Amendment X: The False Truism

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by Connor Boyack, Utah Tenth Amendment Center

The history of the tenth amendment to the U.S. Constitution provides an insightful look into the fears and concerns shared by the founders of this nation. In the Federalist/Anti-Federalist duel over the nature of the proposed federal government and the Constitution’s ability to both empower and restrain it, some individuals proved more prescient than others in warning about the creature exceeding the powers of its creators and continually assuming new authority.

It was hoped that the plain language of the last amendment in the Bill of Rights would clearly affirm the fidelity with which officials must adhere to the Constitution. Its language is succinct and its meaning clear: any powers not delegated to the federal government are denied it, and thus reserved to the states and to the people.

Interestingly, this amendment has become commonly referred to as a “truism”—a statement which is obviously true, and which provides no new insight or meaning. Examples of truisms are “where there is smoke, there is fire”, “torture is barbaric”, and “abuse of power comes as no surprise”. The Supreme Court stated in 1931, in United States v. Sprague, that the tenth amendment “added nothing to the [Constitution] as originally ratified.” A decade later, they similarly wrote:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers…

If the denial to the federal government of any undelegated power is indeed a truism, then why has that entity repeatedly exercised authority for powers it was never given by the states? It is because the tenth amendment is a false truism: a statement to which many give lip service, but in which few truly believe. In short, it is not true. History, of course, bears out the reality that it indeed is untrue, despite its plain language and generally understood implications. It should be true, and ideally would indeed be little more than an unnecessary truism.

Ignored though it may be, the tenth amendment provides advocates of limited government and state sovereignty a fulcrum upon which to hinge their efforts. We can and should work to make this amendment a truism in fact—a statement that is largely unnecessary, because internal and external restraints force the federal government to operate only within the powers delegated in the Constitution.

Connor Boyack [send him mail] is the state chapter coordinator for the Utah Tenth Amendment Center. He is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.

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You need to ask, why would a liberal want it to be a truism? Because then he would not have to treat it like "law", or even worse, the "supreme law of the land".

Liberals do not have intellectual opinions. They merely have tactical notions of advancing Marxist doctrines. It is vital not to be drawn into the trap of taking liberal arguments as intellectual ones.

I think the actual problem lies with the way that the federal government applies the provisions in the fourteenth amendment. And keep in mind that the fifth section of that article grants authority to Congress to enforce its provisions. The same clause is attached to other amendments, transferring authority over their provisions to the feds.

Arizona's immigration law is a good case in point. While immigration is not a delegated, nor prohibited, thus reserved power, the feds get around this by application (or misapplication) of the fourteenth's provisions. There is also the "enrollment at birth program" conducted by the Social Security Administration, which gets around the problem with children born in U.S. hospitals to alien parents subject to a foreign jurisdiction. Enrolled at birth, these children are, thereby, subject to U.S. jurisdiction. Which subjects all State and local laws to federal jurisdiction via the fourteenth amendment.

Ain't U.S. citizenship just wonderful!

Connor states-

"If the denial to the federal government of any undelegated power is indeed a truism, then why has that entity repeatedly exercised authority for powers it was never given by the states?"

The Amendment only applies to powers not granted. The Commerce Clause, Necessary and Proper Clause, etc, are granted powers. Thus, when the Amendment is invoked, standing alone, the feds simply fall back on their perversion of these clauses and nullify the Amendment.

Unless the separation of power between the States and their federal government is inserted into the game before any discussion of the delegated powers or the Tenth Amendment, the Amendment will continue to be trampled.

That being said, it could be argued that the Amendment is a re-statement of the truism that forms the foundation of the Constitution.

In a speech at Independence Hall in October of 1787, James Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted:

"It will be proper…to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve…if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved.

This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press…what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? * * [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent."

Since the federal government would be granted limited enumerated powers, every power not granted would be denied irrespective of whether the document contained a bill of rights. As explained by Wilson, the omission of a bill of rights was consistent with this system of government.

I have heard a number of people refer to Wilson as the actual father of the constitution, by the way - a leader in its text and drafting, with Madison in the forefront.

Bob - James Wilson seems to be saying in this quote that the people of a State necessarily surrender ALL rights to the State except those they specifically reserve in the state constitutional document. Am I missing something here?

While I completely agree with his sentiment concerning the US Constitution (limited grant of only the enumerated powers), I'm pretty confused by his apparent view of a state constitution which seems to be contrary to my view that governments can only acquire that power which is specifically given to them by the people who form them.

Bob - James Wilson seems to be saying in this quote that the people of a State necessarily surrender ALL rights to the State except those they specifically reserve in the state constitutional document. Am I missing something here?

TDude-we can only guess but this is what I think he meant.

First. He was not referring to individual rights so we can eliminate that from his comment.

Second. He used the word "invested" ...NOT surrendered...meaning a grant of power or to endow with authority or power. So the people were granting power to their State...NOT surrendering power to their State. The only question was the level of this grant of power.

Third. He was simply distinguishing a general grant of power from a limited grant of power.

In a general grant of power, any exceptions must be reserved or they are presumed to have been granted.

In a grant of limited power, there is no need to reserve power because any power not granted is denied.

In either case, there is no surrender of power because those who grant the power can take it back.

When you boil it all down, the reason it's a "false truism" is because it doesn't apply anymore. Article VI establishes that only laws made pursuant to the constitution are supreme. The tenth amendment reinforces this doctrine in explicit terms, reserving powers not delegated to the U.S., nor prohibited to the States, to the States and to the People respectively. The fourteenth amendment supersedes both provisions and everything surrounding them. That is the way the courts and federal Congress view it. That is the way many States and their citizens view it. End of story.

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  1. [...] X: The False Truism Posted on August 27, 2010 by Bill Miller This article by Connor Boyack on TenthAmendmentCenter.com. If the denial to the federal government of any undelegated power is indeed a truism, then why has [...]

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