Delegated. Not Surrendered.

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by Bob Greenslade

The debate over President Obama’s so-called healthcare plan has once again put the Constitution in the spotlight. Individuals from both sides of the debate are making some constitutional assertions that have no basis in fact. One of these is the claim that in adopting the Constitution, the States “surrendered” some of their sovereign powers to the federal government.

In reality, the several States did not surrender any powers; they delegated a portion of their powers to the federal government. Since the powers of the federal government come from a delegation of power, not a surrender of power, the States can amend or rescind their grant of power anytime they please through the amendment process.

A review of the ratification documents of the individual States shows that the principle of “delegated powers” was first and foremost in the minds of their delegates and the cornerstone of their requests for amendments to the proposed constitution.

• On September 28, 1787, the proposed constitution was transmitted by Congress to the several States for ratification.
• On February 6, 1788, Massachusetts, the sixth State to ratify the proposed constitution, was the first State to formally request amendments to the document. The first five States basically ratified the document unconditionally. Their ratification document stated, in part:

“[I]t is the opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.

First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.”

It is important to note that Massachusetts was requesting amendments to restrain federal power and preserve state sovereignty.

• The New Hampshire Convention—June 21, 1788.

“First That it be Explicitly declared that all Powers not expressly& particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them, Exercised.—”

• The Virginia Convention—June 27, 1788.

“First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the foederal government.”

• The New York Convention—July 26, 1788.

“That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness, that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”

• The North Carolina Convention—August 1, 1788 (does not officially ratify until November 21, 1789).

“I. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”

• The Rhode Island Convention—May 29, 1790.

“1st The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this constitution expressly delegated to the United States.”

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“This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”

• On June 8, 1789, James Madison introduced a series of proposals in the House of Representatives that would eventually become the Bill of Rights. His initial proposal for an amendment based on these proposals read:

“The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively.”

This proposal was slightly modified during the debates in Congress and became the Tenth Amendment. It was ratified by the States on December 15, 1791, including South Carolina.

The Tenth Amendment etched in stone the principle that the powers of the federal government come from a delegation of power—not a surrender of power.

Bob Greenslade [send him email] has been writing for www.thepriceofliberty.org since 2003.