How important is the Tenth Amendment to modern Americans? Not terribly, according to a recent Internet poll.
An April 2016 YouGov online poll of one thousand random respondents asked, among other questions, “Which Amendment to the Constitution do you think is the most important?”
Only 4 percent of respondents across all demographics picked the Tenth Amendment, while most respondents thought the First Amendment was most important (41 percent), followed by an answer of ‘Not Sure’ (16 percent). The Second Amendment took 15 percent, followed by the Ninth (ensures that the list of protected rights in the Constitution cannot be used to deny other rights) with ten percent. The Fourth Amendment came in just ahead of the Tenth, at 5 percent.
Thomas Jefferson called the Tenth Amendment the cornerstone of the Constitution.
“I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.”
So what happened? Why don’t most Americans consider the Tenth Amendment important? Are they just deficient in their knowledge of the purpose of the Tenth? Or have we simply been gradually steered away from understanding the significance and importance of the decentralized nature of the system created of our founding fathers?
A Bit of History
During the fierce Constitutional debates Anti-Federalists opposing the Constitution voiced concerns that the proposed Constitution’s “consolidated government […] squint[ed] toward monarchy,” as Patrick Henry put it. As leader of the Anti-Federalists, Henry gave voice to their fears in his 1788 ‘Shall Liberty or Empire Be Sought?’ speech (emphasis added):
“If we admit this consolidated government, it will be because we like a great, splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things. When the American spirit was in its youth, the language of America was different; liberty, sir, was then the primary object […]
This Constitution is said to have beautiful features; but when I come to examine these features, sir, they appear to me horribly frightful. Among other deformities, it has an awful squinting; it squints toward monarchy, and does not this raise indignation in the breast of every true American? Your president may easily become king. Your Senate is so imperfectly constructed that your dearest rights may be sacrificed to what may be a small minority; and a very small minority may continue for ever unchangeably this government, altho horridly defective. Where are your checks in this government?”
Almost immediately after the Declaration of Independence, the Second Continental Congress drafted America’s first constitution – the Articles of Confederation. The Articles established a ‘firm league of friendship’ between the states, creating a functioning (even at first, while the Articles were unratified) confederation government until the 1789 ratification of the new Constitution. Some Anti-Federalists saw no good reason to change the way they had been governed for almost thirteen years by the Articles, and resisted the proposal of a new constitution. In the same speech referenced above, Henry cited the success of the loose government formed by the Articles, and conversely warned of possible unknown dangers resulting from a restructuring and strengthening of the central government (emphasis added):
“Consider our situation, sir; go to the poor man and ask him what he does. He will inform you that he enjoys the fruits of his labor, under his own fig tree, with his wife and children around him, in peace and security. Go to every other member of society; you will find the same tranquil ease and content; you will find no alarms or disturbances. Why, then, tell us of danger, to terrify us into an adoption of this new form of government? And yet who knows the dangers that this new system may produce? They are out of sight of the common people; they can not foresee latent consequences.“
Henry and the Anti-Federalists saw the new Constitution as a threat to true federalism – a move toward the same sort of centralized tyranny they had just fought a war to overthrow.
Birth of the Bill of Rights
In order to overcome the resistance to the new Constitution, supporters promised they would consider a Bill of Rights after ratification. James Madison followed through on the promise, drafting what would become the Bill of Rights.
This seemed superfluous to many of the Federalists, and they contended that these buttresses were already implicit in the Constitution. This new government, they said, was obviously designed to be restricted by the Constitution’s enumerated (listed) powers. In Federalist 84, Alexander Hamilton gave an excellent argument against adding a Bill of Rights, insisting that such amendments would not only be unnecessary, but also dangerous: their very existence, he said, might be construed as being the only firm restrictions on the central government (emphasis added):
“Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations…I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.“
The ratified Ninth Amendment would become an answer to Hamilton’s ‘the proposed constitution would be dangerous’ worries, The addition of the Ninth was an attempt to ensure that no one would misconstrue the Bill of Rights as being the only rights that are protected by the Constitution:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Despite Hamilton’s and other Federalists’’ misgivings, the Bill of Rights was ratified and became the first ten amendments to the Constitution, thereby leaving no doubt that certain critical, natural rights were meant to be forever protected from the central government’s possible infringement.
What Did the States Think?
The Tenth Amendment was intended to reinforce what the Federalists thought already obvious – that the Constitution contained a finite list of powers delegated to the general government by the states, and that the states and their people retained ALL other residual powers.
