How We Lost the Tenth Amendment

As I continue to reflect on the Supreme Court’s marriage ruling, I’ve wondered how we got to the point that the states lost control of an area of the law that, just two years ago, the Court acknowledged to be historically within their province. I have an idea, and the blame for it lies at our feet.

Recently, I was re-reading portions of the Federalist Papers to better understand the role of the federal judiciary as envisioned by our Founding Fathers. I was doing so that I might learn something from the past that would help me better understand what could be done in the present to reign in the Supreme Court in order to restore greater liberty to the people by returning more power to the states.

In Federalist Paper 46, James Madison said that “the powers proposed to be lodged in the federal government” (which includes the judicial branch) would be “as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union.” Madison said this to silence “all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments” by those opposed to the Constitution.

More particularly, Madison said the hope was that structure and limited powers under the Constitution would “partake” of a “spirit” such that the “new federal government” would be “disinclined to invade the rights of the individual States, or the prerogatives of their governments.”

This was true even with respect to the judiciary. In discussing the role of the judiciary in Federalist Paper 82, Alexander Hamilton said, “the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head,” which “head” obviously included the federal Judiciary.

So, if that was the intention, we have every right to ask what happened. Were not the other two branches of the “federal head”–the Executive and the Congress–infused with that “spirit” which was to protect the “rights” and “prerogatives” of the states?

Of course they were, but they have failed to use them. But why?

I think the answer can be found, at least in part, in Federalist Paper 78, wherein Hamilton said that “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”

In my view, that “fear” has been realized because expansive powers given by the Supreme Court to Congress (consider Obamacare, now known as SCOTUScare) and to the Executive have given rise to the aforesaid “union,” aggregating in “the federal head” great power by which their respective attentiveness to the governments of the states has been diminished.

I’m not necessarily big on conspiracy theories, but I am big on the fact that men are not angels, as Madison said in Federalist Paper 51. In other words, men lust for power and control and have since Adam and Eve decided to take things in their own hands. The Supreme Court gave Congress and the Executive powers beyond those envisioned by our Founding Fathers and, as they say, who wants to “bite the hand that feeds them”?

So, is the loss of our “rights” and “prerogatives” as a state the fault of our presidents and members of Congress over the years? No, the fault is ours. “We the people” have failed to understand our own Constitution and how our compound form of government–a limited federal government and state governments–was supposed to work. As a consequence, we’ve given our votes to presidents and members of Congress who either did not understand it or who wanted to aggregate power to themselves.

We have met the enemy and it is us.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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