When the subject of the Tenth Amendment has been raised in past conversation, some have laughed and some have said, “Oh, that will never work.” Since its passage, many States have tried to invoke their Tenth Amendment rights on several occasions. The largest combined effort, before now, was during the Civil War, when eleven states sought to secede from the united States. Interestingly enough, the last time people got truly fired up about their States rights was during the Roosevelt Administration’s “New Deal.” Why do we have such a magnificent amendment to protect the states if we are not going to use it?
The February 2008 CRS Report for Congress, after quoting the Tenth Amendment, states, “While this language would appear to represent one of the most clear examples of a federalist principle in the Constitution, it has not had a significant impact in limiting federal powers. Initially, the Supreme Court interpreted the Tenth Amendment to have substantive content, so that certain ‘core’ state functions would be beyond the authority of the federal government to regulate.” Yet, in the past, as now, the Federal Government continues to take what it wants, expecting the states to bow down in servitude.
Shortly after that Constitutional Convention, lawmakers saw the vague language and the need to recognize the rights of the States and their citizens. The Tenth Amendment was added, along with nine other defining amendments. Federal legislators, derelict in their duties, still see the Tenth Amendment as very vague and pass laws they are not truly authorized to pass. The Preamble to the Bill of Rights expressly states it’s purpose, “…the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…” Since the Federal government overlooks this, I propose that, for clarity, it would be prudent to turn to the state-level debates that ensued during the formation of the State’s Rights Amendment.
The book The Complete Bill of Rights gives us a much-needed glance at the thoughts of our legislators at the time. Eight states proposed clarification for the Tenth Amendment. It is interesting that all these states were clear about not allowing the Federal Government any extra flexibility from its Constitutional boundaries. Of those, a few stand out.
From New York:
“That the Powers of the Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same…”
From North Carolina:
“That those clauses which declare that Congress shall not exercise certain powers, be not interpreted in any manner whatsoever to extend the powers of Congress...”
“That the sovereignty, freedom and independency of the several states shall be retained...”
From South Carolina:
“…that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”
“…That all power is naturally vested in and consequently derived from the people; that Magestrates, therefore, are their trustees and agents at all times amenable to them…”
In the upcoming film Don’t Tread On Me, Constitutional Expert Dr Edwin Vieira makes a striking observation, “We-the-People do ordain and establish…Public officials didn’t do that, judges didn’t do that…that is a statement that We-the-People have the authority; we are the ultimate law-givers…” This statement echoes the thoughts, opinions and written words of our early State legislators, as well as many citizens of today.
James Madison, one of our Founding Fathers and chief author of our Constitution, made several defining statements about the States and government. These two stand out.
From Federalist Paper #45:
“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”
In regards to state sovereignty and the compact theory:
“Our governmental system is established by compact, not between the Government of the United States and the State Governments but between the STATES AS SOVEREIGN COMMUNITIES, stipulating EACH with the OTHER…” from the Dictionary of American History
There are other references, as well. Under the subject Reserved Powers of States in the 1940 Dictionary of American History Vol. IV, it states of the Tenth Amendment that it “…securely established the United States as a Federal state composed of a central government and a number of constituent state governments each possessing powers independent of the other.” It also confesses that the “Supreme Court has, by a consistent policy of broad construction, added many implied powers.”
In Vol. V of the same Dictionary, the States’ Rights heading conveys “states’ rights has meant different things at different times” further stating that, as Jefferson envisioned State’s Rights, it was a “rule of strict construction applied to the powers of the central government…”
There are more references, to be sure. It is clear by the above exactly what our legislators at the time meant by the Tenth Amendment…the individual States will, indeed, keep their sovereignty. The Federal Government will be limited from over-reaching its bounds and converting the united States in to a dictatorial government under the Federal government. I heard someone say, and it makes sense, that our Founding Fathers had just fought a war to win our country’s freedom from a tyrannical government (England) so why would they “create” a government with the same agenda? Why would they “win” their freedom just to give it up, again, to a central power?
Several states are drafting legislation to assert their sovereignty. Some of the more recent laws that have driven states to seek their Tenth Amendment rights are: the USA PATRIOT Act (which treads on the 1st, 4th, 5th, 6th, 8th, and 13th Amendments) and its extensions, the Real ID Act (not passing on its own, it was attached as a rider to an appropriations bill), the John Warner Defense Act (ending Posse Comitatus), the Military Commissions Act (ending Habeas Corpus), the FISA Amendment Act (ending, then redefining, privacy), the Economic Stabilization Act of 2008, the America Recovery and Reinvestment Act of 2009 and, most recently, the newly passed healthcare disaster. No one is playing favorites. The last several administrations have been guilty of treading over the rights of the states and their citizens.
Charles Key, State Representative from Oklahoma and one of the most outspoken on the State Sovereignty issue, said in an exclusive interview for Don’t Tread On Me, “The whole reason we have the Second Amendment in there…is to protect ourselves against an out-of-control government, a tyrannical government, a government that is violating the rights of the citizens…violates the law.” Filmmaker William Lewis says, “Throughout history, tyrants don’t give up their power willingly.”
So what do we do? In a March 16, 2010 Wall Street Journal/NBC Poll, fifty percent of the people said they would “replace every single member of Congress, including your own representative,” while forty-seven percent said they would not. It may be time to “start kicking ass and taking names,” according to film producer Gary Franchi. Montana Governor Brian Schweitzer’s stand is clear, “The Federal Government says we want to be your daddy. We want to tell you how to live your life. That’s where we draw the line and say, whoa, not here in Montana.” It is evident that other states are drawing their proverbial “line in the sand,” as well.
What will it take for people across the United States to get angry enough to stand up and take back what is rightfully theirs; rights given to them by their Creator, NOT Congress? It didn’t happen when Congress passed the Federal Reserve Act way back in 1913, or any of the other encroaching pieces of legislation since. Now we have the Federal Government mandating that we, as sovereign, individual citizens, purchase government approved health care! Can we not see that with each passing of an egregious piece of legislation the people are becoming more and more enslaved? What is it going to take to make people shout, “Stop treading on me”?
CRS Report for Congress, Federalism, State Sovereignty and the Constitution: Basis and Limits of Congressional Power, Kenneth R Thomas, Legislative Attorney, American Law Division, Updated February 1, 2008
The Complete Bill of Rights: The Drafts, Debates, Sources and Origins, Edited by Neil H Cogan, Oxford University Press, New York/Oxford, 1997
Dictionary of American History, James Truslow Adams, Editor in Chief, Charles Scribner’s Sons, New York, 1940, Volumes II, IV, V
For more information on the upcoming film, Don’t Tread On Me, please visit
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