by Dr. Clyde Wilson
October 1995
Hearing Senator Dole babble about the Tenth Amendment is a sad reminder as if more evidence were needed of the terminal ignorance and insincerity of our rulers. But one cannot expect a politician who has been a (very successful) functionary of the imperial state all his life to understand that the delegation of powers by the people has to do with something other than how the (shrinking) pie will be divided up. The Tenth Amendment does not have anything to do with who will pay for "motor voter" bills or "free" school lunches or any other of the "benefits" that our rulers provide us for the inestimable privilege of serving them. It has to do with the basic function of the Constitution: that is, the limitation of government.
Let us peruse this forgotten relic closely:
"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 amendment is the capstone of those amendments adopted in concluding the process of ratification of the original Constitution. It follows a long list of "shall nots" directed at the federal government and in particular the Congress. More than that, if we are to believe Madison and nearly every other Founder, it provides the fundamental key to construing the Constitution the Constitution as ratified by the people of the States (old and new) not the opinions of the Philadelphia projectors nor the extra-constitutional imaginings of Publius so beloved of shallow political philosophers. The Constitution as validated by the consent of the people of the States is defined by the Tenth Amendment. The federal government, in all its branches, has those powers delegated in the instrument. All other powers are reserved.
But the great tragedy of American history is that the Tenth Amendment is not self-enforcing (else there would have been no need for the previous nine amendments). The Attorney General of South Carolina is suing in the federal courts on Tenth Amendment grounds against the unfunded mandate of the "motor voter" bill. This is all to the well and good as it contributes to educate the public and a favorable court decision will be helpful. Nonetheless, to ask the federal courts to validate the Tenth Amendment is to give away the game before the first whistle. The people of the states have not delegated to federal judges the right to decide what their rights are. This is a power they have reserved to themselves.
The Tenth Amendment is not to be left up to the federal government to interpret for itself. The essence of our Constitution is that Power must not be allowed to define its own limits. It must be checked by other Power. It is up to the States themselves to make the Tenth Amendment good, to enforce it by every means at their disposal. The name of this country is, after all, the United States, a confederation, and not the American Empire.
Dr. Wilson is professor of history at The University of South Carolina in Columbia, the editor of the John C. Calhoun papers.