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ARTICLE THE TENTH
The powers not delegated to the United States by the Constitution or prohibited by it to the States, are reserved to the States respectively, or to the people.
No fundamental provision of the Constitution or the Bill of Rights is more neglected—or thoroughly violated—today than the Tenth Amendment. It is violated in spirit and in practice. Its violation is advocated implicitly and explicitly: in the teaching of American history and government, in legal theory, in what passes for “Constitutional Law,” and in the functioning of everyday American politics and government.
Our Constitution—as the very words of the Tenth Amendment make clear—was intended to be a delegated powers document. The states which formed and ratified the Constitution were free and independent states—nations—which delegated certain authority and powers to the new central or national government created by the Constitution. They delegated—and manifestly intended to delegate—only those powers stated in the Constitution: and no more. They forbade themselves certain other powers which they also stated in Article I, Section 10 of the Constitution. By clear intention and unmistakable logic the several states entrusted no more authority or powers to the central government which their representatives had created. All other authority and powers which the states had had before they ratified the Constitution they retained to themselves—and intended to retain to themselves.
The Constitution therefore is also a reserved powers document. The powers which the states have neither forbidden to themselves in the Constitution nor delegated to the central government in the Constitution are reserved to the states. These powers are “reserved to the States respectively”: they are reserved to each respective state.
These reserved powers are “reserved to the States respectively, or to the people.” This does not mean that they are reserved to the people of the nation as a whole, for that would mean that they are delegated to the central government—and would make the Tenth Amendment meaningless and ridiculous. The reserved powers are reserved to the people of the respective states. The powers which the government of each state or the people of that state have not delegated to the central government are reserved to the people or government of each state.
The neglected, abused, violated Tenth Amendment is much more than an amendment to our Constitution, much more than the final amendment to the Bill of Rights. The Tenth Amendment is the anchor and guarantee of federalism, a fundamental and essential principle of the Constitution—a principle insisted upon by the states whose representatives framed and ratified the Constitution. It protects the self-government of the people of each state by protecting the powers which the state has neither assigned to the central government nor forbidden to itself in the Constitution. It thus protects each state’s authority and freedom to govern itself as its people and their representatives see fit (so long as they do not set up a non-republican form of civil government or violate the Constitution’s prohibitions of certain powers to them). The Tenth Amendment thereby is a key protector of the rights and liberty of the minorities who are the people of each state, for the people of any state are but a minority of the people of the nation. It protects them against abuses of power by a national majority or a minority which may have control of the reins of power in the national government. The Tenth Amendment is a protector of localism and local self-government against centralism, the theory and practice of top-down, centralized government.
The Tenth Amendment is not an isolated thing, for it is an additional, written protection for federalism, and federalism is, as James Madison tells us in Federalist No. 51, an essential half of the Constitution’s system of securing the blessings of liberty via a system of separation of powers and checks and balances. The famous system of separation of powers, with accompanying checks and balances between and among the three branches of our central/national government, was intended to protect liberty and justice by preventing the concentration of power, and consequent abuses of power and usurpations of power, in any one branch of the national government. Federalism, Madison tells us, is a system of separation of powers and checks and balances between the central or national government and the state governments. So important is federalism’s separation of powers with accompanying checks and balances between the central government and the state governments that federalism provides us “a double security to liberty.”
By providing a double security to liberty federalism works to protect all the rights and liberties, all the freedom, intended to be protected by the Constitution and the Bill of Rights. Federalism gives Americans a double security for all their constitutional rights and liberties.
Federalism—not the phony “federalism” as redefined by “political scientists” and power-hungry politicians, but the separation of powers between a would-be all-powerful central government and our states—is more than a constitutional principle. Given the fallen nature of man, it is not time-bound but timeless this side of Heaven. It is essential to the protection of liberty and justice. The Tenth Amendment was intended to make it clear that federalism is to remain basic to our Constitution and constitutional law. No fundamental provision of the Constitution and the Bill of Rights needs more urgently to be restored to its rightful place in our civil government and law. Restoration of the Tenth Amendment to its rightful place in American political thought, constitutional law, and civil government is a necessary condition of the restoration of justice and freedom in America.