By: Michael Boldin
“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.”
Before the Tenth Amendment was even drafted or considered, supporters of the Constitution told the people that the document would be structured under the same principle. That is, all powers not delegated are reserved.
In Federalist 45, James Madison put it this way:
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 his State House Yard Speech months earlier, James Wilson made the same case:
Congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union.
And in a December 1787 letter, Roger Sherman did as well:
The powers vested in the federal government are only such as respect the common interests of the Union, and are particularly defined, so that each State retains its sovereignty in what respects its own internal government, and a right to exercise every power of a sovereign State not delegated to the United States.
But rather than being only a line in the sand between federal and state power, the 10th Amendment is actually a legal “rule of construction.” With its partner the 9th Amendment, it tells us how to read the entire Constitution.
Madison explained in his Report of 1800:
Whenever, therefore a question arises concerning the constitutionality of a particular power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not; Congress cannot exercise it.
Thomas Jefferson considered this so essential he referred to the 10th Amendment as “the foundation of the Constitution.”
As noted by Sherman above, the 10th Amendment is also an affirmation of sovereignty. In the American system, no government is sovereign – it’s the People of the Several States who hold final authority.
The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures; so the people are superior to our constitutions.
This was unique – the founders and old revolutionaries toiled under a system where sovereignty was in the hands of government, whether a single person like a king or queen, or a group of people like the “King in Parliament.”
But that view started to change with James Otis Jr.’s Arguments Against the Writs of Assistance in 1761. In what John Adams later referred to as “the Commencement of the Controversy between Great Britain and America,” Otis forcefully argued that “an act against the Constitution is void.”
When government holds final authority, government gets to determine the limits of its own power, whether in a written Constitution, or in an unwritten one like Otis was referring to. But when sovereignty is in a higher place, it’s no longer up to the government to tell the People if their own acts are “void.”
But that brings up an essential question.
If government is bound by a set of rules and doesn’t have final authority over itself – what is supposed to happen if government doesn’t follow those rules?
For that, we have to go much further back in time to Algernon Sidney who wrote in the 1680’s what Thomas Jefferson called “the best elementary book of the principles of government.”
In “Discourses Concerning Government” – which he was put to death for merely writing and not publishing – Sidney wrote:
“That which is not just, is not Law; and that which is not Law, ought not to be obeyed.”
That’s just how Patrick Henry approached the Stamp Act – with his Virginia Resolves of 1765 and his “if this be treason” speech in support of them.
Here, Henry may have established himself as the original Tenther, by noting that Parliament was only authorized to exercise certain powers. And when they crossed the line into powers reserved to Virginia, the people were not “bound to yield obedience.”
While that resolution did not ultimately pass, it was published widely, and sparked the resistance to the Stamp Act.
John Dickinson followed his lead later that year in a broadside urging noncompliance:
“IF you comply with the Act by using Stamped Papers, you fix, you rivet perpetual Chains upon your unhappy Country. You unnecessarily, voluntarily establish the detestable Precedent, which those who have forged your Fetters ardently wish for, to varnish the future Exercise of this new claimed Authority.”
And in the weeks leading up to the Act’s effective date, John Hancock summed up the spirit of resistance led by Henry, Dickinson – along with others like the Loyal Nine and Sons of Liberty in Boston:
“The People of this country will never suffer themselves to be made slaves of by a submission to the damned act.”
The foundational principle of sovereignty wasn’t the only one from the Revolution that made its way into the Constitution. The view that resistance was the essential check on government power did as well.
In the North Carolina ratifying convention, future Supreme Court Justice James Iredell said that the people would “resist if the government usurp powers not delegated to it.”
In the Virginia Ratifying Convention, George Nicholas said if the federal government were to “exceed these powers” delegated in the Constitution, “the people will have a right to declare it void.”
James Madison advised a “refusal to cooperate with officers of the Union” as part of his four-step strategy to stop federal programs without waiting on the federal government to limit its own power.
Taking this one-two punch of sovereignty and resistance, Theophilus Parsons may have summed it up best in a speech in the Massachusetts Ratifying Convention:
“The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance.”
At the end of the day – You are not supposed to wait 2 or 4 or 6 years for federal judges or federal politicians to magically limit federal power.
The people and the states are supposed to stand up, resist, refuse to comply and nullify unconstitutional federal acts – as soon as they happen.