by Gary Wood from the Tenth Amendment Center
Are the members of the 10th Amendment efforts supporting federalism or states’ rights? Should we link ourselves to John C. Calhoun and the notion of secessionism and abolishment or to restoration and original meaning as intended during the formation of our country? Do we deny the power of the federal government or simply stand against federal usurpation beyond their supreme authority under the U.S. Constitution? Is it our goal to require states to resume their power and authority afforded them in the protection of people’s rights to life, liberty, and property or to merely resist law and threaten to walk away if we are not given our way?
Last year a group of concerned citizens gathered to form a core group focused on state sovereignty under the 10th Amendment. Among the many agenda items was the naming of the group. Most were moved to create a name that included states’ rights. Initially my stance was against the name, historically states’ rights does not have the longevity or overall meaning encompassing our founders’ debate over the concept of federalism.
Most in the group were emotionally engaged by using the term states’ rights and I rationalized a compromise early would allow opportunity for clarification as we moved forward. It was an error on my part and it is time to correct the error as the enemies of the 10th Amendment too easily misdirect our debate away from federalism and into areas such as secession and racism.
Foundationally, states don’t have rights as a government, states have power. Power at the federal and state level is derived from the consent of the governed, the people, who do have rights our governing agreements were designed to protect. Inspired by careful historical study, years of debate, considerations, and the declarations of colonies, towns, and associations (prior to July of 1776) the fundamental rights of the people were articulated in the preamble of our Declaration of Independence.
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness – That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. (Emphasis added)
These words guided the early efforts in developing state constitutions and the Articles of Confederation. During the war and the years following its end many colonists realized the Articles of Confederation were inadequate or destructive to the ends of protecting the people under the general government. The initial confederation was simply not strong enough, though many would applaud that as a strength, due to the fear a strong federal government would eventually usurp the self-governing right of the people under their state constitutions (social compacts) subverting states’ power.
The Montesquieu concept of federalism, rejected when John Adams proposed it as a federal structure in 1776, was gaining favor as the states, under the Articles of Confederation, were moving toward a destructive end. Massachusetts’s constitution was framed under the concept and was a solid example of success. With an eye toward altering the federal agreement initially, the Constitutional Convention ( held in 1787) closed its doors so honest, heated debate could allow those assembled unfettered consideration of plans calling for the abolishing of the Articles and the creation of a new federal constitution aimed at delivering better safety and happiness for the people in all states.
Federalism was at the heart of these debates. When they concluded there were many learned, patriotic members who were convinced the constitution, sent to the states for ratifying debates and votes, went too far even if the original agreement did not go far enough.
If the great fear and prediction of these men – that the general government would entirely subvert the state governments, with a consequent loss of personal freedom – has not been realized, it will nevertheless be seen in the following pages that many of their objections were embodied in the future amendments, and the disregard of others has occasioned some of our most serious national questions. (Paul Leicester Ford, Pamphlets on the Constitution of the United States, 1888, p. vii) (Emphasis added)
Supporting the stronger approach for a general government were Hamilton, Madison, Washington, Franklin, John Jay, and other respected patriots. Opposing the stronger approach, out of fear federalism would be lost to nationalism, were Elbridge Gerry, George Mason, Patrick Henry, and still more whose names have been lost to our modern knowledge yet men highly respected in these formative times.
