The People Amendments

​

To claim, as many have, that the states' rights perspective was the position that was most favored in the burgeoning democracy known as America is to make an assertion which is both somewhat misleading and possibly even incorrect. The misleading aspect of such a claim is rooted in the fact that the idea of 'states' rights' is ambiguous because the phrase is unclear as to whether it means that one champions the rights of those officials who govern a state or that one is championing the rights of the people who live in that state. The two are not necessarily coextensive as all too many people have discovered over the years. This point alludes to the nature of the possibly incorrect dimension of those claims which suggest that the states' rights position was the perspective which enjoyed the most support among the people of young America.

​

More specifically, the people who gathered on a 'continental' level to discuss, draft, and formalize documents that would come to constitute the rule of law for the new country [and this was usually between 50 and 100 people] were but a small percentage of the people who lived in the thirteen states. To be sure, each of the thirteen colonies/states supplied more participants for the constitutional forging process, but only a few of the overall total of individuals served as representatives to the national assemblies. Moreover, the discussions which occurred in the states not only took place among a relatively limited number of people, but, as well, many, if not most, of these individuals consisted of lawyers, landowners, rich merchants, and other categories of an elite who presumed that they had the right to form governments which would control the lives of people who were not rich, or who were not landowners, or who were not part of the 'power elite' which had begun to form from the earliest days of America.

​

There were many people among both the power elite and the disenfranchised settlers who were distrustful of government - any kind of government. Indeed, many people came to America for an opportunity to escape the oppressive systems of monarchal governments in Europe, and they were not interested in replacing the old form of monarchy with a new form of monarchy in which some people got to tell others what the latter could and could not do.

​

Consequently, when one is talking about the championing of states' rights, different things are understood by this phrase depending on who one is considering. For example, even though Patrick Henry had been invited to attend the Philadelphia sessions where the Articles of Confederation were only supposed to be amended -- but, were instead, thrown out and a new document, called the Constitution, was drawn up through the politicking of such people as Madison and Hamilton -- Patrick Henry declined the invitation because he smelled the rat of a 'new monarchy' being established through such proceedings and did not want to be a part of the process, and, Patrick Henry was not alone in his critical rejection of what was transpiring in the different Continental and Constitutional conventions.

​

Some people view the 1798 confrontation between President Adams and Thomas Jefferson as being about differences over the exact nature of the sort of federalism that would exist in the United States. Would there be a form of federalism in which the central, federal government would have supremacy relative to the powers of the states, or would there be a kind of federalism in which the central, federal government would be constrained by, and subject to, the interests of the respective states?

​

When President Adams was able to successfully persuade enough people in Congress that it was necessary to pass a law on sedition which would empower the President to have people thrown into prison for criticizing his government's abuses of power, Jefferson clashed with President Adams over this issue. Many commentators have labeled this conflict as one of states' rights versus federal rights and believed that states' rights won the day when, eventually, President Adams' Federalist Party lost the election 1800 to the so-called Jeffersonian revolution.

​

However, it was not states that were thrown into prison by President Adams for criticizing his government and officials. Individuals were the ones who were being oppressed by the new law of the land, and, consequently, the imprisoning of those who were allied with Jefferson was not just an attempt to deny the rights of states, it also was an attempt to suppress the rights of individuals ... rights which already had been guaranteed - theoretically - through the Bill of Rights.

​

During the period of opposition to President Adams, Jefferson ghost-wrote the Kentucky Resolutions of 1798 and stated that:

​

"The several States composing the United States of America are not united on the principle of unlimited submission to their General Government."

​

One could conjecture that the reason Jefferson ghost - wrote the documents might have been because he feared being imprisoned if he were to author the resolutions under his own name or because, in a bit of political maneuvering, he wished to give the impression that there were untold others who agreed with his position on states' rights and who might be responsible for issuing the Kentucky resolutions, or perhaps, it was a combination of both such motivations. In any event, once again, there is an ambiguity implicit in what Jefferson is actually saying when he wrote that:

​

"The several States composing the United States of America are not united on the principle of unlimited submission to their General Government."

​

Is Jefferson saying that the 'ruling elites' of the several states do not agree with the idea that there should be unlimited submission to the federal government by the various ruling elites in the different states, or is he saying that the people who live in the "several states", and quite independently of the ruling elite of those states, do not agree to the idea of "unlimited submission to their General Government", or is he saying a bit of both?

