Authors Note: Sorry for the length but there was a lot of history and detail to cover.
On June 7, 1776 Richard Henry Lee stood before the Continental Congress and presented a set of resolutions, the first of which began with the following words, “Resolved, That these United Colonies are, and of right ought to be, free and independent States…” Almost a month later, this same Continental Congress would vote upon a declaration which stated, “We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States…”
Lee’s initial resolution was the impetus for what we know as our Declaration of Independence. Notice that both Lee, and Jefferson, who wrote the majority of the Declaration of Independence, both declared that the colonies ought to be free and independent States. Each state was to be a sovereign entity, capable of establishing its own system of government which best suited the needs and desires of the inhabitants therein.
When delegates gathered together once again in 1787 to discuss amending the Articles of Confederation they did so on behalf of the state legislatures which selected them to represent the best interests of the individual States.
Unless you have taken the time to study the proceedings of the esteemed body that gathered together over the summer of 1787 then you probably do not know that it was, at times, a very heated discussion with much of the discussion centering around how the new government being formed would affect the States, most importantly, the smaller less populous ones.
One of the first proposals to the convention was presented by James Madison and is known as the Virginia Resolution. It would form a strong central government with 3 branches, with 2 houses of Congress, a Senate and a House of Representatives. However, as presented it gave the larger, more populous states a distinct advantage in Congress and was opposed by the smaller states.
The New Jersey plan, was then next presented by William Patterson and it had a unicameral Congress, (only one house to enact laws) and each state had only 1 vote in the Congress. This was opposed by the larger states as it did not equitably represent them due to population.
There were other plans which dealt with such issues as how to count slaves when considering representation and the manner of choosing/electing the president. However, the main sticking point came with fair and equitable representation in Congress for the States.
As in most political discussions, a compromise was reached which created one body, the House of Representatives, which representation would be based upon population of the States, with another body, the Senate, wherein the States would elect two people to represent their will. For laws to be passed they would have to pass both bodies before being sent on for the presidents consideration.
The final document they presented for a vote is what we now know as our Constitution. Again, few know that although there were 55 delegates in attendance at various times over the course of the Convention, only 39 names appear on the final document. Many had left the proceedings prior to the vote and signing, however there are 3 names; Elbridge Gerry of Massachusetts, and Edmund Randolph and George Mason of Virginia, who refused to sign the document because they were not happy with the final outcome.
Colonel Mason penned a letter stating his reasons why he refused to sign the proposed Constitution, and at the top of the list amongst his reasons he stated, “There is no declaration of rights: and the laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights, in the separate states, are no security. Nor are the people secured even in the enjoyment of the benefit of the common law, which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several states.” Chief among his reasons for refusing to sign the document was a lack of security for the rights and sovereignty of the States.
Although the Constitution had been voted upon, and passed by a majority of the delegates in attendance at the Convention, it still had to be ratified by a majority of the state legislatures in order for it to go into effect. That, in and of itself, would pose a daunting task for those who had worked so hard, and now supported the document that was the result of all their labors.
As stated, George Mason refused to sign the document, but there were other notable names who are decidedly absent on it. Take for instance Patrick Henry, the patriot whose stirring speech declaring ‘…give me Liberty or give me Death’ refused to attend the convention because he ‘smelled a rat.’ These men, among others, would use their talent as orators, and their standing, to oppose the ratification of this Constitution; they were to become known as the anti-Federalists. Those who supported the document, and fought for its ratification became known simply as the Federalists. In a sense they became the first political parties, as their stance on the purpose, power given to the federal government, and that reserved to the states and the people, can trace its growth throughout our history all the way to the modern day Tenth Amendment movement, but more on that later.
A chief distinction between the Federalists and the anti-Federalists was the economic standing of those who favored, or opposed the proposed Constitution. For the most part the Federalists were well educated and well to do; merchants, large farmers, and artisans. On the other hand the anti-Federalists aside from Gerry, Mason, and Randolph, were mostly rural farmers who felt that a strong central government was a threat to their rights, and to the powers of the states whose job they felt to was to do what was in the best interest of the people who lived therein.
In the end, the Federalists won and the constitution was ratified. But it wasn’t without a struggle, and the promise of some sort of a declaration of rights that many States agreed to ratification. Over the course of the ratification process both sides employed writers of great oratory skill to espouse their reasons for either supporting, or opposing the proposed Constitution. Among the better known Federalists whose works explained this new system of government were Alexander Hamilton, James Madison, and John Jay, whose combined works we now know as the Federalist Papers.
