Toward an Understanding of the 10th Amendment

(Originally written for the Patrick Henry Caucus)

Toward an Understanding of the 10th Amendment

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite…. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

-James Madison, Federalist Paper 45, pg. 292-93

The Founders of our nation had firmly in mind the idea that the government should be a body of “united states.” States were given particular sovereignty to ensure the federal government would be subservient to the states and not encroach upon those rights.

Article 1, Section 8 of the U.S. Constitution specifically enumerates the duties of the U.S. Congress.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

To ensure that the states understood what they were giving up to the federal government, Article 1, Section 10 was written as follows:

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it’s inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

With these careful articles defined, many of the framers of the constitution were still concerned that there would be confusion about which governing power should have influence on specific issues.  They ratified the 10th Amendment in the Bill of Rights as follows:

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.”

Thomas Jefferson put the proper division of powers this way:

The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the functions he is competent to. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the state governments with the civil rights, laws, police, and administration of what concerns the state generally; the counties with the local concerns of the counties; and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations until it ends in the administration of every man’s farm by himself, by placing under everyone what his own eye may superintend, that all will be done for the best.”

– Thomas Jefferson (Bergh, The Writings of Thomas Jefferson, 14:421.)

The purpose of the Patrick Henry Caucus is to bring together legislators and citizens in a common goal of reestablishing the sovereignty of the states and to assert its natural place in the framework of our country to ensure that we never again have a monarch over the people such as the King of England was to the original colonies.

For those of you that want to quickly test your constitutional knowledge, a few simple questions may be asked as to who has ultimate authority over the following areas of legislation, the federal government, or the state governments. We refer you to the list of federal duties in Article 1, Section 8 above, and call special attention to the 10th Amendment that all things not listed in section 8, or specifically prohibited to the states in Article 1, Section 10, are then the specific and inherent rights of the state.

1) Marriage issues-who performs, validates, and regulates marriage? Federal or state?

2) The health care of the citizens: federal or state issue?

3) The system of educating the populace: who has ultimate authority and sets standards?

4) Abortion and reproductive issues

5) Regulate the manufacturing and sale of goods within a state

6) The right to keep and bear arms

In summary, states are to concern themselves with civil and domestic issues, while the federal government concerns itself with national and foreign issues.

(Please sign the petition if you live in Utah, or contact those you know in Utah and ask them to sign. We need to teach our children these principles.)

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