Why the Tenth Amendment?

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So, by the name of our center everyone can tell we emphasize the Tenth Amendment, but why?  The Ninth Amendment is a much more powerful statement (in support of liberty) in the Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

That’s Natural Rights!!!

In the context of an enumeration of certain powers, this amendment completely acknowledges “natural rights,” at least as it pertains to the authority of the Federal Government.  Just think about it… this (mostly ignored) amendment states boldly (or in the least makes implicitly clear) that the Federal Government has no (that’s NONE, ZIP, ZERO) authority not given to it in the Constitution.  Not only that, but this amendment states that any rights which may have been overlooked at the time of the founding are automatically retained by the people.  What else is to be desired?  The right to smoke pot, the right to eat tiger meat purchased from the continent of Asia, the right to sell your kidney on the open market? All these rights and more are protected under this amendment.  What is missing?  Maybe the Second Amendment? Which states:

“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
Note: there are different versions of the 2nd amendment (based upon who passed them) this version is from the copy which was sent to the states for ratification.  The versions differ from each other in punctuation, and capitalization.

The people who love this amendment do so with the belief (understandably) that an armed populace will keep the Federal Government from infringing upon the rest of their rights, as per Thomas Jefferson’s famous quote:

“When the government fears the people there is liberty; when the people fear the government there is tyranny.

I love that quote. Certainly, having an armed populace seems like it could at least strike fear into the heart of the Federal Government (not to overstep their authority).  But are we really to suggest the way to control the Feds is to revolt?  Who among us could consider this action?  Most gun owners are militantly patriotic (even to the point of supporting unconstitutional power grabs).  This amendment is powerful, but except in the instance of a sudden all-out usurpation on the part of an unpopular Government, it needs something else… A General.
No Enforcement

The problem with the Ninth and Second Amendments is largely the same problem with the rest of the Constitution, namely that there is no enforcement mechanism. The Ninth Amendment basically says, that just because they did not have the room to add all of the rights one could possibly have, (IE., Right to privacy, unabridged movement, unobstructed trade, etc.) does not mean that we don’t retain them.  The Second Amendment states that the citizens must be allowed (by the Feds) to keep their own weapons. What it does not say though, is who will prevent the Government from infringing on them?  Kind of a “who watches the Watchmen” situation. The demonstrably wrong answer to this question is the U.S. Supreme Court!  If you look over the last 97 years (the time period since the state governments were disenfranchised by the 17th Amendment), you will notice a clear pattern of the Federal Government continuously growing in size and scope beyond any precept of constitutional compliance.  Another demonstrably wrong answer to the question ‘Who will prevent the Government from infringing on citizens’ rights’ is…. the “polls.”  In 1994, after the stunning Republican sweep of congress, how many federal departments where shut down or de-funded? None. In 1980, after Reagan rode into office, how much did government shrink?  Not at all.  In 2006/2008, when the Democrats took the reins from the Republicans (who largely ran on Bush’s promise to shrink government), how many countries did we leave (militarily)?… none.  No, there has to be something else…

So Who DOES Watch the Watchmen?

The STATES watch the Watchmen.  The Tenth Amendment actually has an enforcement mechanism for the entirety of the Constitution… the Tenth Amendment! (Which states):

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 Tenth Amendment is superior (in short, because) there is an entity which may (and must) act to protect the rights, not just of this amendment, but of the entirety of the Constitution.  Indeed, without the Tenth Amendment the Republic would have been at the point we are at now- with a government which no longer acknowledges any limits to its authority within it’s first century.  The State Governments are of which I speak – they are the ‘Enforcement Arm’ of the Federalist Republican System.  Without constant nullifications and threats of nullification, the Federal Government would have degenerated into a Police State long before now.  If there was no forceful push-back against the Sedition Act, who would be so naive as to say this would have been repealed?  If there was no threat of nullification (of conscription) by Daniel Webster, who would be so naive as to say we would not have been more militant in our earlier history? (It says a lot that after the 17th Amendment, when states became disenfranchised, we have been at war for well over 50% of the time)?  Who knows what other policies were prevented because ambitious federal politicians had to consider what the state backlash would be?  That is the reason the Tenth Amendment “trumps” the rest of the Bill of Rights.  When people say ‘the Second Amendment protects all the rest’ most people know what they’re saying – but in reality, the Tenth Amendment used to protect the Constitution as a whole.  Let us, as a State and as a People, ensure that in the near future, it does again.

In Liberty,
Tim Reeves
Tim Reeves is the State Chapter Coordinator for the Oregon Tenth Amendment Center.

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