Constitutional Law - The Forgotten Tenth Amendment
Least we forget, the authority of the federal government extended to those delegated powers, and all powers not delegated were reserved to the States and the people thereof. Commensurate with the Constitution and original intent, the chief concern of the federal government was basically defense, regulation of commerce, foreign affairs, and not much else. In fact, Congress’ powers were all enumerated in Article 1, Section 8. As Madison observed in Federalist #14,
In Federalist #45, he further notes that the federal government's “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
To safeguard against encroachment upon this pivotal doctrine of enumerated powers, moderate Federalists such as Madison, Anti-Federalists such as George Mason, successfully pushed for the adoption of the U.S. Bill of Rights in 1791, which included the Tenth Amendment. Their hope was of course to enshrine the pivotal doctrine of the federal government being limited to enumerated powers in the very fabric of the Constitution itself, thus making it plain that the States and the people thereof hold all powers not delegated. In doing so, it should be more apparent that the purpose of the U.S. Constitution was to limit and thus circumscribe the boundaries of the government. Those rights therein, however, were not some new-fangled innovations, but were anchored deep in English common law and in the history of the American colonies. Likewise, George Mason by no means thought of rights as commandments that the federal judiciary would thrust upon unwilling states and localities. The opening phraseology, “Congress shall make no law…,” was revealing because it was a negative. This doctrine of enumerated powers has always been integral to the maintenance and preservation of federal polity. And as the learned Virginia jurist St. George Tucker observed,
Jefferson perceptively inferred that the Tenth Amendment was the very “foundation” of the U.S. Constitution.
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.
—U.S. Constitution, Amendment X
Least we forget, the authority of the federal government extended to those delegated powers, and all powers not delegated were reserved to the States and the people thereof. Commensurate with the Constitution and original intent, the chief concern of the federal government was basically defense, regulation of commerce, foreign affairs, and not much else. In fact, Congress’ powers were all enumerated in Article 1, Section 8. As Madison observed in Federalist #14,
[I]t is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.
In Federalist #45, he further notes that the federal government's “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
To safeguard against encroachment upon this pivotal doctrine of enumerated powers, moderate Federalists such as Madison, Anti-Federalists such as George Mason, successfully pushed for the adoption of the U.S. Bill of Rights in 1791, which included the Tenth Amendment. Their hope was of course to enshrine the pivotal doctrine of the federal government being limited to enumerated powers in the very fabric of the Constitution itself, thus making it plain that the States and the people thereof hold all powers not delegated. In doing so, it should be more apparent that the purpose of the U.S. Constitution was to limit and thus circumscribe the boundaries of the government. Those rights therein, however, were not some new-fangled innovations, but were anchored deep in English common law and in the history of the American colonies. Likewise, George Mason by no means thought of rights as commandments that the federal judiciary would thrust upon unwilling states and localities. The opening phraseology, “Congress shall make no law…,” was revealing because it was a negative. This doctrine of enumerated powers has always been integral to the maintenance and preservation of federal polity. And as the learned Virginia jurist St. George Tucker observed,
The state governments not only retain every power, jurisdiction, and right not delegated to the United States, by the constitution, nor prohibited by it to the states, but they are constituent and necessary parts of the federal government; and without their agency in their political character, there could be neither a senate, nor president of the United States, the choice of the latter depending immediately, and on the former, immediately, upon the legislatures of the several states in the union.
Jefferson perceptively inferred that the Tenth Amendment was the very “foundation” of the U.S. Constitution.
