The Amendments Series: Today, We Need the Bill of Rights…but We Shouldn’t


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Some of you may have been awaiting the Tenth Amendment since it is often associated with states rights. I’ve already discussed states rights at length in this blog. States rights is referenced and mentioned many times throughout the Constitution. The Tenth Amendment is an addendum to an already established and understood tenant of American politics: the states and people retain and maintain the majority of the power.

The amendment says:

“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.”

Remember, I said that the Ninth Amendment was a Federalist addition?

Ok, so was the Tenth Amendment.

Here’s an excellent quote by scholars at the Constitution Center. I would highly recommend reading their stuff for a more detailed analysis.


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“In sum, the Constitution’s Framers thought that a bill of rights was appropriate for an unlimited government, but not for a limited one like the national government created by the Constitution. The Constitution accordingly sought to secure liberty through enumerations of powers to the government rather than through enumerations of rights to the people…It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone’s rights, but whether it exceeds the national government’s enumerated powers. 

In this sense, the Tenth Amendment is ‘but a truism.’ United States v. Darby(1941). No law that would have been constitutional before the Tenth Amendment was ratified becomes unconstitutional simply because the Tenth Amendment exists. The only question posed by the Tenth Amendment is whether a claimed federal power was actually delegated to the national government by the Constitution, and that question is answered by studying the enumerated powers, not by studying the Tenth Amendment. That was the understanding of the Supreme Court for nearly two centuries.”

Does this make sense? I’ll try to make it a little more accessible. Basically, as I said in my post about the Ninth Amendment, the founders created a heavily limited government with specific enumerated powers. This caused the Federalists to believe that the Bill of Rights were unnecessary and even dangerous. Hamilton said: the bills of rights “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?”


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So, the Tenth Amendment and all the amendments aren’t really needed. The anti-federalists got their way and the first eight amendments are theirs. However, the last two amendments exist because the federalists wanted to provide extra protection against the potential power of government as a result of the Bill of Rights.

In other words, by making a list of rights that the government could not infringe upon, it diminished the power of the Constitution’s enumerated powers by insinuating that the government could potentially pass laws about issues they had no power to make law about. Again, the scholars at the Constitution Center say it beautifully, “It [Bill of Rights] was considered unnecessary because the national government was a limited government that could only exercise those powers granted to it by the Constitution, and it had been granted no power to violate the most cherished rights of the people.”

So, the Tenth Amendment is indeed redundant. It simply exists to reaffirm that the federal government’s powers are incredibly limited and any power not mentioned in the Constitution should be left to the states and their people. The founders worked to protect liberty by enumerating very specific powers to government rather than trying to enumerate various rights to the people (which insinuates the government has the ability to enumerate rights to the people).

I’m tempted to simply post Dr. Lawson’s explanation from the Constitution Center, as it is extraordinary. I think I will give you a rather hefty chunk.

Here’s the thing about the Bill of Rights. They are essentially the failsafe of the Constitution. If the federal government chooses to act outside of the powers enumerated to it, then the amendments begin to play a bigger role. So, we don’t really want to have to use the amendments, or need the amendments because that would means the federal government is trying to pass laws far outside of its sphere of Constitutional power.

Also, the amendments can be used to justify unconstitutional government behavior by simply stating that the unconstitutional behavior is not violating any of the ten amendments.

It’s a rather infuriating fight, since government has, for 250 years, attempted to give itself more power in every way possible, twisting and maneuvering around the Constitution, and the American people have not only let such abuse happen but have, many times, demanded that it happen.


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So, the Tenth Amendment, as well as every single other amendment, are unneeded, redundant footnotes to the already clearly stated-and limited— powers of the federal government.

I’m going to let Dr. Lawson, professor of law at Boston University, explain a bit more:

“There are two other, and more concrete, ways in which the Tenth Amendment has constitutional value. First, the reminder that powers not delegated to institutions of the national government do not belong to institutions of the national government should prevent anyone from inferring particular federal powers from the general nature of governments, rather than from specific grants of power to this specific federal government.”

