The Federalist Society proudly presents Professor Kurt Lash, University of Illinois, as he visits The Ohio State University Moritz College of Law for a discussion on “The 9th and 10th Amendments and the Relationship between Federal and State Governments.” August 26, 2010.
How do we determine the meaning of the Constitution? Where do we ultimately find the authoritative source for original understanding? Do we look to the Supreme Court? To the Federalist Papers? To notes from the Philadelphia Convention?
Actually, we should look to the ratifiers. They were the ones who represented the people and agreed to approve the Constitution. Jefferson affirmed this idea.
“On every question of construction let us 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.”
This video, with narration from the audio version of Our Last Hope: Rediscovering the Lost Path to Liberty, explains this idea in more depth.
In a day and age when the federal government is despised, out-of-control and has so many laws on the books that it makes your head spin, there is at least one ‘conservative’ who is concerned that the federal government isn’t dishing out enough law and order.
In a recent post at the conservative legal blog Volokh Conspiracy, Todd Zywicki finds it appalling that the Department of Justice is celebrating the fact that the Defense of Marriage Act was declared unconstitutional by the Supreme Court. He doesn’t feel this way because of his opinion on DOMA, but rather he is concerned that the law is being disrespected by the Obama administration.
“I am clearly not alone in being concerned about the unwillingness of state and federal officials to defend the duly-enacted laws of their states. Indeed, refusing to defend the law and acquiescing in an adverse judgment against it seems tantamount to a retroactive veto by the Executive Branch. If Eric Holder is ‘delighted’ that the law is invalid, wouldn’t the appropriate response in our system of government be for the President to propose the repeal of the law with which he disagrees, rather than effectively retroactively vetoing it?”
Zywicki has a point about the law being disrespected by the Obama administration. From drone murders, to illegal surveillance, to arming drug gangs as a pretense to curtail gun rights, to funding Islamic extremist dictators, the Obama administration has made a complete mockery of the rule of law in America. But the recent DOMA ruling isn’t the case to complain about. Whether you support the decision or not, the idea of state non-compliance with federal laws shouldn’t be on trial here. The problem with our country clearly isn’t the fact that too many states have rebelled against the edicts of the federal government. On the contrary, it has been the states routinely jumping into the federal snake pit that has gotten us into this mess.Details
This coming Thursday, many of us will have a day off from work and be home to have a barbecue, watch the fireworks and proudly fly our American flag.
This uniquely American holiday is a time to reflect on the greatness of our Nation and its people.
However, it is not really a time to celebrate as “Americans”. It is a time to celebrate as sovereign people of the States. The Fourth of July was the day (it was actually a few days earlier) the people of the thirteen colonies through their representatives in the Congress, declared to the world that they were now independent and free States. Free from the King and Parliament and a centralized government. However, it would take a long and bloody war to actually permit these newly independent Sates to remain free.
The Declaration of Independence was signed by men who knew they were risking their “Lives, fortunes and sacred honor”. According to the King, they were all traitors who warranted death.
When the war finally came to a successful end the King and Parliament had no choice but to declare that the thirteen States were now free. The first Article of the Treaty of Paris that ended the war stated:Details
NOTE: This is the first of several short commentaries on recent Supreme Court decisions.
The Supreme Court recently ruled that portions of Arizona’s immigration law violate federal statutes. In his dissent, Justice Thomas relied heavily on my own research.
The Independence Institute did not participate in that case. So how did it happen that I was cited? In 2010 the University of Pennsylvania Journal of Constitutional Law published my article on the original meaning of a constitutional provision relevant to the decision. The provision is Article I, Section 4—which the Court called the “Elections Clause,” but is more accurately entitled the “Times, Places and Manner Clause.” The Clause provides that the states may regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” but that Congress may override most of these regulations.
In the article, I discuss exactly what the Founders meant by the phrase “Times, Places and Manner of holding Elections,” and how Congress’s power over its own elections should be interpreted.
The recent case involved whether Arizona’s requirement that voters show proof of citizenship when registering to vote violated federal law. The Court had to decide how widely to read a federal statute and how widely to read Congress’s authority under the Times, Places and Manner Clause.Details
On June 27-28, 1787, for over three hours, Luther Martin, Maryland’s Attorney General and delegate, objected vehemently on the floor of the Constitutional Convention. Transcripts of Mr. Martin’s remarks were recorded into history by Robert Yates (NY) and James Madison (VA). Madison was author of the Virginia plan, which Mr. Martin vigorously debated at regular intervals throughout the Convention.
