I’ve been told that law students prepping for the Bar Exam are told that if the Tenth Amendment is ever among the answers on a multiple-choice question, they can immediately rule it out.
For the “experts” and politicians – the Tenth Amendment is never the right answer.
And people with power – love it that way.
Thomas Jefferson had a little different view of the Tenth Amendment. He called it the “foundation 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.’ To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”
The Tenth Amendment makes it unquestioningly clear that the Constitution constrains the general government to very specific and very limited powers. As James Madison explained in Federalist #45, “The powers delegated to the federal government by the proposed Constitution are few and defined.”
James Wilson told us that “every thing which is not given, is reserved.”
That’s the dirty little secret politicians don’t want you to know.
John Jay – the first Chief Justice – described things this way:
“The Constitution only serves to point out that part of the people’s business, which they think proper by it to refer to the management of the persons therein designated.“
That’s nowhere close to what how things operate in practice today – the largest government in history.
Now – brace yourself. This might come as a shock. But the people in power are perfectly happy to operate with an undefined, boundless field of power.
The founders referred to this as “arbitrary power” – one of the “injuries and usurpations” listed in the Declaration of Independence.
And that’s why the Tenth Amendment is never the right answer according to the politicians, and the academics, judges, power brokers, lobbyists, and talking heads that support them.
Before the ink was even dry on the Constitution, the political class was already “interpreting” the document to expand its own powers. For example, by changing the meaning of the word “necessary” into merely “convenient” for federal power, Alexander Hamilton got his first national bank. And we’re all paying the price for it too.
Today, that federal government controls nearly every aspect of your life. It runs your healthcare, educates your children and monitors your every move. Bureaucrats in Washington D.C. even tell you how much water you can flush down your toilets.
So much for powers “few and defined.”
Sadly, most Americans accept this state of affairs. They even embrace it. In fact, most Americans actually believe that the federal government legitimately exercises all of this authority. After all, they’ve been taught that the Tenth Amendment is the wrong answer all of their lives.
The nature of the American political system today exacerbates the expansion of power. “Democracy” gives everybody the false sense that they have some hand in exercising power – or that they will at least benefit from its expansion.
This creates a dilemma, as political economist Bertrand de Jouvenel explained.
“Under the ‘ancient regime,’ society’s moving spirits, who had, as they knew, no chance of a share in Power, were quick to denounce its smallest encroachment. Now, on the other hand, when everyone is potentially a minister, no one is concerned to cut down an office to which he aspires one day himself, or to put sand in a machine which he means to use himself when his turn comes. Hence, it is that there is in the political circles of a modern society a wide complicity in the extension of Power.”
A written constitution was meant to lay down rules that check the tendency for government to grow. It erects barriers to government power that must not be crossed.
As Jefferson put it, “In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”
As John Hancock put it, “The powers reserved by the people render them secure.”
But like most things, a constitution won’t ever work if the people don’t know how to use it.
While we do a significant amount of work to help reach and teach people about the original, legal meaning of the Constitution – based in principles from the Revolution – “how to use it” is probably our most important work.
But for far too long politicians, bureaucrats, judges, law professors, and chattering pundits have told us how the Constitution should work – instead of the other way around. The political class has “interpreted” the rules. And it’s interpreted to give them more and more power over you and me.
They teach us from day one that the way to keep the government in check is to convince the government to keep itself in check.
Thomas Jefferson warned us how that would play out, noting that allowing the government to determine the extent of its own power would put the people of the several states “under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”
After generations of interpretation by the people in power – just like Jefferson warned, we now have a federal government that claims the authority to do virtually anything and everything. Along the way, our liberties have been whittled away. The power of the politicians grows at the expense of our liberties.
If we want to reclaim our liberties, something has got to give. It’s time for dis-interpretation. It’s time for “we the people” to reclaim their own Constitution and their own liberty.
To do that, we have to look at the Constitution through the eyes of the generation who wrote and ratified it.
We have to follow Jefferson’s admonition and “carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”
And then we have to follow what the founders told us has to be done to keep the government in check when it refuses to follow the rules. Today, of course, that’s 24/7/365
James Madison told us that states and individuals should use a “refusal to cooperate with officers of the Union.”
James Iredell – one of the first Supreme Court Justices – told us that the ONLY way to deal with usurpations of power is through “the inherent right of the people to prevent its exercise.”
Not just a mere good idea – but the only way to deal with federal overreach.
And Jefferson said, “Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”
Also, not just a mere suggestion to try after everything else fails – but THE rightful remedy to all undelegated power.
This is the real Constitution that the politicians don’t want you to know about.
The one where the people of the states themselves determine the limits of federal power. The one where the people of the states themselves enforce the constitution through non-compliance and resistance. The one where no one who violates their oath of office is given support.
As John Dickinson put it, when there’s a “bad administration” (which we sure do have) – the answer is to be found “before the supreme sovereignty of the people.”
“IT IS THEIR DUTY TO WATCH, AND THEIR RIGHT TO TAKE CARE, THAT THE CONSTITUTION BE PRESERVED; Or in the Roman phrase on perilous occasions—TO PROVIDE, THAT THE REPUBLIC RECEIVE NO DAMAGE.”
(yes, he used the all caps in the original!)
In other words, in the American political system, as originally conceived, the Tenth Amendment is always the right answer.
We’ve got a lot of work to do – but with your support, we’re building a strong foundation for today and the future.
Brick by brick. Person by person. State by state: For the constitution and liberty.
EDITOR’S NOTE: Michael Boldin contributed to this article, which has been adapted from the introduction of Maharrey’s book “Constitution – Owner’s Manual: The Real Constitution the Politicians Don’t Want You to Know About.“
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