The ratified Bill of Rights places the Ninth and Tenth Amendments at the end of the list, perhaps as summary reminders that then enumerated rights were only meant to reinforce what should already be obvious from the essence of the Constitution. However, according to Brion McClanahan in The Founding Fathers’ Guide to the Constitution, the majority of the states submitted their individual proposals for the Bill of Rights in a different order. Interestingly, they placed the Tenth Amendment, followed immediately by the Ninth, at the top of the list, not the bottom. This may well be evidence that preventing misconstruction of the other Amendments was a primary concern, and that explicitly declaring (even though they may have thought it already obvious) that only limited, listed powers had been granted to the central government was the foremost thought in their minds.
Since the founders placed such a high importance on virtually unlimited state powers – the essence of the Tenth (regardless of whether they thought it necessary in a Bill of Rights or not) – then how can so many modern Americans be indifferent or ignorant about it today?
A gravitational drift over time toward centralized power has taken place as many presidents, congressmembers and judges have seized opportunity after opportunity to maximize federal authority.
The Incorporation Doctrine: Steam for a Runaway Train
The Incorporation Doctrine is a judicial ideology whereby most of the first eight Amendments to the Constitution, originally intended to restrict only the general government (and not the states) are applied to and enforced legally upon the states. This opinion has been implemented with increasing frequency by the Supreme Court since the early twentieth century, and is based on Section I of the Fourteenth Amendment. The Fourteenth Amendment, ratified in 1868, is one of the post-Civil War Reconstruction Amendments. Section I contains the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause – all arguably intended simply to ensure that the natural rights (mainly rights to life, liberty, and property) of newly-freed slaves were not ignored:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Was the Fourteenth Amendment intended to restrict the States? Yes, it was – the states are restricted by the Fourteenth in the sense that they can’t apply their civil laws differently to one person (or class of persons) than to another. The proposal and ratification of the Amendment was an attempt to permanently guarantee basic rights for blacks by codifying the Civil Rights Act of 1866 into the Constitution. The Civil Rights Act had effectively destroyed the Black Codes – laws that were passed by Southern states immediately after the War which severely suppressed the rights of blacks. The Black Code laws had denied freed slaves their fundamental rights such as owning firearms or testifying against whites in court, and also limited other basic rights like owning property and traveling.
Misinterpreting and Misapplying the Fourteenth
Was the Fourteenth Amendment intended to force the Bill of Rights upon the states in a sweeping departure from their founding principles of federalism? Although the ratification of the Amendment itself was questionable, (the former Confederate states’ congressional representation was effectively held hostage until they agreed to ratify the Amendment), there seems to be no good evidence that the framers of the Amendment had intended that the states give up any civil legislative autonomy. Rather, the assumption seems to have been that the states would agree to simply apply their local civil laws fairly and equally to blacks, as they did with whites. The Supreme Court made no attempt to rule contrary to this understanding until 1925.
Gitlow v. New York
In 1920 Socialist Benjamin Gitlow was charged with criminal anarchy in his home state of New York for publishing his Left Wing Manifesto. He was convicted, but his case was appealed by the ACLU to the U.S. Supreme Court. The Court decided, based on the Fourteenth Amendment, it possessed the authority to adjudicate whether or not a state had violated the First Amendment. The Court then reviewed the case and upheld New York state’s previous rulings in 1925 (the Court’s decision is immaterial to this discussion – the fact that the Court heard the case at all is important). Since then, the Fourteenth has been evoked countless times as license to hold states subject to the restrictions found in the Bill of Rights – and the Court’s (mis)applications of the Amendment seems to be drifting further and further from the Fourteenth’s original intentions (see Roe v. Wade, McDonald v. Chicago and Obergefell v. Hodges) .
In light of these consistent misapplications of the Fourteenth Amendment under the Incorporation Doctrine, it makes sense that many, if not most Americans today, have a dim view of the Tenth Amendment – as if it were a relic from our past and not very applicable today.
What, then, can be done to promote a good understanding of the meaning and importance of the Tenth Amendment in particular, and also the decentralized, federal nature of our founding in general? Reading and sharing articles like this one may be a good start. A segment of Americans now seem to be very interested in learning the fundamentals of America’s founding heritage – and we can capitalize on that interest by discussing, debating, and teaching the basics in person, on social media, and in blog posts.
The founders labored to create the best constitutional federal republic possible – but they were painfully aware that it could only survive if properly defended and maintained. Patrick Henry expressed the wish that his efforts to secure American liberties be remembered by us (emphasis added):
“The voice of tradition, I trust, will inform posterity of our struggles for freedom. If our descendants be worthy the name of Americans they will preserve and hand down to their latest posterity the transactions of the present times; and tho I confess my exclamations are not worthy the hearing, they will see that I have done my utmost to preserve their liberty…”
Motivated by those words and the knowledge of the sacrifices made, let’s do what we can to reverse the steady erosion of our liberties and restore our founding principles of limited, decentralized government.