Monday, August 22, 2016
The Ninth and Tenth Amendments -- Misreading the American Constitution
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 that is both somewhat misleading and possibly even incorrect. The misleading aspect of the foregoing 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 is championing the rights of those officials who govern a state or that one is championing the rights of the people who live in that state.
As all too many people have discovered over the years, the two are not necessarily coextensive. This point alludes to the nature of the possibly incorrect dimension of those claims that suggest that the states’ rights position was the perspective that 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 that 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 that 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 the individuals 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 those 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 that 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 that 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 of the foregoing possible 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 o r 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. However, if the foregoing is not what Jefferson meant, that 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 those rights and liberties.
In theory, these rights and liberties could be extended to everyone. However, in practice, those 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 those arrangements or not.
When the 1787 draft of the Constitution was circulated among the various states, the different state conventions that 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 that 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, and, therefore, were 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 that 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 that 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 that 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 (under John Marshall), 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 those 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 that 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 that was willing to accede to the presence of those 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 many 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 that permitted power to be distributed, to a considerable degree, among the thirteen states of the Confederation.
By contrast, the new constitution that 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 those 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 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 that were left to disappear beneath the wake of ‘The Great Compromise.’
Whatever the ultimate motivations, beliefs, and ideas of the Federalists might 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 that 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 governments.
If one single step is permitted to governments beyond the boundaries and limits that 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 that 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 that 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 those activities.
There is another dimension to the foregoing set of issues. The state conventions that 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 those 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 the participants because those 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 those 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 local, 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 might have been taken on their behalf by one government or another. Citizens are not wards of local, state or federal governments.
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 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 the aforementioned 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 might 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 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 that 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, that 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 that has sought to abolish, diminish, undermine, circumscribe, and constrain the rights and powers of the people under the Ninth and Tenth Amendments.
Some commentators have sought to argue that champions of states’ rights have taken the Tenth Amendment to its logical conclusion by arguing for the supremacy of state governments in all matters not either specifically relegated to the federal authority or prohibited to the states. I tend to disagree with those commentators because if one wishes to take the Tenth Amendment to its true logical summit, then, the powers that are being reserved in the Tenth Amendment belong to the people and not to state governments or ruling elites.
It is states that are derivative from the people and not the other way around. The Tenth Amendment is not about states’ rights versus federal rights, but, rather is about the right of individuals to be free from the tendency of governments, at all levels, to encroach upon the rights of individuals. The Tenth Amendment guarantees that governments have not been empowered by the Constitution to encroach upon the rights of people and, thereby, do whatever those governments like in relation to the people, nor do governments have the right to seek to curtail the active expression of an individual’s Tenth Amendment rights as long as such an exercise of rights does not infringe on the capacity of other individuals to seek to express their similar Tenth Amendment rights.
Governments – whether federal, state or local – cannot take away the powers, privileges, rights, or immunities of the people. The authority of the federal and state governments are both curtailed and limited by the powers given to the people under the Ninth and Tenth amendments.
Some might wish to argue that a clause – sometimes referred to as the ‘Supremacy Clause -- in Article VI of the Constitution is the straw which stirs the drink of democracy. This clause states:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Article I, Section 8 stipulates the areas where central government may make laws. This section begins with:
“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”
The foregoing clause – which is sometimes referred to as the ‘elastic clause’ due to its apparent ability to permit the federal government to expand into a whole host of unanticipated areas that concern issues of either providing for the common defense or the general welfare – is followed by a whole list of areas where the Constitution has authorized Congress to make laws, including, but not exhausted by, the ability:
- To borrow money on the credit of the United States;
- To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
- To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
- To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
- To provide for the punishment of counterfeiting the securities and current coin of the United States;
- To establish post offices and post roads;
- To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
- To constitute tribunals inferior to the Supreme Court;
- To define and punish piracies and felonies committed on the high seas and offenses against the law of nations;
- To declare war, grant letters of marquee and reprisal, and make rules concerning captures on land and water;
- To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.
The foregoing list of permissions ends with the stipulation that in addition to all the powers that have been relegated to Congress with respect to various specified areas of law-making, Congress shall also be entitled:
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
An advocate of strong central government – over against those who claim to champion states’ rights – might take all of the foregoing powers or directives and assert that the federal government is entitled to govern people in just about any way it wishes. An argument also might be made by advocates of strong central government which suggests that all manner of legislation might be “necessary and proper for carrying into execution the foregoing powers” or that all manner of legislation may be enacted in order to “provide for the common defense and general welfare.”
