Sunday, April 5, 2009

Tenth Amendment redux

Numerous entries found in the archives of this blog deal with the Tenth Amendment Resolution movement specifically, and/or otherwise reference the tenth amendment as being, for all intents and purposes, a dead letter insofar as its intent as part of the Bill of Rights is concerned.

In this October 15, 2008 entry I offer a proposal for shoring up as well as maintaining the importance of the tenth amendment for generations to come, and for preventing the judiciary's ruling on the matter.

Here is the text of the proposal as I wrote it in October:

Section I: The People reserve to themselves and to the states wherein they reside all powers not expressly delegated to the United States by the Constitution.

Section II: The several states which at any time are part of this union, and from the date of the ratification of this article, shall at every fifth leap year succeeding, call a convention for review of the Constitution, and on the applications to Congress of two thirds of the state conventions for Constitutional review, the Congress shall be compelled to call a convention for addressing the states' concerns. The states shall determine, by two thirds majority vote, and at every third convention interval, by what mode to direct the Congress to act, but the fifth article of the Constitution, or any provision thereof, shall not be infringed.

Section III: The People prohibit review of this article by the Federal Judiciary, or preemption thereof by the United States, but the Judiciary may act as advisory to the Congress.


Anonymous said...

I think that over-enumerating the Tenth would fall into the very trap that the Founding Fathers wished to avoid.

First, they didn't want a document that was overly burdened with legalisms, but one that could be read and apprehended by the average voter (of course, suffrage being what it was then, that was easier in their day). Second, they didn't want too much trust to be put in the document itself, but relied on the natural struggle over authority to curtail excesses by any given part of the government. Third, they specifically wanted to avoid the trap of disparagement by non-enumeration.

I have listed those in the order of importance I believe the founders would have assigned them, but as I believe that all these goals are simultaneously achievable, the relative import doesn't really matter.

The first issue has to be dealt with by improving our education system (the first and most significant improvement would be to abolish the current monopoly, which is being supported and run by an over-reaching government) and by re-thinking our suffrage requirements. While the old property-based system had some good points, I think it was, on the whole, properly abolished. Literacy tests have an evil history and I don't trust them even in concept...whoever controls the content of the test controls the demographics of the vote. My sister thinks women shouldn't vote but I don't see how men are better qualified.

I would propose that the vote be extended on the basis of...the Second Amendment. To qualify to vote, you must present documents proving you own and maintain a militarily useful weapon with which you are personally proficient. Just my own crazy idea, but I like it. It would give suffrage real teeth while reminding every voter where their democratic rights originate.

The solution to the second problem is to reestablish the body of the citizens and their state governments as contestants in the struggle for power which has in latter years been resolved by a creeping conspiracy among the Federal branches of government.

Strengthening the Second Amendment and repealing the amendment which gives the Federal government power to sap the economic resources of the individual would go a long way to solving that problem, but a greater sense of parochialism in government is also necessary. The various states should have distinct laws from each other to the extent feasible under the faith and credit clause and subject to the guaranteed rights of the individual citizens.

It's very sad that so-called "lovers of freedom" interposed the vital principle of distinctive state laws to defend slavery (and later versions of economic servitude) such that this principle has been all but destroyed. It's even sadder that those who fought for the liberation of the captive should have heedlessly destroyed such vital safeguards of liberty, but the past is past.

As for the third issue, I think that practical insurance that the real power of government resides in the people themselves will solve it well enough.

Terry Morris said...


I can't find a single issue in what you said above that I could seriously disagree with. And if those are the kinds of comments you're going to post at this site, harking back to your "flamethrower" remark in another thread, you needn't worry with that here.

I've made the argument many times that some of the language in the Constitution was intentionally left ambiguous for good reason, e.g., the "takings clause."

As for the need to rethink suffrage, I couldn't agree more. We also need to clarify the meaning of the fourteenth amendment "birthright citizenship" idea, not that the interpretation put in practice in our time aligns with the intent of the framers of the fourteenth.

As for the tenth amendment, I'm satisfied to leave it be exactly as the framers installed it as part of the constitution if the People come to the realization of its meaning in context of the whole Constitution, and all laws made in pursuance thereof. Sadly people don't read the Federalist Papers and other founding documentation anymore. Indeed, they generally don't know the difference between the Constitution and the Declaration of Independence, as evidenced by a recent study done on the subject.

But anyway, excellent comments. Thank you.

Terry Morris said...


Since you mentioned limiting (or rethinking) the franchise in your comments, I thought you might be interested in reading this discussion on the topic. Others on the same topic may be found at the site by using the search utility in the upper sidebar of the site's main page.

Anonymous said...

I can sympathize with the desire to amend the Constitution to improve its protections of liberty. But of course the big problem currently isn't what the Constitution says but the lack of respect for what it says.

As for suffrage...I think that it's almost certain that Americans will have adopted some kind of militia service requirement in the near future (along with moving back to a backed currency rather than fiat money). My minimalist wording doesn't cover concepts like "contributing to the common defense" and so forth, though such a provision would be likely.

I think that in a stable republic it should be rare for anyone to have a practical chance to do that beyond symbolic gestures (though of course such gestures are important in maintaining the stability of a republic).

It would be awesome if election day featured a rolling inspection drill at the polling place (would make it hard to carry out a program of voter intimidation too, eh?). If there were a simple militia service requirement, it could be quite the event.

But aside from the aesthetics, I'm not really invested in the idea. Healthy democracies have superior military power to other forms of government, particularly when rooted in the militia traditions (and free market for the force multipliers). So they'll naturally predominate in a competitive environment as long as the idea is there.

It's the republic which is fragile and needs to be carefully nurtured. A republic is in constant danger from within and without, because it depends for support on the reason of the polity. Reason is always vulnerable to irrationality, particularly when society insulates people from the consequences of their own actions. All societies must do this to a certain extent, as families do in childrearing.

But to maintain the rationality necessary to a republic, society must also actively encourage opportunities to learn through trial and error. It has to find a balance such that the consequences of error are survivable yet still instructive.

In the end, civilizations as a whole tend to find that balance, but the natural process involves the fall of individual nations, which is wasteful and unfortunate.