Remember, the federal government derives its power from the Constitution. If it didn’t, if it just had inherent power, its power would be arbitrary and unconfined. The founders wanted to avoid this. The Constitution exists to limit the power of the government by clearly defining its sphere of power. The government only has power because of the Constitution.


“Nonetheless, the Supreme Court, especially in the late nineteenth and early twentieth centuries, has sometimes been very fond of arguments that run something like: ‘All self-respecting governments can do X, our national government is a self-respecting government, therefore our national government can do X.’ This kind of reasoning was used to support dubious federal powers to exercise eminent domain, to implement a military draft, to hold overseas colonies, and to pass laws concerning immigration. (If one actually reads the Constitution, one finds enumerated congressional power over naturalization but not a power over immigration, which therefore left the latter to the individual states unless it can be jammed into the idea of “Commerce with foreign Nations” or is somehow an “executive Power.”) A straightforward reading of the Tenth Amendment forecloses that line of reasoning.”

In other words, the federal courts have begun to argue that the government has power inherent in itself. Basically, it has power outside of the Constitution—therefore it has arbitrary power. This means that there is nothing to limit government’s power anymore. The enumerations in the Constitution mean nothing.

“Second, the Tenth Amendment, along with the rest of the Bill of Rights, might have value as a kind of backstop in case the original Constitution’s meaning gets too deranged. In modern times, the enumerated powers of the national government have been misread beyond all recognition, to the point that the actual Constitution is not really part of the governing structure at all. We live with a shadow, or “zombie,” Constitution that has the outer husk of the original document but none of its actual substance.”

I couldn’t have said it better. Let it sink in.


Once the enumerated powers are misconstrued out of existence, weight falls on the rest of the Constitution, most notably the Bill of Rights, to restore to some very modest degree the original balance of power. The various ‘Tenth Amendment’ cases decided by the Supreme Court may serve this function. Congress, for instance, has no enumerated power to conscript state legislatures or executives into enforcing federal law (though it does actually have enumerated power to conscript state courts into hearing federal cases through the Article I Tribunals Clause). But if arguments that rest on a lack of enumerated power are foreclosed by wretchedly bad prior cases, then subbing in the Tenth Amendment to reach the correct result is not a completely irrational strategy. It may not be as good as getting the enumerated powers right in the first place, but it may be a plausible second-best solution.”

So basically, the Tenth Amendment, and really all the amendments, act as a failsafe for an unlimited government. When government’s power is unlimited, specific dictates about what rights it cannot infringe upon, come in handy.

Conclusion

So, I bring this amendments series to a close on a rather bleak note.

The only reason the Bill of Rights is important today is because our government’s power is now unlimited. If the government’s power were confined, appropriately, by the enumerated powers of the Constitution, the Bill of Rights would be unnecessary.

This should hit you hard. It hits me hard. It’s sobering to face the reality that, truly, our Constitution is a ghost, a zombie of what it once was. The Bill of Rights are important today because of that. They never should have been necessary.


And the most devastating part of all of this is that we ushered in the death of our own Constitution and the existence of a completely unlimited federal government.

How did we do this? Primarily, through sheer ignorance. We demanded of government things that government did not have the power to do. But, government was more than willing to acquiesce, knowing that it would not suffer consequences for such overreach of power, because its own citizenry had demanded the overreach in the first place.

Friends, it’s time to shake off ignorance. It’s time to be the responsible, educated and involved citizenry our founders expected us to be. It’s time for us to stand up and know what our Constitution says, to know when our government is violating its enumerated powers. It’s time for us to call out our fellow Americans for naively demanding of government actions that it cannot do. We must stand up, even if it means standing alone.

Friends, it’s time to actually be Americans.

The Liberty Belle

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