‘Public policy’ is the term that is often used to refer to the different kinds of philosophical, political, economic, and legal theories that are developed by government officials – elected and otherwise – as the means through which to actualize the powers granted to the federal government under the provisions of the Constitution. Public policy encompasses the guiding principles that are deemed “necessary and proper” in the way of legislation “for carrying into execution” the powers that allegedly have been delegated to the government as specified by Article I, Section 8.
Public policy encompasses all that government officials consider to be a means of providing “for the common defense and general welfare of the United States” as allegedly required by Article I, Section 8. Public policy is the avenue through which the Supremacy Clause of Article VI – namely, that “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” -- is brought to life as the law of the land.
However, there may be a few bumps along the road to democratic paradise that are envisioned by the sort of centralized, federal government outlined in the Constitution. First of all, in Article IV, Section 4 one finds:
“The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion.”
There are at least two different senses of the idea of what constitutes a republican form of government. One sense has to do with the idea of providing a means through which the people are able to elect or appoint representatives in government to work on the behalf of the citizens.
Another sense of republicanism involves the right of people to self-govern quite independently of representational government. In other words, it alludes to the possibility that people can self-govern according to negotiated agreements drawn up directly among individuals and without needing to be filtered through a system of representative government. In this form of republicanism, the people, considered as a whole, are the government and there is no layered bifurcation between, on the one hand, a body of government and, on the other hand, the people such that there is a coterie of bureaucrats and officials who serve as a protective buffer between the people and the government with the vast majority of the protections being in the favor of the government and not the people.
Obviously, those who aspire to power over others and who have a desire to control the lives of others (or their resources) are inclined to believe that republicanism means some form of representative government in which the elected officials get to assume power and exercise that authority as their consciences, interests, and ambitions dictate … even if this means that the people do not necessarily get represented with much, if any, moral integrity. This form of republicanism represents, for those so inclined, the best opportunity to acquire power and, then, either use it for one’s own purposes and agendas or use it to impose one’s own ideas about the general welfare on others even while claiming to represent the people.
Sometimes, there are even a few individuals who actually do employ representational government to try to sincerely represent the interests of the people. But, if this were the norm, then, this country would not be in the mess it is because, unfortunately, the modality of republicanism known as representational government has been so egregiously abused for centuries now, that, in many ways government does not function very well because it has been infected with so many forms of corruption. As Tom Paine noted in a slightly different but related context, truly: “these are the times that try men’s souls” ... and the souls of women and children as well.
The foregoing sense of representative republican government – via elected representatives -- is the modality of governance that is most compatible with a centralized government seeking to assert its control over the people. Individuals whose ambition is the acquisition of power recognize themselves in the others who mirror their motivations and aspirations.
They recognize one another as those with whom one can do ‘business’ in conjunction with the divvying up of power and its concomitant rewards. The only matter that has to be settled among these partners in power is to decide how that power shall be apportioned among the ambitious, and, consequently, the conflicts those individuals will experience concern matters of who acquires what power to be able to fulfill their own purposes and/or to regulate the lives of others.
The Constitution does not specify the nature of republicanism that is to be pursued. Consequently, the task of doing so is left to possibilities inherent in the Ninth and Tenth Amendments which -- with respect to all powers and rights not specifically relegated to the government or which have not been prohibited to the states – have been reserved for “the states or to the people.”
Once again, this time in conjunction with the idea of republicanism, the Constitution has left a trail of ambiguity. Do states – considered as established bureaucracies and entrenched centers of power elites – have the right to determine what constitutes the republican form of government that has been promised to the states by Article IV, Section 4 of the Constitution, or, do the people -- quite independently of government and as the very source from which states, as institutional bodies, derive their authority -- have the right to determine what constitutes a republican form of government?
Since the Bill of Rights is about protecting the interests of people over against the tyranny of government of any kind, there is a prima facie case which can be built in support of the idea that it is not governments – even that of a state – which gets to determine what republicanism shall mean to the people. Congress has no say in this matter, and the President has no say in this matter, nor does the Supreme Court have any justifiable, non-arbitrary grounds (whether through judicial construction, or through some mystical theory of original intent, or via some other form of adjudicating philosophy) through which to objectively and fairly dictate what the people must understand by the idea of republicanism. Furthermore, as previously noted, this matter of republicanism is not within the purview of states -- considered as established governments who rule over people rather than entities that are totally dependent for their existence on the people -- to decide.
