Sunday, July 3, 2011

Why was the word explicit removed from original drafts of the Tenth?

I've not been writing much here lately. I am currently working on a book that I will hopefully have finished up by late this summer. So, I've been dedicating most of my writing to to the book, and of course to the TAC website.

But I thought I would take a moment to share an exchange with a reader at the Huffington Post website. I commented on a story that made an excellent case for the Tenth Amendment and its importance today. I included in my comment the Madison quote outlining the scope of federal power.

A reader going by the tag Mikel Moore wrote the following.

You conveniently did not give the Madison quote wherein he states that the word 'explicit' was removed from the express rights clause to give the federal government more wiggle room.

Then the post civil-war amendments changed that balance of power and allowed the federal government to impose on the states. The Bill of Rights did not apply to the states prior.

Here is my response:

The Madison quote from the Federalist Papers is particularly relevant because it outlines the role and scope of the federal government that was “sold” to the states and the people. And it was upon that understanding that the ratifying conventions adopted the Constitution. So whether some of the framers desired a more powerful, national government, and some certainly did, is not at all relevant. Unless of course you accept the idea that an agreement based upon bait-and-switch remains binding even after the switch.

But yes, the word “explicit” was removed from original drafts of the Tenth Amendment. The original proposal came from Massachusetts.  Many didn’t see the point, arguing that the Constitution carefully enumerated the powers of the general government. It was self-evident that this excluded any other power.  Designato unius est exclusio alterius – a legal maxim meaning, "the designation of one is the exclusion of the other."

But many fearful of federal overreach didn’t want to rely on the assurance of proponents and insisted on an amendment making this explicit. (And they seem pretty insightful at this point in history.)

“It removes a doubt which many have entered, and gives assurance that, if any law made by the federal government should be extended beyond the power granted by the proposed Constitution, it will be an error, and adjudged by the courts of law to be void.  It is consonant with the second article in the present Confederation, that each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not, by this Constitution, expressly delegated to the United States in Congress assembled.” – Sam Adams

So why was explicit removed? (The word clearly was also considered) It was in essence to give “wiggle room” already provided for in the Constitution. The fear was that leaving explicit in the Tenth would in effect repeal the “necessary and proper” clause. It was always understood that the federal government would have powers not “explicitly” enumerated, but incidental to carrying out those enumerated functions. Necessary and proper was a legal construction with a specific meaning, basically that any necessary and proper power had to be 1. Necessary to carry out the original purpose. 2. A customary way of carrying out the original purpose. 3. Incidental power could never be greater than the original power granted.

As for the 14th Amendment, it did not repeal the 10th. The validity of the incorporation doctrine, a function of courts, is up for debate. But you certainly cannot argue that the 14th granted additional power to the federal government.

I always find it fascinating that the same people who rail against the concentration of corporate power in an economic context don’t bat an eye at concentrated power in the political arena. Both are equally nefarious for the same reasons.