Giving Teeth to the 10th Amendment16 min read
June 1, 2018 May 31, 2018 by Sam Parker
How the Framers Originally Empowered the People and States to Keep the Federal Government in Check
This is Part 1 of a multi-part series.
When our founders met in Philadelphia in 1787 to frame a new constitution, they were faced with a problem neatly expressed by James Madison in Federalist 51:
"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
The 10th amendment to the Constitution is actually the key to understanding their solution to this problem. But in order to understand how the 10th amendment is the key, we must review a few details.
It's important to note that the founders delegated some rights, powers, and privileges to the national government, and left others with the state governments and/or the people. American citizens were thus to be governed by dual republics—that of the federal government and those of the states. By splitting power between those 2 respective bodies, the peoples' rights were afforded multiple layers of republican protection. Furthermore, the state governments were to counterbalance federal power and stand between the federal government and the people—who are the source of all rights, powers and privileges in the first place. This structure is alluded to, and encapsulated by, the 10th Amendment: "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."
However, our founders were savvy enough to recognize that merely making statements and edicts would be insufficient on their own to protect the rights of the people, so they conceived a government of 3 branches—executive, legislative, and judicial—split or distribute power between them in critical ways. Today, we know these splits and distributions as "separations of power," and "checks and balances." For example, the executive branch could appoint judges, but the Senate had to confirm them, and then those same judges could preside over impeachment trials of the Executive. Another example is that the legislative branch was to make the laws, the executive was to sign and enforce the laws, and the judiciary would interpret the laws.
Interestingly, the separations of power and checks and balances that most people are familiar with are internal controls only. That is, they are found within the 3 branches of the federal government. But we must remember that we were meant to be governed by dual republics. The people and states were to have their own powers and checks and balances on the federal government. These were referred to as external controls.
These internal and external controls baked into our government made it less efficient than other forms of government, but our founders were not concerned with making an efficient government as much as they were concerned with making one that would 1) protect the rights of the people and 2) prevent tyranny from arising. With these views in mind, we can now fully appreciate James Madison's solution to the problem he expressed in Federalist 51:
"Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."
Unfortunately, most people are largely unaware of these external controls anymore. Perform an internet search of "checks and balances," or "separation of powers," and you'll be hard pressed to find a result referring to or detailing the controls external to the federal government (probably because they are mostly gone or severely eroded. "Out of sight, out of mind," as they say). Therefore, the purpose of this article will be to enumerate and explain the structural and formal checks and balances that the people and states themselves were supposed to have on the federal government. These controls were meant to protect the rights of the people and prevent a runaway federal government. Or, in other words, this article will demonstrate how our founders "gave teeth" to the 10th Amendment.
Solutions: External Check and Balance Mechanisms on Federal Power
There were 6 principle mechanisms whereby the people and the states had power and/or influence to keep the federal government in check. In no particular order, they were:
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1. The state legislatures were to appoint their Senators
By giving the state legislatures direct influence over one-half of the national legislature, states could advance their interests through particular legislation, or stop legislation that was counter to their interests. In this way, the states had a seat at the federal government table that they had themselves created. They had a measure of control over who would be appointed to the federal bench and how federal monies would be spent. The states could even help decide the kinds of international treaties entered into, etc. Senators had to be careful how they voted and governed, or they could be voted out by their legislatures. If a power was rightly reserved to the states—or to the people the states represented—the states had direct recourse to prevent federal abuses. They could even influence whether the President was removed from office. It was as if the states themselves had a direct hand holding some of the levers of power in Washington.
2. The federal government taxed the states for revenue based upon their respective populations
Article 1 section 9 directed that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." A "capitation tax" is a head tax, or a tax levied directly on individuals.
"Because of this prohibition, the taxes originally levied by the federal government were collected from the state governments (based upon their respective populations), and NOT from the citizens directly."
In other words, the states were the agents of the citizens and acted as intermediaries between their residents and the federal government. As Daniel Webster noted, "An unlimited power to tax involves, necessarily, a power to destroy." Hence, the federal government was restricted in its ability to directly abuse and destroy its citizens, their rights, and their property.
3. The executive (president) was to be chosen by electors
Anyone who lives in a state where the caucus system is still employed will quickly understand how the elector system was supposed to work. According to both Alexander Hamilton and James Madison, each congressional district was to vote for an elector—a person to represent the mass of voters. Article 2 section 1 of the Constitution laid out the qualifications and restrictions for an elector, "…no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." They were to be independent of the federal government so that there would be no conflict of interest or easily constructed conspiracy of insiders. Hamilton, in Federalist 68 explained, "Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption…They (the Constitution's framers) have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes."
Once chosen, the electors would continue vetting the candidates and then, at the appointed time and place, vote for the President and Vice President. The idea was to empower those with higher capacities of knowledge, wisdom, understanding and ability to do the "heavy lifting" of research and selection of the president so that it wouldn't devolve into rule by the mob—or, as we'd say today—the "low information voter." Again, Hamilton in Federalist 68 clarified, "It was equally desirable, that the immediate election (of the president) should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations."
The "electoral college" system was a mechanism that was supposed to be controlled by the state legislatures and filtered through legislative districts. In a letter to George Hay in 1823, James Madison explained, "The district mode (of voting for electors in each district) was mostly, if not exclusively, in view when the Constitution was framed & adopted."
In other words, the presidential election was supposed to be a massive, nation-wide caucus meeting. And by providing a mechanism of electors to vet the candidates, the rights of the people were to be better protected and their powers could be more focused in choosing the chief executive.