Obviously, there might be many who will find the possible ramifications of the foregoing position to be rather disquieting. This is so because making the meaning of republicanism independent of government control also means that those who have vested interests secured through irresponsible representative government might no longer be able to use democracy as their personal playpen through which to satisfy their largely self-serving appetites.
So, what are some of the possibilities with respect to how people might develop the idea of a true republicanism in which the people and not governments were the determiners of that word’s meaning within the context of Constitutional arrangements? A few areas that come to mind are the following: campaign finance reforms such that elections are completely funded by the public; the requirement that television and radio must, as part of their privilege of using public airwaves, provide free and qualitatively equal time to all candidates for public office; the elimination of any form of paid lobbying ... which does nothing to interfere with the rights of people, as individuals, to petition their government; the removal of the status of personhood from corporations; altering the form of becoming chartered as a corporation such that corporations must serve the public interests [which was, actually, the original nature of corporations in America] and not just the private interests of stockholders; abolishing the artificial obstacles which the existing two-party system has placed in the way of independent parties; non-compulsory education; establish the right of citizen grand juries to investigate whether, or not, elected representatives have upheld their oath of office; promote the ability of the people, through citizen grand juries, to independently investigate, with full subpoena power, whether, or not, crimes have been perpetrated against the people and whether or not the people have been deprived of their Ninth and Tenth Amendment rights.
How does the foregoing fit in with the alleged right of Congress to do whatever is “necessary and proper” in the way of legislation “for carrying into execution” the powers that allegedly have been delegated to the government as specified by Article I, Section 8? How does the foregoing possibilities fit in with the federal government’s alleged responsibility to “provide for the common defense and general welfare of the United States” as stipulated by Article I, Section 8, or, in accordance with Article VI, that “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”?
The federal government is not free to do whatever it likes. There are constraints on what the federal government can and can’t do.
One set of constraints is the Bill of Rights -- especially, but not restricted to, the Ninth and Tenth Amendments. Another set of constraints -- guaranteed by the Constitution -- is entailed by the republican form of government to which the people within the various states are entitled. Another set of constraints is expressed through the other Constitutional amendments that exist beyond the Bill of Rights. A further set of constraints comes in the form of the Preamble to the Constitution.
The Preamble states:
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Consequently, whatever the President, Congress, and the judicial system do, they must act in accordance with the principles of the Preamble that are intended to serve people, not governments.
Nowhere in the Preamble is either the term government or state specifically mentioned. The idea of a ‘union’ has an array of possible meanings, but whatever the nature of the meaning with which one invests the term “union”, clearly, the constitutional intent of the Preamble is to ensure a process that serves the people as well as their posterity with respect to securing: justice, domestic tranquility, the common defense, the general welfare, and the blessings of liberty.
Indeed, the whole idea of the Preamble is to establish the purposes and functions of the Constitution and subsequent derivative forms of government. The formation of “a more perfect union” is one that serves the interests of the people rather than governments. Unions, in the form of governments, come into being in order to meet the needs of people, and those unions are sought only to the extent that they will assist people to realize the principles inherent in that Preamble.
Furthermore, the idea of union need not be restricted to some form of elected, representative government. As noted previously, the republican form of government that is guaranteed to the people by the Constitution might extend to extra-governmental arrangements agreed upon by the people among themselves and as such gives expression to a non‑governmental but fully constitutional and, therefore, legal modality of union mentioned in the Preamble.
Democratic government comes into being in order to assist the people and their posterity to realize the principles set forth in the Preamble. Democratic governments have no raison d’être independently of what is set in motion through the Preamble – or through words of a similar nature -- as a service to the people.
Many government officials – elected or appointed – interpret what is meant by the various principles of the Preamble (namely, justice, liberty, domestic tranquility, the general welfare, or the common defense)? Many governments proceed to require people to adhere to what the federal or state governments determine is the practical or political or legal meaning of those words. Notwithstanding the foregoing considerations, one still might raise the following question: Does the Constitution demand that citizens follow a given government’s theory of public policy as the means through which the principles of the Preamble are to be implemented on behalf of the people?