​

It is clear that not all three possibilities are necessarily synonymous with one another. Indeed, for many, a state government is just another version of the federal government in which centralized government seeks to gain control over the lives of the people, and, therefore, when someone champions states' rights one cannot be sure whether the latter person is seeking to secure rights for all the individuals living in those states or whether a so-called 'champion of states' rights' is seeking to secure rights for just members of the ruling elite within those states and uses the cry of 'states' rights' to induce the general population to believe that the rights of the little people are being fought for when, in truth, it is only the rights of the ruling elite which are being defended. This kind of duplicity has been in the politician's bag of tricks for centuries.

​

One would hope that Jefferson intended to include all the people of the several states into his notion of states' rights and that he was not simply fighting for the power elite of those states. But, if the foregoing is not what Jefferson meant, this is what he should have meant if he had thought about the matter correctly.

​

Whatever Jefferson's real position may have been, there were all too many individuals who treated states' rights as a license for the power elites to do whatever they liked in their respective states. If this meant supporting the slave trade, or stealing the lands of Native peoples, or denying women equal rights, or exploiting the general population in order to further their agendas, or running roughshod over labor movements, or despoiling the environment, then, this is what was entailed by states' rights.

​

People who thought in this manner never really understood the nature of the Bill of Rights except to the extent that those ten amendments were supposed to protect their interests quite irrespective of whether they secured the rights of anyone outside of the circles of power in which these noble champions of states' rights existed. Apparently, "We the people" only meant some of the people. "We the people" only referred to those who were the chosen ones of God to discuss, draft, formalize, and ratify such rights and liberties.

​

In theory, these rights and liberties could be extended to everyone. However, in practice, such rights and liberties were often considered to belong properly only to members of the power elite.

​

Like President Adams in 1798, the champions of states' rights who thought in this fashion considered anyone who was not willing to go along with the idea of "unlimited submission to the general government" (in this case the state central government) were considered to be guilty of sedition and treason to the vested interests of the power elite. As such, the idea of states' rights meant the capacity of states to use the force of law - and, if necessary, physical force -- to compel and intimidate people into complying with certain arrangements of life that were drawn up by the power elite to be imposed upon the citizens of a given state whether those citizens liked such arrangements or not.

​

When the 1787 draft of the Constitution was circulated among the various states, the different state conventions which were called to consider ratifying that document had numerous concerns about what kind of power the central government would be able to exert over the people of a given state. In fact, following the lead of Massachusetts, every state convention proposed a list of possible amendments to give expression to their concerns about the abuses of power, and every one of these lists contained some form of what is now known as the Tenth Amendment.

​

Federalists - such as James Madison, Alexander Hamilton, and James Wilson - argued that there wasn't any need for an amendment which addressed the issue of reserving powers to the states or to the people. For example, in entry 45 of The Federalist, Madison argued that under the Constitution a federal government would actually possess only a few powers and that these were focused primarily on issues such as war, negotiation of treaties, and foreign commerce, whereas a vast array of powers were reserved to the states that encompassed practical issues of significance to the everyday concerns of people involving life, liberty and property, as well as matters focusing on the internal order and enhancement of a state's welfare. Moreover, during entry 46 of The Federalist, Madison, once again, gave emphasis to the separation of powers doctrine when he argued that state and federal governments were actually merely different modalities of trustees or agents for the people who were invested with different powers that were intended to serve the people in complementary ways.

​

While it may be true from the perspective of federalist political philosophy that state and federal governments were intended to serve as various kinds of trustees for the people, provided with different powers that were designed for an array of complementary purposes, this is not the same thing as saying that the people could have an independent standing within the Constitution which cannot be reduced down to what the two levels of government do or do not do as trustees and agents of the people. In fact, the people should have rights and powers - beyond that of voting -- which protect them against the failure of governments to competently or morally exercise their fiduciary responsibility and position of trust in relation to the people, and this is precisely what the Ninth and Tenth Amendment are intended to accomplish. The Ninth Amendment states:

​

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

​

The Tenth Amendment indicates that:

​

"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."

​

Although some people are mystified about why the Ninth and Tenth Amendments should even be considered to be necessary, there is a logic underlying their presence in the amended Constitution. More specifically, when the idea of a Bill of Rights first arose as a subject of discussion, one of the primary objections to enshrining specific protections in the Constitution was that by itemizing a specific list of rights against which governments could not transgress, some individuals felt that this would leave open the possibility that any number of other rights which had not been so itemized would not be protected. The Ninth Amendment was introduced in order to close the door on such a possibility.

​

When the idea of the Ninth Amendment was introduced, a method had not, yet, been developed which actually was capable of enforcing either the Ninth Amendment or any of the other amendments making up the Bill of Rights. Indeed, before the Supreme Court had come up with the idea of a right to strike down legislation as being unconstitutional, the Bill of Rights -- including the Ninth and Tenth Amendments - seemed to be little more than a promissory note on the part of centralized government indicating that it would not trespass in the areas specified by the Bill of Rights.