Writing under the title of “An American Citizen” Tench Coxe produced four letters which were among the first to be published in support of the constitution. His letters were aimed at citizens of Philadelphia with the same purpose as the better known Federalist Papers aimed at the citizens of New York during the time the U.S. Constitution had been submitted to each state for consideration. He was a member of the Annapolis Convention as well as the Continental Congress, and had written several pamphlets focused on the finance and commerce of the United States. He believed bicameral protection would guard against the usurpation of states’ powers. Speaking of senators he wrote;
They will also feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence, and are moreover to remain the immediate guardians of the people. (Letter Number II, On the safety of the people, from the restraints imposed upon the Senate, Sep. 17, 1787, Quoted from Paul Ford, Pamphlets on the Constitution of the United States, 1888, p.140) (Emphasis added)
Here Mr. Coxe mentions the rights of states yet his main focus is on the constitutional powers reserved to the states under the proposed federal constitution. In referencing ‘whose rights’ it is likely the rights of citizens within the state he was considering as this was the common thought of the times, people have rights while government has power, whether discussing federal or state government. His comments surrounding a call for a bill of rights were focused on his (and others) belief a federal level bill of rights was unnecessary and would create confusions of power since state constitutions were designed for the daily protection of the inalienable rights of life, liberty, and property. Listen to the explanation of this guardianship through proper implementation of the concept of separation of powers combined with checks and balances (part of the Montesquieu concept referenced above);
Besides the securities for the liberties of the people arising out of the federal government, they are guarded by their state constitutions, and by the nature of things in the separate states. The Governor or President in each commonwealth, the Councils, Senates, Assemblies, Judges, Sheriffs, Grand and Petit Juries, Officers of Militia…and many other officers of power and influence, will still be chosen within each state, without any possible interference of the federal government. The separate states will also choose all the members of the legislative and executive branches of the United States…Whether a majority of the Senate, each of whom will be chosen by the legislature of a free, sovereign and independent state, without any stipulation in favour of wealth or the contemptible distinctions of birth or rank, and who will be closely observed by the state legislatures, can destroy our liberties, controuled (sic) as they are too by the house of representatives? or whether a temporary, limited, executive officer, watched by the federal Representatives, by the Senate, by the state legislatures, by his personal enemies among the people of his own state, by the jealousy of the people of rival states, and by the whole of the people of the Union, can ever endanger our Freedom. (Ibid, p. 152-153)(Emphasis added)
Discussing the securities for people’s liberties was of fundamental meaning. The reason societies enter social compacts is for the unified protection of people’s rights against other societies that eye those rights as their own. We would not constitutionally align with each other if we were all of the virtuous nature of never interfering with one another’s life, liberty, and property. We would live, commercially interact, and socialize in the security of freedom without government. Yet we know this is not the nature of humanity. Since it is not in our nature to live as angels we must suffer to attempt governing with the least impact on our daily lives, at least that was the initial goals of our founders under the U.S. Constitution when it came to the federal or general government and its interaction with the states.
We the People of the United States,
1. in Order to form a more perfect Union,
2. establish Justice,
3. insure domestic Tranquility,
4. provide for the common defence,
5. promote the general Welfare,
6. and secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution for the United States of America. (Preamble)
Opponents felt even with the safeguards Coxe saw so clearly there were too many ways the devilish side of mankind could still interfere by usurping power and subjugating states and people. Factional interference was a key concern (which we see today at the root of the breakdown in the checks and balance system initially implemented) despite the Bill of Rights opponents fought to have included. It is interesting the historical debate over federalism led, in fact, to the first two major parties (another word for faction or special interest group) and the process of elections was altered early on with the ratification of the 12th Amendment.
One opponent, George Mason, was standing against the constitution at the risk of losing his long standing friendship with many including his neighbor, George Washington. Washington and Mason worked closely in organizing the non-importation efforts during the resistance to the Townshend Acts in the 1760s, were instrumental in writing the Virginia Declaration of Rights in the 1770s, and now in the late 1780s their friendship would be strained over Mason’s insistence without a bill of rights and stronger efforts to end slavery Virginia should not ratify the proposed document. It was his pen that is credited with much of the content of Bill of Rights based largely on his Virginia Declaration of Rights, which he is given large credit for in addition to credit for much of the Constitution of Virginia. On October 7th, 1787 he sent a letter to Washington outlining his objections as he stated, “You will readily observe, that my objections are not numerous…though in my mind some of them are capital ones.” Nor could Richard Henry Lee who felt the general government controlled too much power of the purse and sword to effectively protect the state powers and citizen rights from federal usurpation.
