Over the years I’ve noticed the 10th Amendment is often used as a form of inappropriate refuge by those who reject America making forward progress in the area of personal liberty.
Whenever a federal court recognizes a fundamental right with which a certain group disagrees, people within that group howl like stuck pigs and claim the federal courts have no authority to recognize fundamental rights. In support of their claim they often reference the 10th Amendment.
The 10th Amendment is the 10th article in the Bill of Rights, and it states, “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 purpose of the 10th Amendment was to re-affirm, for the comfort of the anti-federalists back in 1791, that the federal government was limited to its enumerated powers, and thus could not usurp the authority of the states.
The most vocal folks screaming that the federal government has no authority to recognize fundamental rights of American citizens are most often bigots looking for a way to keep those they hold in disfavor from being recognized as equals before the law. Their overly simplistic view is that if something doesn’t appear in Article I, section 8, of the U.S. Constitution, then it can’t be done by the federal government. And for the most part, that’s true. The problem is that such an “absolutist” reading of the 10th Amendment attempts to shorn the federal government of the most important attribute of government – as expressed by Thomas Jefferson. But before I explain that, let’s me give you a quick analogy.
What is the seminal quality of…glass? I think we would all agree the preeminent attribute of glass is the ability to see through it. Let’s say we made a constitution dealing with glass. In that constitution we enumerated all the things that people can do with glass. The enumerated purposes might include using two-way glass – you know, the kind that is hard to look through in one direction but works fine in the other. It might discuss tinted glass for privacy, or heat reduction. It might include painting over the glass to cancel out its defining attribute. It might detail where glass could and could not be used. You get the point. But no matter what that constitution contained, it simply cannot eradicate the fundamental attribute and purpose of glass, which is looking through it.
Does government have a fundamental attribute that cannot be altered by any constitution provision? Thomas Jefferson believed so. And I’m in agreement with him.
In the Declaration of Independence Jefferson wrote, “We hold these truth to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among those are life, liberty and the pursuit of happiness — That to secure these rights governments are instituted among men…”
Did you catch that last stanza? “…to secure these rights governments are instituted among men.”
Jefferson expanded on this statement in various communications with others over the years.
The main object of all science, the freedom and happiness of man… Are the sole objects of all legitimate government.
The true foundation of republican government is the equal right of every citizen….
It is to secure the rights that we resort to government at all.
The equal rights of man and the happiness of every individual are now acknowledged to be the only legitimate objects of government.
An elective despotism was not the government we fought for….
That last one is particularly important because the crux of the corrupt application of the 10th Amendment is that the issue stays within the state so that whatever 51% (or more) of the voters say, goes. But when we are dealing with men’s rights, how can anyone who takes that approach call himself an American? Our rights are not subject to the will of the majority – and never have been. And no true American could image they are, or should be.
Madison, during the Congressional debates over the establishment of the Bill of Rights, stated that if the United States government could not violate these rights, than neither could the governments of the states. He was expressing the principle that our unalienable rights are superior to any government action, so once rights are recognized, NO government may abridge them – state or federal.
Those who would use the 10th Amendment corruptly for their personal agenda are also hypocrites. If a state’s Supreme Court ruled, as an example, that the Right to Keep and Bear Arms was not a right of the citizens of that state, do we imagine these folks would simply shrug their shoulders and say, “Oh well, the state’s highest court has spoken. That’s that; no more guns for me.”?
How about if 51% of a state’s legislature voted that Christianity would no longer be permitted in that state. Do we imagine these people would simply say, “Well gosh. 51% of our fellow citizens have spoken through their elected representatives. Honey, tell the preacher we ain’t comin’ no more – and thrown them Bibles out; we won’t be needed them any more.”?
Of course we know that is not even remotely how they would react. They’d have their cases filed in federal court before you could say, “federal supremacy clause”.
Obviously these folks are hypocrites attempting to misapplying the 10th Amendment to satisfy their own personal bigotry. But in doing so they attempt to reject the one single attribute that makes a government legitimate; the protection of fundamental rights. They would have you believe that the 10th Amendment shorn the national government of that one salient attribute that makes any government legitimate; the power to recognize rights and protect them.
To reference back to my earlier analogy, they would attempt to say an amendment can deny that the one defining quality of glass is seeing through it. Well, just as no amendment could alter the reality that the preeminent purpose of glass is seeing through it, no amendment can alter the preeminent purpose that legitimizes any government; recognizing and protecting rights.
During the Constitutional Convention, accusations were made that the proposed national government would oppress the rights of the people within the states. Madison argued in rebuttal that history showed the oppression of minorities was far more common in smaller jurisdictions, and much less likely when the body politic was large and more diverse. He expressed that local customs and prejudices were most often the cause of minorities being oppressed. The history of this country makes Madison look like a prophet.
What the bigots of today are attempting to do is to remove the recognition and protection of rights from that larger, more diverse, jurisdiction, and make them the exclusive domain of regional jurisdictions in order that their local prejudices can carry the day.
But fortunately for true Americans the 10th Amendment does not shorn the federal government its fundamental attribute that brings legitimacy; the authority to recognize and protect the rights of the people of this nation – most notably to protect minorities from the bigotry and prejudice that can, and do, exist regionally.
In closing, may I offer an analogy for my Christian friends. Christ condemned the Pharisees and Sadducees for applying the Law robotically; applying merely the letter of the Law, without regard to the true meaning and message intended by it. And of course the Pharisees and Sadducees didn’t do that by accident, did they? No, that’s why Jesus rebuked them. Perhaps no matter what one’s agenda might be, one should not act like the Pharisees and Sadducees; presenting the Constitution in such a way as to read out it, its most fundamental attributes.