the term "expressly" in the text of the Tenth Amendment left open the issue of "whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other" and that in order to be able to determine this one needs to "depend upon a fair construction of the whole instrument." Aside from failing to spell out what might be entailed by a "fair construction of the whole instrument" (other than to express the presumption that what Justice Marshall was stating was the appropriately fair construction), and aside from failing, as well, to establish the criteria and means of evaluation through which the idea of "fairness" would be established for everyone to understand, Justice Marshall committed several errors in the construction of his argument. To begin with, contrary to what Justice Marshall says, the issue is not whether the term "expressly" does, or does not, appear before the word "delegated" in the Tenth Amendment, nor can the issue before the Court be reduced down to a matter of what powers have been either delegated to one government or another or what powers may have been prohibited to one government or another. Justice Marshall erred by failing to take the Constitutional standing of people – apart from government -- into account during his deliberations. It is as if the Constitutional standing of people never even entered his mind and as if the Constitution only were limited to matters of which level of government should be assigned which powers. Under the Tenth Amendment, "a fair construction of the whole instrument" would include the involvement of the people independently of state and federal governments. Marshall did not cite this, and, therefore, he has misread and misunderstood the nature of the Tenth Amendment. The foregoing mode of argument is quite surprising and somewhat self-serving with respect to Justice Marshall's judicial 'take' on things. After all, although Justice Marshall was prepared to note that the term "expressly" had been left out of the text of the Tenth Amendment, and, consequently, he seemed to believe that the term's absence was very significant, and, yet, he apparently failed to take into account the fact that the phrase "or to the people" did appear in the text of the Tenth Amendment and seemed to treat that phase as being completely insignificant … as if there were no difference between states and the people. On the other hand, the State of Maryland's argument was also self-serving in as much as it was only concerned about whether the rights of states might be swallowed up by a centralized federal government. The State of Maryland did not appear to be at all concerned with the possibility that the rights of people might be swallowed up by the centralized government of states, just as the rights of states could be swallowed up by the federal government. Contrary to the argument put forth by the State of Maryland in McCulloch v. Maryland, the power to create corporations was not necessarily reserved to the states by the Tenth Amendment. Like Justice Marshall, Maryland's lawyer conveniently forgot the fact that the people – independently of government -- should have had a say in the matter of whether corporations ought to be created at all, and that if the people – independently of government -- were agreed that corporations might, under certain circumstances, be a good thing, then, the people should have had some degree of significant influence in determining the kind of structure or powers to which corporations should be entitled, as well as a substantial degree of influence in determining what kind of control the people were entitled to have over such created entities. Finally, if it is appropriate for Justice Marshall to take into account what the Articles of Confederation did, or did not, say with respect to the problem of how to understand the principle inherent in the Tenth Amendment, then, presumably, it should also be okay to take into account such documents as the Declaration of Independence during one's attempt to seek an understanding of that same amendment. The Declaration of Independence was an advocate for people and an opponent of government – especially tyrannical and unjust government. The Declaration of Independence alluded to the need for a form of government which would serve the interests of people rather than a form of government which must be served by the people and which was entitled to oppress them. Consequently, in reaching his decision, Justice Marshall engaged in a certain amount of 'cherry picking' in relation to the arguments which he advanced. More specifically, although he cited the Articles of Confederation because he felt that supported his legal position, nonetheless, he simultaneously seemed to ignore whatever may have contradicted the argument (e.g., the Declaration of Independence and the phrase "or to the people") he was putting forth. Finally, Justice Marshall's citing of the 'necessary and proper' clause of Article I, Section 8, in his decision with respect to the McCulloch versus Maryland case may be incomplete as it stands. While the Constitution does entitle Congress to "make all laws as shall be necessary and proper for carrying into execution" its Constitutional powers, the enactment of those Congressional laws must be measured against whether, or not, they would help advance, or diminish, the principles inherent in the Preamble, and such laws must be measured against whether or not they could be passed in a manner which would not undermine the constitutional guarantee of republican government to the people, via the states, or without infringing on any of the provisions of the Bill of Rights -- such as the establishment clause of the First Amendment as previously discussed – or without transgressing any of the other constraints upon the laws of government -- such as the involuntary servitude clause of the Thirteenth Amendment. | Part 1 | Part 2 | Part 3 | Part 4 | Next | | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 |