* This post is a follow-up to a brief post on the Tenth Amendment from last summer.
In the months between Abraham Lincoln’s election and the start of the Civil War on April 12, 1861, Americans became embroiled in something of a philosophical conversation about their relationship to their own national government. Was the American Union nothing more than a collection of states — a “club,” so to speak, that states voluntarily joined and could leave at any time and for any reason? Or was it something more — a creation of the people designed to perpetuate intact despite the desires of the people of any one state?
Abraham Lincoln addressed this issue in his First Inaugural Address as follows:
It is seventy-two years since the first inauguration of a President under our National Constitution. During that period fifteen different and greatly distinguished citizens have in succession administered the executive branch of the Government. They have conducted it through many perils, and generally with great success. Yet, with all this scope of precedent, I now enter upon the same task for the brief constitutional term of four years under great and peculiar difficulty. A disruption of the Federal Union, heretofore only menaced, is now formidably attempted.
I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.
Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?
Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”
But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.
And going back approximately four score and seven years, James Madison, in Federalist 45, spoke on the subject in response to Antifederalist concerns about how adoption of the Constitution would affect the rights of states:
Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of the individual States, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the new, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.
It took a bloody Civil War over the extension of slavery to enshrine Lincoln’s vision of a Constitution that created a perpetual union and placed the states in a position clearly inferior to the national government of the people. But though you might think the issue was conclusively settled in 1865, if you listen carefully, you’ll hear echos — some subtle, some not so subtle — of the controversy persisting today.
Arguments about states rights, federalism, and even overregulation, have roots in the ongoing debate over the nature of the Union created by the Constitution. So is the (somehow) revived debate about the merits of state nullification of federal law.
Ultimately, the Constitutional language and the history are ambiguous enough on this matter (as on many others) that it’s impossible to know exactly what the Framers intended when they created the Constitution. Almost certainly, they collectively had a number of intentions, and even more certainly, some of them changed their minds over time about just what it was they had done. And whatever intentions were for America at the start, the whole American experiment was substantially redone in the 5 years following the end of the Civil War.
But despite the general ambiguity, we do have some clues. And, one of those clues is, I think, the 10th Amendment.
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.
The 10th Amendment speaks conclusively about the reservation of powers not delegated to the national government–but it speaks ambiguously about to whom the non-delegated powers are reserved: ”to the states respectively, or to the people.”
The Articles of Confederation contained a similar provision to the 10th Amendment, which stated:
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.
While its Articles of Confederation equivalent is written in the active voice, from the perspective of a state, the 10th Amendment is fully passive. The 10th Amendment is also less agressive in that it does not expressly declare each state’s independence and sovereignty, and omits the word “expressly” when referring to delegated powers (presumably to comport with the existence of the Necessary and Proper Clause in the Constitution). Finally, the 10th Amendment speaks about “the people,” whereas the Articles of Confederation provision referred only to states.
As an aside, Wikipedia — citing an article by Henry Rollins (!) describing his visit to the National Archives in Washington D.C. – asserts that the phrase (“to the people”) was added to the 10th Amendment as a handwritten edition as the draft amendment circulated between houses of Congress . . . suggesting, I’m not sure what, exactly. But it is fascinating.
I’ve long been puzzled by the existence of the “or to the people” clause of the 10th Amendment. What should we make of it?
If it was the states that formed the Constitution, and therefore the states that delegated power to the national government, why mention the people at all? If it was the people, as a national whole, who formed the national government and delegated its powers, why mention the states? Maybe the drafters and ratifiers of the 10th Amendment (and we should remember, we’re technically talking Congress in 1791, not the Constitutional Convention) conceived of the national government is a creation of the people, who have delegated some power to their state and local governments and some power to their national government, and, as a result, retain whatever powers they have not delegated. Therefore, to the extent people have not already delegated power to any particular level of government, that power resides in the people. Or maybe the phrase “or to the people” was added simply to make it clear that the 10th Amendment encompassed all rights — rights that the people could delegate to their government (i.e., rights involving the exercise of coercive authority) and rights that they really couldn’t because they are conceived of as residing in individuals (e.g., the rights to speak and worship). Of course, the ambiguity could always be a matter of political expediency — perhaps the ratifiers couldn’t agree on what to put in the 10th Amendment and therefore comprised by including both the states and the people as the beneficiaries of reserved powers?
But — to me — the fact that the 10th Amendment mentions both the states and the people counts for something.
How much significance does this all have? I’m not sure. But it seems to me that the 10th Amendment’s ambiguity lends support Lincoln’s conception of the American Union (even pre-Civil War) and whatever consequences that may have.
Is it a secret long-game win for conservatives masterminded by the Chief Justice at the expense of the unwitting liberals now praising his name?
Connect!