The debate over federalism would be calmed during the first meeting of the new Congress of the United States where James Madison led an effort to review over 200 proposed amendments, forwarded 12 amendments to the states for ratification, and eventually secured 10 new amendments known as the Bill of Rights. Key to the overall success of these 10 amendments were the final two. These were considered by Thomas Jefferson and others to be the very foundation for future success of the union formed under the U.S. Constitution. These foundational amendments are;
Article the eleventh [Amendment IX]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article the twelfth [Amendment X]
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.
As the new country began to operate under the guidelines set forth many challenges would occur keeping the debate of federalism alive. The Aliens and Sedition Acts would lead to the Virginia and Kentucky Resolutions creating what is known today as the Principles of ‘98. Jefferson’s embargo of 1807 to 1809 led New England states to band together and when the federal courts declared the embargo constitutional the Massachusetts assembly challenge the ruling. The War of 1812 would cause Connecticut and Massachusetts to refuse to send their militias as they believed the federal government acted unconstitutionally despite all three federal branches claiming their actions were constitutional.
So went the struggles of power between the federal and state governments with the inherent strength of checks and balances and the separation of powers.
According to Professor Eugene Hickok, the idea of states’ rights came much later, during the Nullification Crisis. Centered around the crisis was the issue of slavery and the improper treatment of South Carolina and other southern states at the hands of merchant concerns of the northern states. John Calhoun resigned the Vice-Presidency of the United States over a dispute with President Andrew Jackson.
The dispute centered on tariffs in amounts up to 50% on European goods. Calhoun worked on the “South Carolina Exposition and Protest” secretly while serving under John Q. Adams as vice-president. The resolution focused on the protest of South Carolina yet never passed as the assembly chose to wait for the new president, Jackson, to take office since they believed he would remove the tariffs. Hickok writes, “[b]ut it was widely distributed and read and became the conceptual and philosophical basis for the idea of nullification and “states’ rights” in the years leading up to the Civil War.” (Why States? The Challenge of Federalism, 2007, p. 44)
It is from this beginning history of state’s rights our opponents to federalism, state’s powers, and the duty of all those taking an oath to uphold our constitution like to point to. The effort is to easily paint those supporting our 10th Amendment as people who merely want to return to the days of slavery, separation, elitism, and turmoil. This is, in part, the fault of those of us involved in today’s efforts. We too easily use the label of states’ rights in defining our efforts when federalism or states’ power is more accurate and harder for our opponents to attack in an easy manner with history to back up their claims.
Members of the 10th Amendment effort support federalism. We must understand states’ don’t have rights but an obligation to use their governing power to defend their citizens’ rights whenever federal power oversteps its enumerated obligations. We are not secessionist, nor are we abolitionists but rather restorationists devoted to our original meaning and the foundational strength of the 9th and 10th Amendments combined with an acceptance of personal responsibility.
We honor the federal laws as supreme laws of the land when they are pursuant to, and in keeping with, the U.S. Constitution while we oppose all efforts for federal laws and mandates beyond their granted powers no matter what moral clothing they are dressed in. Unconstitutional law, even if clothed in good intention, is still bad law and the states are obligated to check it, and declare it as such. If an unconstitutional law is so universally good as to benefit the general welfare of all citizens in all states let the processes of Article V be invoked. Until such time we stand by the duty of states’ powers to protect us for many unconstitutional laws and mandates that began with good intentions have crippled our economy and usurped authority far beyond original meaning.
Let every member of every organization supporting state sovereignty and federalism cleanse the language so our opponents cannot easily attack the wrong target. Should they target federalism and the original meaning we can defeat them with truth. Freedom is not outdated, federal government is an agreement among the people of different sovereign states, the 10th Amendment has never been repealed, and virtue is still necessary for securing our posterity’s future rights to life, liberty, and the pursuit of happiness.