​

In reality, however, even before and notwithstanding the aforementioned epiphany at the Supreme Court, the power of enforcement with respect to the Bill of Rights has always belonged to the people. The people were not, and are not, dependent on the Supreme Court to enforce their rights, although the authority of the Supreme Court in supporting the people's rights obviously is an asset ... just as the Supreme Court's opposition to the aspirations of the people to be able to exercise their Ninth and Tenth Amendment rights is an impediment to the enjoyment of such alleged powers.

​

The Declaration of Independence has clearly drawn the line in the sand when it comes to the struggle between people and governments. If governments seek to oppress their people, then the people have the right to make their grievances known, and if these grievances are not acted upon and redressed, then, the people have the right - nay, the duty -- to abolish those governments which are intent upon oppression of the people.

​

Although the Federalists believed adding amendments to the Constitution that protected the rights of people was largely unnecessary, they finally came to a position which was willing to accede to the presence of such amendments in the Constitution as something that appeared to be relatively benign, even if unnecessary, in order to be able to attain ratification of the Constitution from the various states. Consequently, Madison included the idea of a reserved powers clause among the amendments he proposed in 1789.

​

Alexander Hamilton, another Federalist, was of the opinion that the idea of having to specify some kind of reserved powers clause within an amendment to the Constitution was something of a tautology because such a reserved clause concerned a principle that he believed was already inherent in the very idea of republican government. In other words, he maintained that the very essence of republican government entailed the right of states to be free of Congressional interference in matters such as education, securing the general welfare of the people, morality, and health. Consequently, he was not so much opposed to the principles inherent in what would become the Tenth Amendment as he was resistant to the perception of those who believed it was necessary to specify such a principle either within the Constitution or in an amendment to the Constitution.

​

One wonders, however, why either Madison or Hamilton - or any of the other Federalists -- would have assumed that everyone else would have understood or pursued the idea of republican government in the same way they did. More importantly, one wonders why even after all of the state conventions expressed concerns about the matter, the Federalists continued to argue for the idea that there was no need to specify such protections either within the Constitution or in amendments to the Constitution. Why were they so resistant to the idea that part of what constituted republican government should be spelled out?

​

The Federalists were in favor of abolishing the Articles of Confederation and replacing them with a new Constitution. The Federalists disliked the Articles of Confederation because the document was written in a way which permitted power to be largely distributed among the thirteen states of the Confederation. By contrast, the new constitution which they sought would considerably enhance the power of the national government over the states. For instance, under the Articles of Confederation, the federal government could not levy and collect taxes in order to be able to fund its programs.

​

In any event, despite the fact that members of the various state ratifying conventions were informing the Federalists that the former individuals did not see the issue of a "reserved clause" as a tautology, and despite the fact that the members of the various state ratifying conventions were warning the Federalists about a potential for abuse of power in the Constitution as drafted, and despite the fact that members of the various state ratifying conventions were insisting there was a necessity for the introduction of specific additional protections against the powers of a central government, the Federalists continued to resist and argue against what they were being told by the members of the different state ratifying conventions. One suspects that something more was involved than just the Federalist perception that such protections were tautological or unnecessary.

​

A number of draft amendments were proposed by different individuals and put forward for consideration. Significantly, one of the drafts of what became known as the Tenth Amendment and which was discussed in the House of Representatives on August 18, 1789 stated:

​

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

​

The phrase "or to the people" did not appear in this draft of the Tenth Amendment (which, at the time, was referred to as the Twelfth Amendment). Moreover, a great deal of the discussion over the proposed amendment revolved about a suggestion from George Tucker to add the word "expressly" to the text of the amendment so that it would read: "powers not expressly delegated by the Constitution." Madison was adamantly opposed to the idea of introducing the word "expressly" into the amendment.

​

During the discussion, one of the first amendments proposed by Madison had been to suggest the statement "all power is originally vested in, and consequently derived from, the people" be added as a prefix to the Constitution. George Tucker countered by suggesting a variation on Madison's idea - namely, that "all powers being derived from the people" should be added. Furthermore, Tucker suggested that this be introduced at the beginning of what was to become the Tenth Amendment.

​

The Committee of the Whole House rejected both of these proposals. Eventually, Roger Sherman of Connecticut suggested that the phrase "or to the people" be added to the text of what would become the Tenth Amendment, and his proposal was adopted without objection or debate although one can't help but wonder what sorts of understanding might have been dancing around inside the heads of the participants to the Philadelphia Convention that would have permitted such a suggestion to be adopted without discussion or debate.

