You could easily get the impression that the U.S. Supreme Court has
banned public displays of the Tenth Amendment. Actually, this hasn't
happened, at least not yet. Anyway, adults can still read it in the
privacy of their own homes, if they can lay hands on a copy. And in
the age of the Internet, it would be hard to suppress completely.
But a conspiracy of silence, if observed by enough people, can be
as effective as an outright ban. And since at least the days of Franklin
D. Roosevelt, that lump of foul deformity, most employees of the Federal
Government have tacitly agreed to avoid all mention of the Tenth, which
encapsulates the meaning of the U.S. Constitution.
The silence was broken in 1996 by Bob Dole, who, in a desperate attempt
to salvage his losing presidential campaign, said he always carried
a copy of the Tenth in his wallet. Not that anyone would have been
led to suspect this from his long voting record.
The Tenth is often referred to as "the states' rights amendment," but
that's not quite accurate. It speaks of powers, not rights. It says
that the powers that haven't been "delegated" to the Federal
Government in the Constitution are reserved to the individual states
and the people.
This was an attempt to make the Constitution foolproof. Nice try!
At the time, it may have seemed that nobody, not even a politician
or a lawyer, could miss the point: The Federal Government could exercise
only those powers listed in the Constitution. Whatever wasn't authorized
was forbidden. The basic list was found in Article I, Section 8. It
was pretty specific: coining (not printing) money, punishing counterfeiters,
declaring war, and so forth.
In principle, simple. Unfortunately, however, it runs up against
the politician's eternal credo: "In principle, I'm a man of principle.
But in practice, I'm a practical man."
So the politicians, all practical men, began their endless but fruitful
search for powers other than those listed -- "implied" powers
that weren't spelled out in the text, but were "necessary and
proper" for the execution of the explicitly enumerated powers.
The very practical Alexander Hamilton argued that a national bank was
necessary and proper in this sense; but Thomas Jefferson hotly denied
it, and soon the two men were wrangling over what "necessary and
proper" meant, reaching an impasse over the word "and."
Among the most creative interpreters of the Constitution was Abraham
Lincoln, who found he needed all the implied powers he could get his
hands on in order to prevent peaceful secession by the exercise of
violence. As Professor Harry V. Jaffa approvingly puts it, Lincoln
soon "discovered" a huge "reservoir of constitutional
power" that suited his purpose. Nobody had discovered this "reservoir" before.
Later such reservoirs would also be called "penumbras, formed
But the richest cache of penumbras and emanations was later found
in Congress's power "to regulate commerce with foreign nations,
and among the several states, and with the Indian tribes." Especially
since the New Deal, the part about "the several states" has
gotten quite a workout. It is now interpreted to mean that the Federal
Government can "regulate" just about everything we do, from
sea to shining sea. This makes the rest of the Constitution pretty
Where does this leave the Tenth Amendment? Oh, that. The Supreme
Court has held that it's just "declaratory," a mere "truism," a
trivially true acknowledgment that the states retain any powers they
haven't actually "surrendered" (the Court carefully avoided
the fraught word "delegated").
To call all this "legislating from the bench" is an almost
imbecilic understatement. It inverts the plain meaning of the Constitution,
making it mean the opposite of what it actually says. It's nothing
less than revolution by means of "interpretation."
If the power to "regulate commerce ... among the several states" had
been as broad as the courts now say, Congress could have abolished
slavery, imposed (and repealed) Prohibition, and given women the vote
by mere statute, without all the bother of amending the Constitution
Notice that the Tenth Amendment is one of the few passages in the
Constitution in which the Federal judiciary hasn't discovered reservoirs
of penumbras and emanations. I wonder why.
Copyright © 2010 by the Fitzgerald
Griffin Foundation. All rights reserved. This column was originally published
by Griffin Internet Syndicate on February 2, 2006.
Joe Sobran was an author and a syndicated columnist. See bio
and archives of some of his columns.
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