4. The people were to have representation of at least 1 representative per 30,000 people
This check on federal power is a little difficult to see at first. One might ask, "If the representatives chosen by the people are part of the federal government, then how is it that the representatives can be checks on federal power?" That is a fair question. The key is to focus on the number or proportion of representatives—not the representatives themselves. Too few representatives, and the House becomes a quasi-oligarchy rather than an assembly of the people, as it's meant to be. At the Constitutional Convention, the delegates originally adopted 1 in 40,000 after much debate. However, on the last day of the convention, George Washington, the elected president of the convention, arose and spoke up for the only time on record at the convention and gave his support for 30,000. Madison recounted, "No opposition was made to the proposition…and it was agreed to unanimously."
Federalist 52 explains, "…it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration (the House of Representatives) should have an immediate dependence on, and an intimate sympathy with, the people." Too large a proportion—or, too few representatives—would mean that they wouldn't have an "immediate dependence" on, or an "intimate sympathy" with, the people they represent. Federalist 55 laid out the reasons for their particular ratio even more explicitly (italics added for clarification):
"first, that so small a number of representatives will be an unsafe depository of the public interests (power would be too concentrated if the ratio were too small and it would be too easy for corruption to arise); secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents (if the ratio were too small they wouldn't be close enough to those they represent and hence not be able to provide adequate representation); thirdly, that they will be taken from that class of citizens (what we'd call the "1%," "elite insiders," "power brokers," or "oligarch opportunists") which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many (become beholden to insiders and/or special interests at the expense of the majority); fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives (in other words, having too high a proportion is also a problem, especially as the population grows)."
If the people are adequately represented they are empowered with the recourse and ability to practically and more fully impress their will upon the federal government. Again, Madison's letter to Hay is instructive, "The agency of the H. of Reps. was thought safer also than that of the Senate, on account of the greater number of its members…the Representations of most of the States being numerous, the House would present greater obstacles to corruption, than the Senate with its paucity of Members."
The particular ratio of representation was critical and had to hit a certain "sweet spot." Madison summed it up this way in Federalist 55, "The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude." And the "certain number" the founders settled on was 1 in 30,000.
5. The states could petition congress to call a convention of states for proposing amendments to the Constitution
The founders realized that the Constitution wasn't perfect, and that changing circumstances may require modification of the document (and thus the foundations and rules of the government). They created a remedy for such situations by devising a process whereby congress could propose amendments for the states to consider and ratify if they so chose. Near the end of the convention, it was realized that congress might fail to act, or even refuse to act in this manner when required or desired, so the delegates created a second method for amending the Constitution that would circumvent the need for congressional initiation. This method incorporated a mechanism which the delegates were extremely familiar with: a convention of states. The sovereign states themselves could gather and propose amendments that would then be submitted to the ratification process.
Here are the precise words of the text of Article V of the Constitution:
"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof…"
In Federalist 85, Hamilton explained how it is that Article V empowered states:
"…the national rulers…will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged "on the application of the legislatures of two thirds of the States (which at present amount to nine), to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof." The words of this article are peremptory. The Congress "shall call a convention." Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority."
Article V is a full-fledged mechanism for the sovereign states to themselves challenge and counterbalance federal authority.
6. The right of the people to keep and bear arms was not infringed
Even though this right and power is not expressly a Constitutional mechanism or government framework per se, a generally-armed populace is a powerful check on government tyranny and therefore merits inclusion in this list. It was the armed colonists, fighting first with their own weapons, that had just won their independence from a tyrannical government. One need only review the blood-bathed history of the 20th century to understand how disarmed peoples fare when their governments turn against them. The Bolsheviks, the Nazis, the Khmer Rouge, the Communist Chinese, etc., all committed massive atrocities on scales unheard of in human history. Perhaps over 100 million people were exterminated by their own governments after their arms were taken away. That is a powerful lesson that had already been learned by our founders. Indeed, many have said it's the 2nd amendment rights that protect "all the others."
However, since the use of arms is violent with a certain sense of finality, it is unsuited to correcting "civilized" abuses of power for which there are more peaceful recourses and remedies. While the phrase "nuclear option" has gained traction in modern vernacular referring to dissolving the filibuster in the Senate, it is actually more descriptive of the people of the United States using arms to put a stop to government tyranny. With a few notable exceptions (the Civil War being the most obvious), 2nd Amendment rights tend to be the proverbial "ounce of prevention," because the "pound of cure" tends to come with the also-proverbial "pound of flesh." Even so, it is a valid power, even if it is the power of last resort. As Thomas Jefferson observed, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."
The founders were concerned with protecting our natural, unalienable rights. They knew that a government would be necessary to do that and sought the best form of government that could prevent the rise of tyranny and abuse of those rights, yet still be strong enough to carry out its duties. However, as Madison observed, "If men were angels, no government would be necessary." The point being that men aren't angels, and the founders knew the branches of government would not follow the law simply because it was written down on a piece of paper; that was contrary to human nature. Instead, the federal government would follow the Constitution because it would be compelled to do so by competing forces of power—the states and the people—empowered by special mechanisms and distributions of rights, powers and privileges.
Madison elegantly explained how the founders accomplished this (italics added by author), "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments (the state and the national), and then the portion allotted to each subdivided among distinct and separate departments (separation of powers). Hence a double security arises to the rights of the people. The different governments will control each other (external controls), at the same time that each will be controlled by itself (internal controls)."
That is why they could, with confidence and straight faces, subsequently assert that "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."
Part 2 of this series will investigate what has become of these powers and mechanisms that enabled the states and people to enforce the 10th Amendment, protect our rights, and prevent the federal government from going beyond its Constitutionally authorized scope.
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