Upon his arrival at the Philadelphia Convention, Luther Martin pondered possible remedies, as was his charge, to amend the Articles of Confederation, ratified and adopted March 1, 1781. An air of mystery presided over the statehouse, as the founders and framers conducted the work of the Grand Convention.
Mr. Martin reflected on his arrival to the Convention, on June 9, 1787, in a speech given to the Maryland Delegation on November 29 of that same year.
When I joined the Convention I found that Mr. Randolph, of Virginia, had laid before the Body certain propositions (the Virginia Plan) for their consideration, and that the Convention had entered into many Resolutions, respecting the manner of conducting Business, one of which was that seven states might proceed to Business, and therefore four states composing a Majority of seven, might eventually give the Law to the whole Union.
Different instructions were given to Members of different states – The delegates from Delaware were instructed not to infringe on their Local Constitution – others were prohibited their assent to any duty in Commerce: the Convention enjoined all to secrecy; so that we had no opportunity of gaining information by a Correspondence with others; and what was still more inconvenient, extracts from their own Journals were prohibited even for our own information.
One of the critical issues debated after the introduction of the Virginia Plan was the distinction between the differing types of general governments, particularly a federation and a national government. A federation exists by a compact, or contract, resting upon the good faith of the states, contrasted with a national government exercising complete control over the operation of the states. The nationalist position of the Virginia Plan was repulsive to many delegates, including Mr. Martin, who opposed the prospect of a central government. He argued it would consume the sovereignty of the states.
Beginning his remarks on the floor of the Constitutional Convention, Mr. Martin addressed the function of a general government.Details
The Tenth Amendment wasn’t really necessary.
Wow! A pretty shocking statement from somebody who works for the Tenth Amendment Center, huh?
But it’s true.
Because the Tenth Amendment, along with its partner the Ninth Amendment, don’t really DO anything. In fact, if those two amendments didn’t exist, the Constitution would remain unchanged. The federal government would still operate with only a few delegated powers, and all other power would still remain with the states and the people.
The Ninth and Tenth Amendments are “rules of construction.” In other words, they tell us how to read the original document. They don’t add anything to the Constitution, and they don’t take anything away. The Ninth and Tenth simply make explicit what was already implicit in the original construction of our founding document.
The enumeration of specific powers in Article 1 Sec. 8 (along with the other delegated powers sprinkled through the rest of the Constitution) naturally preclude the federal government from exercising any other powers. In fact, many in the founding era didn’t see the point of including the Ninth or Tenth Amendments, or even a Bill of Rights, arguing that it was self-evident that enumeration excluded any other authority – Designato unius est exclusio alterius – a legal maxim meaning, “the designation of one is the exclusion of the other.”Details
by Jon Roland, Constitution Society Ultimately it came from the legal tradition of England and Scotland, expressed in a number of key enactments, in court opinions, and in the commentaries of legal scholars like Edward Coke and William Blackstone. But the most direct sources were the constitutions adopted by the 13 states after they declared…Details
The “winners” write the history, and always in favor of their side of the “argument”.
Government’s job is to “control” the people. Control takes power and power comes at a price: the people’s liberty. In a nutshell, government power stands as the enemy of liberty. And when it comes to the war between power and liberty, power generally triumphs.
And government writes our history.
Most people allow the government to educate their children and that means they learn the approved government version of history. Sadly, it is totally corrupt. Few Americans realize it and can’t, or wont, correct the mistake.
I will try to help correct a piece of the disinformation surrounding the 10th Amendment and put it all into the correct perspective for you.
We’ve watched government trample on the Constitution throughout most of our recent history. We do not have to look very far to see examples. President Bush’s Administration created the The Patriot Act, anything but patriotic. Throughout his terms in office, Bush completely disregarded what the Constitution said and wielded the arms of war with wanton disregard.
President Obama continues in the same vein with more anti-constitutional measures. When Congress does not do what Obama wants he creates Executive Orders with the force of law. Effectively legislating from the White House and overstepping his constitutional boundaries without any regard to the laws our country.
Our Constitution is a document designed to LIMIT the power of the federal government. It enumerates the exact duties, responsibilities and powers of each branch of the federal government. In other words, the federal government ONLY has the powers over things that are specifically spelled out in the Constitution. ALL OTHER POWERS are reserved for the states and people. This is succinctly spelled out in the 10th Amendment.
“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.”