​

Roger Sherman also was the individual who brokered what came to be known as 'The Great Compromise" in which the House of Representatives would serve the general population while the Senate would represent the States, and the President would be elected through a body of elite electors. Why Senators should serve the States rather than the people, and why the people, rather than a body of elite electors, should select the President, and why the people couldn't represent themselves through some form of non elected republican self-governance, were all unanswered questions which were left to sink in the wake of 'The Great Compromise.'

​

Whatever the ultimate motivations, beliefs, and ideas of the Federalists may have been, one fact is very clear. The Federalists were completely wrong in their belief that there was no need for the specification of a reserve clause or other protections in conjunction with the Constitution. Indeed, as American history has shown again and again, even with the presence of the provisions of the Bill of Rights, there has been considerable inclination on the part of successive federal governments to encroach upon the rights and powers of the people by means of imperially expansive ideological agendas which are pursued through the power of centralized government.

​

Thomas Jefferson had once described the Tenth Amendment as the very foundation of the Constitution. Jefferson further maintained that: "to take a single step beyond the boundaries thus specially drawn [by the Tenth Amendment] is to take possession of a boundless field of power, no longer susceptible of any definition."

​

The problem with the foregoing is that Jefferson only seemed to have in mind a concern about the potential for abuses of power by the federal government. However, precisely the same kind of concern ought to be directed toward any kind of centralized form of government, including state and local government.

​

If one single step is permitted to governments beyond the boundaries and limits which are drawn up to protect the rights and powers of people, apart from government, then governments - on whatever level -- will seek to take possession of a boundless field of power which is no longer susceptible to any definition which protects the rights of individuals. The Tenth Amendment is not the foundation of the Constitution because it champions states' rights. It is the foundation of the Constitution because it extends to people rights which cannot be circumscribed by any government - local, state, or federal - and because the Tenth Amendment establishes Constitutional standing for the people independent of government activities and, indeed, sometimes in contradistinction to such activities.

​

There is another dimension to the foregoing set of issues. The state conventions which met to consider ratifying the Constitution of 1787 consisted almost exclusively of landowners, people of wealth, lawyers, and those who already possessed considerable power in their respective communities.

​

Women, Blacks, Native Peoples, and the poor were already disenfranchised from the whole process. When people like Madison, Hamilton, and Wilson claimed that there was no need for protections to be specified within the Constitution and that all of this was tautologically present in the idea of republican government, they apparently did not believe that the disenfranchised had any place in such a republican government or that such people needed any protections even as those people were being abused by the power elites who were so nobly participating in their various state conventions, making sure that their own interests were to be protected ... although there were, in fact, some truly noble men among such participants because such individuals were concerned with protecting the rights of more than just the power elites.

​

All too frequently the elected representatives of the people became corrupted, co-opted, or outflanked by the power elites of centralized government - whether at the federal, state or local level. Like ancient Greece, only some of the people in America were entitled to the rights, powers, privileges, and immunities of citizenship, and America soon became - if it wasn't so from the very beginning - the best democracy money could buy.

​

What had transpired - that is, the differences in understanding that arose with respect to the idea of "We the people" -- is what the Federalists (e.g., Madison, Hamilton, and Jay) claimed would never happen ... namely, centralized governments on both the federal and state levels oppressed people and usurped their rights ... the very rights that, for instance, the Ninth and Tenth Amendments were intended to secure and which were hardly truisms and tautologies (as some jurists and government officials have referred to these two amendments, and therefore, were considered by such individuals to be coextensive with the meaning of republicanism, and, therefore, quite unnecessary). The Bill of Rights - including the Ninth and Tenth Amendments - constituted substantive realities that had been betrayed by those seeking to gain control over the people through elected office to state and federal government positions.

​

To some extent, the Fourteenth Amendment (especially the section reading: "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."), that came into being following the Civil War, helped to place constraints on the idea of unlimited states' rights. Moreover, even though the states still possessed various degrees of authority, in theory at least, such authority could not be used to extinguish or diminish the rights of individuals residing within the borders of their respective states.

​

Through the Fourteenth Amendment, the federal government took on something of a fiduciary responsibility with respect to protecting the rights of the citizens of the different states when those state governments sought to oppress their citizens and prevent the latter from enjoying the rights promised to the people in the provisions and principles inherent in the Constitution. Nevertheless, while it is true that the Fourteenth Amendment did help to close a loophole in some of the more tyrannical thinking concerning the extent of states' rights - the fact of the matter is that this constraint on states' rights (as well as the rights of the federal government) already existed in both the Ninth and Tenth Amendments ... but those constraints were not being observed or enforced.