I believe the answer to the foregoing questions is: ‘No’. I believe that the reasons why the answer to the foregoing question is ‘no’ has to do with the principle of republican government that has been promised to the people by the Constitution, but it also has to do with not only the Ninth and Tenth Amendments discussed previously but, as well, the First Amendment which, among other things, is interpreted to mean that there must be a separation between church and state.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,”
… and the effective meaning of the foregoing clause was to address the fears of the people concerning the possibility that government might be hijacked by forces of religious tyranny, and, as a result, people might be become enslaved by the whims and purposes of that sort of government. After all, some of the people who came to America were attempting to escape the various forms of religious tyranny that were being perpetrated, aided and abetted by governments elsewhere in the world, so, why wouldn’t there be fears among the people in America that government in the United States might also be so corrupted?
One problem with the foregoing is that nothing has been said about what constitutes a religion. However, religion, broadly construed, need not refer to just a theistic based form of worship, but could include any system of activity that entails, among other things: A perspective concerning the meaning and purpose of life; a code of conduct concerning how life should be lived; a set of practices that are claimed to help an individual get the most out of life; an array of warnings about what will happen to people who do not adhere to such a perspective, code of conduct, or set of practices. Moreover, all of the foregoing is often done in a context of compulsion and oppression rather than through free-will offerings.
In light of the foregoing, it seems clear that most forms of government public policy constitute a religion -- in the sense of a philosophy concerning the nature, meaning, and purpose of life -- that is being imposed upon people, often against the will of the latter and without their consent. Government public policy seeks to establish a religion in the form of the arbitrary economic, political, and philosophical theories that underwrite any given instance of public policy concerning what government officials (both elected and appointed) believe the purpose of life should be, and how people should conduct themselves, and what practices are necessary to achieve the purposes of those theories, and what the consequences will be for iindividuals who do not abide by the teachings of such a religion.
Those who worship power, money, possessions, property, and wealth often see government as the means for pursuing the objects of their worship. They often lobby government to favor and promote their form of worship, and they often pay big sums of money to political action committees to ensure that government public policy will favor, establish, and impose their form of religion upon the people of the land.
However, even if governments were not subject to the constant evangelical fervor of money-worshipers and power-worshipers, the fact of the matter is that when governments advance public policy they are, in point of fact, seeking to establish a religion in the foregoing sense. In effect, public policy programs involve the establishing of a certain kind of economic and philosophical framework that is used as a proposed vehicle to transport the populace toward someone’s arbitrary and artificial notion of political and economic salvation, and in accordance with which, citizens must live their lives on penalty of chastisement for disobeying the delusional self-aggrandizement of governmental officials who consider themselves to be the high priests and priestesses of the religion of public policy.
The foregoing scenarios are forms of religious abuse that have been transpiring almost from the inception of the United States as a legal entity. Consequently, when the Constitution says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, I take that document at its word and wonder why so many people within Congress, the executive office, and the judiciary have failed to understand what is going on through the agency of public policy as a religious-like activity.
I also wonder why the federal government has so consistently failed to live up to its responsibilities under Article IV, Section 4 of the Constitution that says:
“The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion.”
In other words, why has the central government of the United States failed to protect various centers of population against the invasion of religious fanatics -- in the form of public policy advocates -- who seek to force upon the people forms of government that the Constitution prohibits because neither are those forms of government republican in any essential sense of this word, nor are they in accordance with the establishment clause of the First Amendment.
The Constitution does guarantee -- and cannot interfere with the free exercise thereof -- the right of people to pursue their respective individual ideas about religion, whether these are economically, philosophically and/or theologically based. However, the freedom to pursue those religious beliefs and practices is permissible only so long as those pursuits are commensurate with, and do not interfere with, the ability of other individuals to pursue -- or not -- similar principles.
Some might wish to argue that the foregoing discussion concerning public policy and religion is a bunch of nonsense because public policy is an expression of purely secular concerns. Unfortunately, secularism has been fashioned into a religious system by many who believe that once one eliminates the usual bunch of religious suspects, the constitutional field should be clear for whatever brand of secularism one wishes to advance.
Secular positions involve a faith-based set of initiatives just as much as the traditional perspectives do that have been labeled as ‘religious’. This is because secular philosophies cannot prove any of their contentions as being anything other than being arbitrary, artificial, or lacking in a justification and validity with which all might agree. Ultimately, the attractiveness of secular based philosophies are a matter of personal likes, dislikes, and what one is willing to place faith in as a way to proceed in life.
Secular philosophies are not value free. Furthermore, they rest on assumptions that often are not provable, and, as such, constitute little more than conjectures which are faith-based systems.
Why anyone supposes that, somehow, philosophy, of whatever variety, is somehow ‘better’ than, more rational than, less problematic than, or more acceptable than religion in the narrow sense of the term, is a mystery. Whether one is talking about religious oppression or philosophical oppression, one is still talking about tyranny.
In years leading up to the formation of the United States, most of the people had one concern … the specter of tyranny. Sometimes this reared its head in the form of religious oppression, and sometimes this was manifested in the form of political oppression, but the result in each case was the same ... the loss of control in one’s own life.
Secularism gives expression to an individual’s decision concerning the problems of life. However, when one seeks to impose that sort of a belief systems on people in general, then, there is problem, and, as such, the secular perspective becomes an attempt to establish a religion to which citizens must adhere as a matter of public policy.
Some may wish to argue that if one cannot use some form of religion or secularism to govern people, then, how will government be possible? Whatever the answer(s) to this dilemma might be, it cannot involve tyranny, and possible solutions should be reflected upon a lot more insightfully than, for the most part, has been the case for the last several centuries.
Neither religion, in the normal sense of this word, nor religion in the extended sense of this word (which includes secularism) has any constitutional basis to be established by Congress as the supreme law of the land. Faith-based initiatives of either kind ought to be off-limits as ways of seeking to govern people, although people should be perfectly free to enter into whatever arrangements they like in the form of truly republican modes of non-representative self-governance which permit them to negotiate boundaries of life that respect, as much as is reciprocally possible, one another’s personal predilections, interests, purposes, and orientations. Governments should assist people to explore, negotiate, and mediate these boundaries rather than insist on what those boundaries must be based on some arbitrary grounds of public policy that is imposed on the people and to which the people are compelled to adhere.
If people are uncomfortable with the fact that secularism has all the earmarks of an established religion, then, there are other constitutional issues to consider that also argue against using secularism to serve as a template on which to base the affairs of governance. For example, consider Section 1 of the Thirteenth Amendment:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Public policy often locks the citizenry into one, or another, form of involuntary servitude even though the affected people have committed no crime. As if in prison, people are required, under threat of punishment, to follow a set of rules inherent in some piece of congressional legislation, judicial review, Presidential executive orders and signing statements, or state governance that is based on arbitrary and artificial philosophical/religious musings about what constitutes justice, domestic tranquility, the common defense, general welfare, liberty, or republican government.
For instance, although Article I, Section 8 of the Constitution gives the Congress the power to borrow money on the credit of the United States, nevertheless, when the Congress does this irresponsibly and, as a result, saddles the public, both now and in future, with a rapidly increasing national debt that is so huge and unmanageable that the interest payments alone destroy the capacity of the country to properly address issues such as: Hunger, homelessness, poverty, health care, and environmental degradation, then, Congress has imposed a form of involuntary servitude upon the people because the people – through the ineptitude and/or corruption in government – have involuntarily been forced into serving the agendas of the national government. Moreover, when the elected officials pursue public policy agendas that borrow money on the credit of the United States – money that is not paid back – then this can affect the international credit rating of the country and once again place people in a form of involuntary servitude that affects what the people can, and cannot do, for years to come. If this is not involuntary servitude, I don’t know what is.
Although under Article I, Section 8 of the Constitution, Congress does have the power to regulate commerce, both internationally and among the states, this does not entitle Congress to pursue public policy agendas that place people into involuntary servitude as a result of balance of payment issues or as a result of domestic employment losses through permitting the outsourcing of jobs to foreign countries, or as a result of giving corporations a pass on taxes, environmental pollution, and a lack of concern about the wages, health, and safety of workers.
According to Article I, Section 8 of the Constitution, Congress does “have power to lay and collect taxes.” However, this does not entitle Congress to force the people into involuntary servitude by forcing people to subsidize those companies with public monies in the form of corporate welfare consisting of tax concessions, government subsidies, and lackadaisical regulatory oversight that allows those corporations to diminish the quality of life of citizens so that those companies can acquire ever greater profit margins.
Inequitable rights have been extended to corporations in the form of legal personhood – a status that enjoys limited liability, and, therefore, little or no accountability. Inequitable rights have been given to corporations in the form of charters that allow companies to pursue the interests of the few – i.e., stockholders -- rather than the interests of the many – i.e., citizens considered as a whole.
These inequities exist to such an extent that corporations have filed more legal actions in an attempt to protect their alleged Fourteenth Amendment rights as ‘persons’ than have actual people. Consequently, Congress has placed real living people into various forms of involuntary servitude to corporations in order to accommodate the insatiable appetites of corporations and, in the process, have permitted the latter to gain a vice-like grip and control over large portions of the lives of citizens.
Even though Article I, Section 8, of the Constitution does empower Congress:
“To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces,”
and even though, under Article 2, Section 2 of the Constitution:
“The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States,”
nevertheless, none of the foregoing powers entitles either of those branches of the government to invade other countries without a rigorously provable “clear and present danger” to the United States, nor do such powers entitle one to slaughter civilian populations in the countries that are being invaded, nor do those powers permit one to wage war on children or to torture the citizens of other countries, nor do those powers entitle one to issue warrant-less wiretaps that invade the privacy of American citizens. In addition, and most relevant to the present discussion, just because the Constitution cites certain powers belonging to Congress and the Executive Branch, those powers may not be employed in such a manner so as to force the citizens of the United States into a form of involuntary servitude that requires the American people to be inextricably tied to policies of terror, mass murder, or economic rape and enslavement that might be promulgated by either Congress or a given Commander in Chief with respect to the people or resources of another country. In fact, those who abuse their powers in any of the foregoing ways should be relieved of their duties.
The powers of the Congress and the Executive Branch are circumscribed and constrained in a number of ways. They are circumscribed and constrained by: the principles inherent in the Preamble to the Constitution, as well as by the constitutional guarantee of a republican government for the people of the various states, as well as by the Bill of Rights and the remaining amendments – and by common decency, morality, and civilized behavior.
Having power does not entitle one to be an international criminal. Furthermore, if one cannot act in accordance with the principles of democracy on the home front, then, seeking to export democracy to other countries – even if and when this might be done in internationally acceptable ways – is nothing less than a crude hypocrisy that forces upon all citizens an involuntary servitude to a form of existence characterized by shame, embarrassment, and a general loss in quality of life.
When citizens are not free to pursue whatever forms of republican government they choose, then, those citizens exist in a state of involuntary servitude. When citizens are not free to tell corporations what the latter can and cannot do but, instead, are forced into being at the mercy of the whims and interests of corporations, then, those citizens exist in a state of involuntary servitude. When the citizens are virtually powerless to prevent Congress, the executive branch, the judiciary or state governments from behaving irresponsibly, corruptly, or foolishly, then, the citizens exist in a state of involuntary servitude with respect to government public policy agendas.
Voting someone into office does not mean that anything and everything that an elected official might do while in office has been voluntarily agreed to, beforehand, by the electorate … especially the ones who did not vote for that person. Electing someone to office is an exercise in trust on the part of a citizenry which hopes that such an individual will exercise the power of office judiciously and wisely in order to help the people to solve problems, rather than create them, and to not betray the trust that has been extended to an elected official.
When an elected official abuses the power of office, one of two things is likely to ensue. On the one hand, the official might vote for legislation or support public policy agendas that place the electorate into one form, or another, of involuntary servitude such as: A form of national indebtedness that allows foreign countries to own a considerable amount of the future wealth of the American people; disadvantageous credit ratings; problematic balance of trade deficits; dysfunctional tax policies; inequitable treatment of actual people relative to artificial persons (sometimes referred to as limited liability corporations), and so on. Or, on the other hand, the official who abuses the power of office will fail to vote for legislation or pursue programs that actually would secure and advance the principles outlined in the Preamble to the Constitution or secure and advance the cause of true republican government – both of which the elected official has taken an oath of office to secure, protect, and enhance.
In either of the foregoing cases, liberties, domestic tranquility, justice, the general welfare, and the common defense (and defense is not at all the same thing as offensive wars) are diminished. In either case people are drawn into various forms of involuntary servitude as a result of the slings and arrows of outrageous government that enslaves people against their will and, therefore, constitutes involuntary servitude.
When governments -- through their peremptory notion of democracy -- force citizens into various forms of involuntary servitude, then, the former bodies give expression to the fact that those governments are the ones who constitute a clear and present danger to the people. When governments insist on presuming that they have unlimited and unassailable powers through which to twist citizens in whatever way the delusional pathologies of such governments are inclined, then, one begins to have a very clear understanding of why Patrick Henry referred to the Philadelphia Convention as having the “stink of monarchy” about it, and one also begins to understand why it is that one must be ready to retain a healthy sense of skepticism with respect to virtually all forms of government.
To be sure, “in order to form a more perfect union” it is necessary for people to willingly give up certain expressions of liberty. However, such a sacrifice is willingly done only to the extent that governments do not seek to exploit or leverage the situation by forcing people into involuntary forms of servitude that are neither necessary nor can be justified as being an inherent part of the ‘deal’ through which certain forms of liberty are willingly foregone in exchange for a set of compensations in the way of liberties, rights, privileges, immunities, and powers that would not be possible if people were not willing to impose certain constraints upon themselves.
During its infancy, the Supreme Court tended to rule in ways that supported the belief that so-called ‘police powers’ (the right to make laws governing the internal order of a given geographical area usually in the form of a state) were reserved for the states and did not belong to the federal government. In fact, so much was this belief part of the zeitgeist that subsequent to a Supreme Court judgment that upheld the constitutionality of the Second Bank in McCulloch v. Maryland (1819), Chief Justice John Marshall vigorously sought to rebuff critics of his ruling by arguing that the decision did not in any way expand the powers of Congress, and, instead, claimed that his ruling was only about the propriety of the means through which a constitutionally delegated power might be implemented.
Chief Justice Marshall can argue as vehemently as he likes about the nature of what he claims to have done in McCulloch v. Maryland, but the one thing he did not appear to do is to fully consider or protect the rights of the people under the Ninth and Tenth Amendments. In short, he did not appear to ask himself or the other Justices the following question: Independently of the question of federal versus states rights, what are the rights and powers of the people in the matter of the establishing of the Second Bank of the United States?
The people had Constitutional standing in the case under the Ninth and Tenth Amendments. Neither Congress or state legislatures or the judiciary can presume that they serve the interests of the people if their activities entail conditions that adversely affect what happens to the people as a result of the actions of the government or of the judiciary. Only the people have the right to say what is in their best interests, and neither the different levels of federalist government nor the judiciary may usurp those rights.
If the formation of a federally chartered bank leads to the devaluation of money, or if banking practices lead to various forms of financial speculation that injure the economy, or if lending practices are pursued that favor some patrons over others, or if the bank subsequently fails and, as a result, depositors lose their life’s savings, then all of this has ramifications for the generality of people and not just for state governments. Chief Justice Marshall might have thought that he was only focusing on determining what were permissible means for enabling Congress to exercise powers that he believed to have been delegated to it through the provisions of the Constitution, but he was doing so without rigorously asking the question of whether the principles of the Preamble, or the guarantee of republican government, or the Bill of Rights actually entitled Congress to sanction the formation of banks if that action did not serve the interests of the people quite independently of what the act did in relation to various state governments.
Up until the time of Lincoln’s presidency, Jefferson’s belief that the Tenth Amendment was at the heart of a constitutional union of state and federal governments seemed to be borne out. Indeed, state governments were so frisky in asserting the independence to which they believed they were entitled that many states openly defied the federal government on a variety of occasions.
For example, many of the New England states threatened to secede from the Union following the Louisiana Purchase of 1803 and did so again during the War of 1812. In addition, many of the same New England States actively sought to undermine and oppose federal actions during the Mexican War that occurred between 1846 and 1848.
A number of southern states resisted the enforcement of a variety of federal laws in 1799 and again during the 1830s. And, of course, eleven southern states did not just threaten to defy the federal government in 1860-1861 but actually seceded from the Union.
Other states also engaged in a variety of on-going confrontations with the central government concerning the implementation of federal laws. Among these states were Wisconsin, Illinois, and Ohio.
One might note in passing that when states thwart the federal government, they are said to be exercising their Tenth Amendment rights, but when individuals assert their Tenth Amendment rights this is labeled as illegal acts of civil disobedience. This difference in stating the matter is merely a reflection of a belief propagated by both federal and state governments that notwithstanding the actual wording of the Tenth Amendment, nonetheless, as far as governments are concerned, the people have no independent standing when it comes to seeking to assess the meaning and significance of the Tenth Amendment.
When Lincoln sought to prevent Southern States from seceding from the Union, he not only denied both states and people their Tenth Amendment rights, but, as well, Lincoln also denied to the states and the people of those states their constitutionally guaranteed right to a republican form of government. In short, Lincoln exceeded his authority under the Constitution, and, as such, his actions were unconstitutional and it speaks to the shame of the Supreme Court of the time that they did not confirm these facts.
The foregoing contention does not mean that I believe governments or anyone has a right to enslave others. In fact, most, if not all, of the Southern state governments were also seeking – just as the federal government was doing -- to deprive many people of their Tenth Amendment rights as well as to deny to various individuals – especially people of color -- their constitutionally guaranteed right to realize the constitutional promise of republican government. Apparently both federal government and southern government officials read the text of the Tenth Amendment only as far as the term “states” and, then, stopped reading.
Indeed, both the state governments and the federal government have been conspiring before, during, and after the Civil War to deprive the people of their Ninth and Tenth Amendment rights. The governments of both the North and the South cared little about human beings – and there were over 500,000 deaths and millions of more devastating, life-altering injuries that occurred as a result of the War Between the States that gives expression to the proof of the truth of what is being said here.
Instead, the American Civil War was a tussle between governments each -- in its own inimical and reprehensible style -- seeking to assert supremacy over the people. In the process the people were denied many of the rights that had been allegedly vouchsafed to them in the amended Constitution.
In short, the states have made the same mistake as the federal government has made. They each suffer from the delusion that only governments should have power, and, yet, the republican form of democracy is intended to return power to the people rather than take power away from the latter.
Following the Civil War – e.g., during the period of Reconstruction -- there was a substantial transformation in the way in which the federal government and the justice system thought about the Tenth Amendment. During the War, the federal government expanded its powers considerably, and even though, once the war was over, some of the air was gradually let out of the expanded sphere of centralized, federal power, nevertheless, the constitutional landscape was never quite the same again.
However, looked at from a different perspective – namely, that of the individual -- the Tenth Amendment, up to and including the period of Reconstruction, actually had been suspended for virtually the entire duration of the American republic. After all, the rights and powers of the people under the Tenth Amendment consistently were ignored and undermined while different branches of government fought for control over the people and, in the process, frequently denied that people, per se, had any Tenth Amendment rights.
To be sure, following the war, Congress did create a series of Freedmen’s Bureaus. These Bureaus were responsible for constructing and implementing a variety of police powers with respect to the former slaves.
If the former slaves – or any other individuals for that matter – actually had any governmentally recognized Tenth Amendment rights, they could have gathered together to construct and implement their own police powers with respect to education, health, safety, and the like, as long as what was agreed upon did not affect the right of other individuals to exercise similar rights. If this had been done, there might not have been any need to create the Freedmen’s Bureaus.
In Congressional terms, the slaves had been freed. However, in constitutional terms, the people who were freed were still enslaved by governments who believed that governments had the right to rule over the lives of individuals in a whole array of areas entailed by the idea of policing powers.
An imperial expansion of federal incursions into state governance was made possible through the passing of the Fourteenth Amendment:
“Section 1 – All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.”
As a result of this amendment, the federal government began to encroach upon areas of governance that previously had been assumed to be reserved for the states. Ironically, within a hundred years after the passage of the Fourteenth Amendment, the three branches of federal government, along with the states began to act in collusion with one another to extend the protections of the Fourteenth Amendment to corporations who were required -- through the arbitrary, artificial, and unjustified invention of a legal fiction -- to be treated as ‘persons’ by the law and by governments. Over time, this legal fiction came to demand that all constitutional provisions -- including those of the Fourteenth Amendment -- be extended to corporations due to their alleged dimension of ‘personhood’.
As a result, corporations are often extended a variety of powers, rights, immunities, and privileges by state and federal governments to which actual human beings are not even entitled. Meanwhile, actual human beings are still not considered to have any Tenth Amendment rights independent of a government’s trusteeship or agency.
In 1883, the Supreme Court ruled that the Civil Rights Act of 1875 was unconstitutional. The ground for striking down the statute was because it was repugnant to the Tenth Amendment.
Of course, what was actually meant by this sense of ‘repugnance’ was that it was perceived by the Supreme Court Justices of that time to be encroaching upon the rights of states. What is truly repugnant, however, is the manner in which the Supreme Court decided that the rights of states should have priority over the rights of people and that the Tenth Amendment rights of the people should be abolished once again and ceded to the states.
[For a more in-depth exploration of the foregoing topics and many other issues, you might consider reading: The Unfinished Revolution: The Battle for America’s Soul.]