Wednesday, September 7, 2011

I'd Like to Plead the Tenth Amendment

Sometimes during criminal justice proceedings, a defendant will "plead the Fifth Amendment" protection against being compelled to witness against oneself.

The various Tea Party movements and their supporters would like to "plead the Tenth Amendment."

What is this amendment and how did it come about?

When the Congress under the old Articles of Confederation submitted the newly proposed Constitution of 1787 to the American people for their approval, many Americans opposed it. One widespread argument against the new Constitution was that it contained no bill of rights. Some Americans feared the stronger federal government created under the Constitution of 1787 and vowed to oppose its adoption unless it included a bill of rights.

The most prominent supporters of the new Constitution, however,  resisted efforts to amend it with a bill of rights. They made several cogent arguments.

First, the Constitution granted to the new federal government only specific enumerated powers. Moreover, it contained numerous prohibitions of other powers. Alexander Hamilton in the Federalist No. 84 argued that a bill of rights is not really appropriate for a "constitution like that under consideration, which is merely intended to regulate the general political interest of the nation, than to a constitution which has the regulation of every species of personal and private concerns." Later in that paper, he asserted that "the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS."

Second,  Hamilton suggested that a bill of rights might actually be construed to expand government powers beyond what the Constitution allows. It could be argued that the new federal government possessed the powers to act in any way not forbidden by specific provisions in a bill of rights.  According to Hamilton, provisions of a bill of rights "would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted."

James Madison made a similar argument. In addition to representing Virginia in the Constitutional Convention, he also served as a delegate to the Virginia state convention that considered ratification of the Constitution.  At that convention, he opposed the addition of a bill of rights. He argued that "by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication that those rights which were not singled out were intended to be assigned into the hands of the General Government . . . "

Despite the opposition to a bill rights by supporters of the new Constitution like Hamilton and Madison,  the promise of a bill of rights eventually contributed to the ratification of the new Constitution.

The first Congress under the new Constitution subsequently worked on the creation of a bill of rights that adressed the concerns about the new stronger federal government and the natural rights of Americans. Most of the specific provisions that Congress incorporated into the first eight amendments came from suggestions proposed in the various state ratification conventions.

The the Ninth and Tenth Amendments, however, addressed those very concerns expressed by supporters of the Constitution who also opposed amending it with a bill of rights. Both amendments intended to prevent the government from construing the bill of rights to actually limit the rights of the people or from claiming powers  not specifically delegated to it by the Constitution. Those two amendments read as follows:

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not e construed to deny or disparage other retained by the people.

Tenth Amendment: The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the Sates respective, or to the people.

These two principles seem to have been lost in the two hundred years since the drafting of the Constitution. The Ninth and Tenth Amendments have been trampled upon by Presidents, Congresses, and the justices of the Supreme Court.

During the post-revolutionary era of constitution making, the state of Virginia, too,  issued a Declaration of Rights. Article 15 reads "that no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugalisty, and virtue, and by a frequent recurrence to fundamental principles."

It is that recurrence to fundamental principles that energizes the Tea Party movment.

(And the revival on interest in the Tenth Amendment has spread to political candidates not usually identified as "tea party favorites.. See more on the Tenth Amendment at here. )

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