Monday, December 2, 2013

The Liberty Amendment

No fundamental provision of the Constitution or the Bill of Rights is more neglected today -- or more thoroughly violated -- than the Tenth Amendment. One can see its violation in the teaching of American history and civics, legal theory, and what passes for "Constitutional Law," as well as in the everyday functioning and typical media analysis of American politics and government.

Our Constitution -- as the very words of the Tenth Amendment make clear -- was intended to be a document of delegated powers. The states that formed and ratified the Constitution were free and independent, having the characteristics of nations. As Raoul Berger stated after surveying the scholarly controversy about whether the nation or the states came first:

In sum, the colonies, having severed their common allegiance to Great Britain, were sovereign and independent of each other. Lee's resolution of July 2, 1776, attests such independence, and it is confirmed by the Declaration of Independence signed on behalf of the thirteen separate States. That independence was explicitly safeguarded in the Articles of Confederation, which merely set up a "league," and it was further recognized in the peace treaty with Britain, signed on behalf of the thirteen individual states. [1]

These free and independent nations were Christian states with Christian constitutions, declarations of rights, or bills of rights, and fundamentally Christian laws, [2] and they delegated -- and manifestly intended to delegate -- carefully restricted authority and powers to the central or national government created by the Constitution. By clear intention and unmistakable logic, they delegated only those powers stated in the Constitution -- and no more. As stated in Article I, Section 10 of the Constitution, the states forbade themselves certain powers they had not already been granted, but retained all other previously established authority and powers.

The Constitution therefore is a reserved powers document. The powers which the states have neither forbidden to themselves in the Constitution nor delegated to the central government in the Constitution are "reserved to the States respectively, or to the people" that is, they are reserved to each individual state. The "people" mentioned here cannot have reference to the people of the nation as a whole, for that would mean that the reserved powers ultimately default to the central government, which would make the Tenth Amendment meaningless, unnecessary, and absurd. It is clear then that unless a state (either through its government or people) explicitly delegates certain powers to the central government constitutionally, these powers remain in the exclusive domain of each state's government and people.

Our neglected, abused, and violated Tenth Amendment is more than an amendment to our Constitution; it is the anchor and guarantee of federalism, [3] a fundamental principle insisted upon by the states whose representatives framed and ratified the Constitution. Our Constitution contains protections for the reserved powers of the several states imbedded within the very design of our governmental system, which has federalism at its core.

Congress, the most important branch of our central government, is composed of representatives elected from each state. The House of Representatives consists of local representatives from districts within states. The Senate consists of senators elected from each state in general. Originally, Senators were chosen by the Legislature of each state. [4] The President is elected by the votes of electors from each state: the Electoral College. The number of each state's electors is based upon the number of the state's representatives in the House of Representatives (which depends on the population of the state) and the number of United States senators a state has (an equal number for each state, for each state was originally equal as a nation and each state is considered equal, regardless of population, today). If the Electoral College cannot decide who shall be President, then the House of Representatives makes the choice, and each state, no matter how many representatives it may have, casts one, equal vote. Members of the judicial branch of our national government are appointed by the President, who is elected by votes from the states, and confirmed by the U.S. Senate, whose members are from their respective states, originally to be chosen by their respective state legislatures representing the people of their particular states.

Thus the respective states have representation in every branch of our national government, which representation should protect the states against usurpations of authority and power by the national government and shield the state's people from a tyrannical central government's encroachments on their rights and liberty. The Tenth Amendment supplements this protection by clearly limiting our central government and obligating it to honor the states' reserved powers and their right of self-government.

The Tenth Amendment protects the self-government of the people of each state by protecting the powers which the state has neither assigned to the central government nor forbidden to itself in the Constitution. It thus protects each state's authority, right, and freedom to govern itself as its people and their representatives see fit (so long as they do not set up a non-republican form of civil government or violate the Constitution's prohibitions of certain powers to them). Our Tenth Amendment is thereby a key protector of the minority's rights and liberty, for the people of any state are but a minority of the people of the nation. It protects against abuses of power perpetrated by a national majority, a powerful minority, or a popular individual who may have seized the reins of power in the national government. The Tenth Amendment protects localism and local self-government against centralism -- the theory and practice of top-down, centralized government.

The Tenth Amendment does not represent an isolated idea in the Constitution; it is but an additional, explicit protection for federalism, and federalism is, as James Madison tells us in Federalist No. 51, an essential portion of the Constitution's system to secure the blessings of liberty. Federalism, Madison tells us, is a system of separation of powers and checks and balances between the central or national government and the state governments. This famous system was intended to protect liberty and justice by preventing the concentration of power, and consequent abuses and usurpations of power, in any one branch of the national government. The intent of federalism is to provide "a double security" to liberty. It is "double" because it supplements the separation of powers and the checks and balances of our central government with the separation of powers and checks and balances between the central government and the state governments to secure, i.e., keep protected, all the rights and liberties the Constitution and Bill of Rights originally intended to protect.

Federalism -- not the phony "federalism" as redefined by "political scientists" and power-hungry politicians, but the separation of powers between a would-be all-powerful central government and our states -- is more than a constitutional principle. Given the fallen nature of man, it is not time-bound but timeless this side of Heaven. It is essential to the protection of liberty and justice. The Tenth Amendment clearly intended to establish federalism as basic to both the interpretation of the Constitution and its application in constitutional law. That is why it has been known as the Liberty Amendment. No fundamental provision of the Constitution and the Bill of Rights needs more urgently to be restored to its rightful place in American political thought, constitutional law, and civil government, for its restoration is a necessary condition for the rekindling of justice and freedom in America.
  • 1. Raoul Berger, Federalism: The Founders' Design (Norman and London: University of Oklahoma Press, 1987), 47. 
  • 2. Archie P. Jones, Christianity and Our State Constitutions, Declarations, and Bills of Rights, Parts I and II (Marlborough, New Hampshire: Plymouth Rock Foundation, 1993). An excellent collection of the laws of the colonies before they became states is W. Keith Kavenagh, ed., Foundations of Colonial America; A Documentary History, 3 vols. (New York: The Confucian Press, [1973] 1980). Most of these laws, of course, were retained after independence. 
  • 3. "Federalism," simply, is the belief in and practice of contractually limited government, but it has resulted in, and become characterized by, the horizontal and vertical separation of powers between and among central/national and provincial governments with accompanying checks and balances between and among departments in those governments. 
  • 4. Article I, Section 3 of the Constitution states: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote." This constitutional provision was overturned with the passage of the Seventeenth Amendment.

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