​

Securing the rights of the people is not the exclusive right of the federal government. After all, the people have their own rights, powers, privileges, and immunities under the Ninth and Tenth amendments.

​

While both the federal and state governments can act in a fiduciary capacity with respect to protecting the rights of people against the unjust incursion of government into the lives of citizens, the people, quite independently of the fiduciary activity of government, have the right, under the provisions of the Constitution, to act in their own self-interest in such matters at which time the people have the right to abolish, amplify, or modulate whatever fiduciary acts may have been taken on their behalf by one government or another. Citizens are not wards of the state or the federal government.

​

By permitting a government to work on the behalf of the people in areas which are governed by, or entailed by, the Ninth and Tenth Amendments, citizens do not abdicate and forego those rights. They can reassert those rights at any time, and both the federal government and state government must step aside in such matters except to the extent of assisting the people, or serving as something of a catalytic agent, or helping the people to exercise their various powers and rights which have been established through the principles set forth in the Ninth and Tenth Amendments, or helping to make sure that the exercise of such Ninth and Tenth amendment rights by an individual does not compromise the like rights and powers of other individual citizens.

​

There are some individuals (among them libertarians) who believe that the federal government does not possess the authority to police such activities as -- to name but a few -- drug-related activity, marriage, abortion, gambling, prostitution, and who also believe that the federal government does not possess the authority to prosecute crimes such as tax evasion (the latter is based on the idea that in Article I, Section 8, and in Article III, Section 3 of the Constitution, the federal government only gives express permission to prosecute crimes of piracy, counterfeiting and treason not tax-evasion). According to such individuals, all powers not specifically relegated to the central government by the Constitution or specifically prohibited to the states, is retained by the states.

​

Such a position does not accurately reflect what the Constitution actually states. More specifically, the Tenth Amendment says:

​

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people."

​

While one might agree that the federal government may not have the Constitutional authority to establish policing powers over a variety of individual activities - and more on this in a moment -- nevertheless, it does not necessarily follow that whatever powers which are left over belong to the states. The phrase "or to the people" is not necessarily synonymous with the idea of states.

​

Here again, we meet with an ambiguity. Is the foregoing phrase just another way of referring to the states - that is, are the words "or to the people" an alternative manner of speaking about states' rights or is something else meant ... something extra-governmental and not necessarily reducible to the institution of the state as a legal entity? There are many who would prefer to interpret the Tenth Amendment as referring exclusively to the rights of states as established bodies of government. Yet, a prima facie case can be advanced which is not supportive of such an interpretation, and this argument rests on the fact that the Bill of Rights is about protecting the interests of individuals with respect to the oppressive potential of governments of any kind.

​

As such, what is meant by the idea of the states in the Tenth Amendment is - contrary to the opinion of many people -- actually another way of talking about the rights of the people who live in those states as opposed to the institutions which comprise the governments in those states. The purpose of the Tenth Amendment is not to secure the rights of centers of power or ruling elites but, rather, to secure the rights of individual citizens.

​

In a democracy, ultimate rights and powers belong to the people and not to the government, and the latter are formed and operate only through the permission of, and in accordance with, the complete consent of the people. One would not have a democracy if the powers not delegated to the federal government nor prohibited to the state governments were reserved for anyone else but the people.

​

The Tenth Amendment confirms this idea of democracy in two ways. The first way is to refer to states meant in the sense of the powers of a collectivity of individuals residing within a given geographical area rather than meant in the sense of a set of governing institutions. The second way of confirming the aforementioned idea of democracy is by reiterating that the recipients of the reserved powers mentioned in the Tenth Amendment are "the people."

​

As such, the terms "states" and "or to the people" are not different ways of referring to the formally instituted bodies known as state governments, which many commentators have supposed to be the case. Instead, the two foregoing terms are different ways of referring to citizens as free individuals who are not mere thralls and subservient appendages of state governments and ruling elites. The Bill of Rights establishes the protections of individuals - not state governments per se.

​

It is individuals who are being given Constitutional standing through the Ninth and Tenth Amendments. At best, state governments - as is true of the federal government - are only entitled to seek to borrow authority from the people in order to serve the legitimate interests of the people as opposed to the agendas of ruling elites. State and federal governments have constitutional standing only at the pleasure of the people although one would never recognize this principle at work in the way governments now, as well as in the past, often have conducted themselves in a manner which has sought to abolish, diminish, undermine, circumscribe, and constrain the rights and powers of the people under the Ninth and Tenth Amendments.

​

If you are interested in reading the remainder of the book: The People Amendments, please go to: