Tenth Amendment

[blackirish]

I have recently been doing research on the Constitution and the Convention of 1787 that compiled this document. I found a book of notes on the convention that was written by James Madison during the convention and later published as a record of the events and arguments that actually occurred during the convention. The Constitutional Convention was called for by the Continental Congress to address problems that were jeopardizing the existence of the Union of the separate colonies under the Articles of Confederation that were adopted as a guide for the Continental Congress. The country was close to political and fiscal collapse and the Convention was called to save the union. The Articles of Confederation simply did not give the national government the power needed to run the government. The states repeatedly ignored the advice of Congress and issued notes of credit that ran inflation through the roof and routinely ignored any attempts by Congress to make necessary laws for regulating trade or even enforcing the recent treaty signed with England to end the revolutionary war. The first official act of the Convention was to adopt a group of resolutions to spell out the scope of their undertaking. It is plainly agreed amongst the assembled members that a national government that is supreme to the various state governments is a necessity. Below are some of the original resolutions adopted at the start of the convention:

1) Resolved; that it is the opinion of this Committee that a National Government ought to be established, consisting of a supreme Legislative, Executive and Judiciary.

2) Resolved; that the National Legislature ought to be empowered to enjoy the Legislative rights vested in Congress by the Confederation, and moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union.

3) Resolved; that the Legislative, Executive and Judiciary powers within the several States ought to be bound by oath to support the articles of Union.

This is a partial list of the resolutions that the Convention agreed to at the start of their deliberations. Plainly, the NECCESSITY of a stronger national authority than previously existed under the Articles of Confederation was agreed to by all assembled.

The finished product, issued some five months later was to be ratified by Conventions called for the purpose of voting on the proposed new Constitution. It was a specific point of interest to the assembled members that ratification come from the people, not the state legislatures as the new national government would be sovereign to the states. See Article VII below:

The ratification of the conventions of nine States, shall be sufficient for the establishment of this constitution between the States so ratifying the same.

Notice there is no mention of State legislatures in this article. This was a specific point of discussion in the Convention. The following is an excerpt from a letter submitted to the Conventions by the members of the Convention:

It is obviously impracticable in the federal government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all- Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on the situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as the their situation, extent, habits, and particular interests.

In all our deliberations in this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid on the points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.

That it will meet the full and entire approbation of every State is not perhaps to be expected; but each will doubtless consider, that had her interest alone been consulted, the consequences might have been particularly disagreeable or injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish.

Another point of interest in the ratification of the Constitution by the conventions of the several states; the Constitution was ratified by all states except Rhode Island and North Carolina without the first ten amendments. There was no bill of rights when the Constitution became the law of the land. During the conventions, several states expressed their view that such a document was necessary and should be considered immediately but they all ratified the Constitution as the supreme law of the land without it. The first session of Congress under the new Constitution drafted the first ten amendments under the guidance of James Madison, serving in the House of Representatives for Virginia. Madison had argued against the necessity of such a document in the Constitutional Convention but acceded to the wishes of the several ratifying conventions in proposing the original ten amendments. The amendments were passed by the necessary 2/3 majorities of both houses and voted on by the various State Legislatures with all but Connecticut, Georgia, and Massachusetts ratifying them. Virginia was the last to ratify them on December 15, 1791 at which time they became parts of the Constitution and thereby the law of the land.

The Tenth Amendment reads as follows:

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.

This amendment is similar to Article II in the original Articles of Confederation, which reads as follows:

Each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

This amendment had been proposed by Thomas Burke of North Carolina in the Continental Congress in 1777. The original Articles of Confederation then under consideration for ratification in Congress held very vague definitions of states rights versus the power of Congress. Burke’s amendment or change to the Articles of Confederation was passed by eleven states with New Hampshire and Virginia being the only two states voting against its inclusion. It was to be one of the stumbling blocks to the success of the national Congress to legislate effectively as the states continuously used this clause to overrule decisions of Congress that adversely affected their own individual interests.

When the Tenth Amendment was proposed by Madison in Congress after the ratification of the Constitution, it was suggested that the word “expressly” be added to further clarify the rights of the States with respect to the national government. Madison, remembering vividly the fateful consequences of the inclusion of this term in Burke’s amended version of the Articles of Confederation, argued vigorously against it. “It is impossible to confine a Government to the exercise of express powers. There must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutiae.” The significant omission of the word “expressly” was pointed out specifically by Chief Supreme Court Justice John Marshall in his landmark decision of “McCulloch v. Maryland” which paved the way for broad use of the implied powers interpretation of the “necessary and proper” clause of the Constitution. In his decision Marshall points out the explicit omission of this word in an “effort to avoid more embarrassments similar to those caused by its inclusion in the Articles of Confederation.”

It seems the Tenth Amendment is the lynchpin of the “States Rights” argument and the “Implied Powers” argument simultaneously.



blackirish

[unionblue]

Rick, just a bit confused here. Now, for myself, when I argue with Ron/Oldreb, I always tell him that I cannot understand why he thinks that somewhere between the Declaration of Independence and the Bill of Rights (The Constitution), that there is something like a 'Get Out Of The Union Free Card.'

After reading your post above, I still don't see it. To help me understand, just where did most Southern politicians get the idea that the language of this Article said it was OK?

Thanks,
Unionblue

[blackirish]

Neil,
I don't have enough time right now to make a detailed reply, but from my own readings on the subject much of the southern theory of secession seemed to flow directly from the pen of John C. Calhoun. He saw nullification and secession as a kind of continuance of the checks and balances theory in that they would serve as a check on the majority by the minority. I will try and respond with more detail later.

blackirish

Sums it up in a nutshell, Rick. Neil, I continue to try and explain this to you. If a power is not given to the United States government by the Constitution, nor forbidden by that same document, then that right is given to the States.

Article I, Section VIII, delineates the powers given to the Federal Government, and a pretty neat list it is, too. HOWEVER, and albeit not for me to try and interpret the Constitution, because I am just a dumb Southron, in this list:
Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: 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;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: 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.

I can not find in one single place where it says, the Federal Government has the right to come into a state that is not a part of the Govermnent and drag it fighting and screaming into or back into the Federal clubhouse.

Here is what the States CAN NOT DO: Article I, Section X, Clause 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Clause 2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

Clause 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

There is NO CLAUSE, NO ARTICLE, NO SECTION in the Constitution where a state is forbidden to leave the Union of the United States. Hell, it is not even hinted at. Slavery on the other hand was spoken of. And Lincoln and the ****ed abolitionists that caused this war spoke regularly of ending slavery.

As for the Bill of Rights being passed as the SUpreme Law of the Land when the Constitution was ratified, no they were not. I have never said they were. BUT they were ratified prior to 1860. They were part of the Law of the Land prior to 1860. The last state ratified the first ten amendments in 1791. That made them law and they were still law in 1860. That means they were then and therefore applicable. Amendment X, "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." is pretty binding when it says, the Powers not delegated to the United States by the Constitution, nor prohibitied by it to the states", to those powers listed above.

And I know you still won't understand, because you just have a die-hard (****ed die-hard) mindset that prohibits you from understanding the Southern politicians mindset in 1860 (or the mindset of your Southron friends in 2002!).

But that's ok - if you don't spend too much time in your air-conditioned cabin next weekend, with cold drinks in the refrig, a nice soft bed, roof over your head, etc., I might get a chance to discuss this with you in person. Maybe...


my best to you and Rick. I am gonna go now and take about 10 aspirin, and maybe have a drink of Jack...

oldreb

[blackirish]

Here is what the States CAN NOT DO: Article I, Section X, Clause 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Well.....it seems we have here clear proof that some southern states were in fact violating the Constitution by forming the Confederate States of America which was by an definition a "Treaty, Alliance, or Confederation".

Clause 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

The same applies here, The Confederate States of America was implicitly an illegal compact between states under the Constitution.
Since the formation of the Confederate States of America was a violation of both of these clauses which specify what a state CANNOT do under the Constitution we are then led to see what power the Federal Government has to stop such violations:

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

If the southern states had no already implicitly proven that they were violating the Constitution by forming the CSA, they then proceeded to add to the proof that an "insurrection" was afoot by siezing federal property in several states, and attacking and reducing a federal fort in South Carolina.

blackirish

[unionblue]

Ron, It's not that you try to explain to me, it's that you try to convince me of something I cannot see. I understand the concept you repeat, that if the Federal Government don't have it or claim it, it reverts to the States. I just try to understand where in the heck the South saw that secession was something listed in the Constitution. Nowhere is it mentioned and yet Rick can show me with the above posts what the States cannot do. Wishing for something don't make it so.

With all the other information we have generated in our little series of debates, I also feel that the Supreme Court had ruled on the idea that the States did not have any type of special power over the Federal government nor give any special consideration that the States had formed the Union. The paper trail exists no matter how I read it, it says only certain things to me.

Have a nice day and get some sleep. I worry about you.

Unionblue

Rick and Neil
What you posted Rick is absolutely true, for a state within the Union. However, starting with South Carolina, these states removed themselves from the Union. They each voted to (and I hate to say this because this is part of a previous post) leave the union and remove themselves from the Federal government.
After doing this, the Constitution and its authority were no longer valid in that state.
Same thing happened in 1776 and 1832. Except in the first, they were called Colonies of the King, and in the second they were a province of the emperor.
Well, that's my story and I'm sticking to it.
What you guys can't or won't see is perfectly clear to me. And Neil, I have never said the states had any special power over the FedGov, just different "rights". That's what we're fighting for, our "rights".
Have a great weekend boys. I am off to explore Ohio.
oldreb

[blackirish]

Ron,
I tend to agree that it was the same thing that happened in 1776; an ILLEGAL attempt at insurrection. There was no LEGAL basis for either attempt and, as is the case in every revolution, they must be supported by forces strong enough to resist the enforcement of the LEGAL authority.
Our point of contention is that the states had any LEGAL right to secede unilaterally. I have yet to read a plausible legal context for such a right. This right, from my own research, seems to have magically appeared in 1828 when John C. Calhoun conjured it up. Even then, it was seen as highly dubious by most of the country; including the great majority of the south. Only when the strains on the bonds of Union were applied by continued agitation over slavery did it become gospel in the south.
Secession was not exactly an idea invented by Calhoun, only the idea that it was somehow a LEGAL power under the Constitution. It had been hinted at twice before in the relatively short history of our country. In the Essex Junto around 1803 and in the Hartford Convention around 1812. There is adamant proof in all three instances that most of the people involved had no suspicion that any of the three could be carried without the force of arms. This includes the southern attempt in 1860. Why else did they IMMEDIATELY call for the raising of 100,000 troops to defend their borders? Why else had large numbers of arms and munitions been systematically shipped south before the crisis?
I hope you have a great weekend in Ohio. I would love to come and see the re-enactment and sit around and chew the fat with you (even in the midst of an armed camp of Mississipians <smiling>).

best regards,
blackirish

[unionblue]

Ron, what amazes me is that in one sentence I can agree with you 100%. And then at the very next sentence, I disagree with you 100%!

Let's take the one where you say, "They each voted to leave the union and remove themselves from the Federal government." No problem there, exactly right and a historical fact.

Next sentence, "After doing this, the Constitution and its authority were no longer valid in that state." Just because it says so? With no legal framework (in plain view, that is) and with historical precedent (Supreme Court cases, nullification nullified by Jackson, Southern leaders saying prior to 1850 that secession is illegal, etc.) that says, this just ain't so? I agree to revolution but not some legal justification that is NOT there for me to read or study.

It is not that I won't see it. Ron I truly can't see it when "it" is not there.

Enjoy your weekend,
Looking forward to Buffington Island next weekend.

Unionblue

[iron_brigade]

Dear Ron,
I would like to preface this post by stating that I don't agree with anything you have ever writen.I want this up front.In my opinion you are so steeped in your view of "Southern Heritage" that you have grown insensitive to the fact that you are making the North out to be the bad guys.In this you are trampling on the truth.
You write,"However,starting with South Carolina,these states removed themselves from the Union.They each voted to leave the union and remove themselves from the Federal government.
After doing this, the Constitution and its authority were no longer valid in that state."
Tell me Ron how can this be?!Artical VI of the Constitution specifically 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,any Thing in the Constitution or Laws of any State to the contrary notwithstanding"Its clear Ron, the Constitution prohibits any state from creating any condition were the Federal Government is not the supreme law of the land.The ironic fact is that what John Brown did at Harpers Ferry was Constitutional under the 10th Amendment and what the five Slaveocracys did in 1860/1861 was not!!

Regards
Greg