As States rights were a big concern for those who opposed the Constitution, it was important that the Federalist writers that they convince the people that the new Constitution did not infringe upon the rights of the states.
In Federalist 32 Alexander Hamilton wrote, “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”
Then in Federalist 45 James Madison further emphasized, “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 former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. 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.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.”
As I said, the Federalists won the day and the Constitution was ratified―with the promise that a declaration of rights be added as soon as the new government became active. The promise was kept, and as the preamble to the Bill of Rights states, “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
It is the very last of these proposed rights that I wish to include in my discussion, the one which we know as the Tenth Amendment. It 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.”
It is imperative that you understand just what the Tenth Amendment means. It begins with the words “The powers not delegated to the United States by the Constitution…” To begin with it declares that the powers granted this new entity, the United States, have been delegated. Therefore it was by the ratification of the State legislatures that the United States came into being, and it was by their power and authority that these powers were ‘delegated’, or granted this new body. It also states that the powers NOT delegated, this must mean that somewhere within the Constitution there is a specific list of powers that ARE delegated to this new entity, the United States. Otherwise how are we to determine which powers ARE NOT delegated?
The Tenth Amendment goes on to say “…nor prohibited by it to the States…” All this means is that the Tenth Amendment is only referring to powers that are not expressly granted the federal government via the Constitution, AND those powers which that same document expressly grants the States. The Tenth Amendment concludes by saying, “…are reserved to the States respectively, or to the people.”
So, in effect, the Tenth Amendment could be written to say, “Any proposed powers which are not specifically listed by the Constitution as being powers of the federal government, or granted specifically by said document to the States, are to be amongst the powers granted the individual States, or reserved to the people.”
As Madison said in Federalist 45, the powers granted the federal government were to be primarily exercised in regards to war, peace, commerce, and negotiations with foreign nations. EVERYTHING else was to be a power reserved to the States.
In his Commentaries on the Constitution, a discussion of the Constitution from a legal standpoint, Supreme Court Justice Joseph Story said the following about the Tenth Amendment, “This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained by the people, as a part of their residuary sovereignty.”
To better understand how our system of government was supposed to work in relation to the states, allow me to present a simple analogy. Imagine a group of families settle in a previously uninhabited region. Each family stakes out 10 acres of land as their property for farming and whatever use they deem necessary for their survival. As individual families they must rely upon themselves to provide for their defense against any who might trespass and threaten their livelihood.
After a time if these settlers begin to establish trade with each other and setter A begins charging a fee for his neighbors to transport their goods across his property to sell to settlers on the other side. This causes the settlers to either abandon trade or, in an effort to offset the cost of the penalty, raise the price for which he sells his goods.
Soon chaos and anarchy reign and the settlers agree that something must be done. So they gather together and come up with a compact which declares that a body shall be established, consisting of members selected by the entire settlement, to settle disputes, provide for the common defense of the settlement, and to regulate trade so that if flows smoothly within the settlement.
That is the entire purpose for which this ‘governing’ body was established. These ‘governors’ could not enter a person’s private property and tell them what to do. They were merely there to keep the peace between each settler, to provide for a common defense, and should the need arise, negotiate treaties and other such arrangements with any neighboring settlements.
That is our system in miniscule. Each settler was sovereign over his land as our each state in our Union. The governing body was to settle disputes, provide for the common defense, regulate trade, and negotiate with other settlements. So was our government. But our government has intruded into the states and now usurps powers and authority over the states that it was NEVER intended it possess.
In my little analogy, what would have happened had a majority of settlers banded together and demanded that their governing body enact rules which imposed undue hardship on the minority? What recourse could they possibly have when their rights and sovereignty were being attacked by a larger, more powerful majority? They would have but two options; either they could withdraw from this union of settlers, or they could stand up and fight to regain what was rightfully theirs.
Such has been the nature of our federal government, and its relationship to the states since nearly the beginning of our nation’s existence. The federal government has sought to expand its power and exert control over the states which was clearly an abuse of power and an encroachment upon the rights of the states, and the citizens thereof.
Under the administration of our second president, John Adams, laws were enacted which many felt overstepped the power of the federal government and encroached upon the rights of the states and the people. The Alien and Sedition Acts forced a sitting Vice-President, Thomas Jefferson, to take a stand against the acting President.
In 1798 Thomas Jefferson wrote the Kentucky Resolutions wherein he said, “1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Yet power is something that, once obtained, is difficult to restrain. Abraham Lincoln once said that “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” It’s funny that it was Lincoln who said that, because the next serious threat to state sovereignty came about while he was president.
After our nation’s birth the states went on awhile in semi-peaceful status. However, the northern states began to be more industrialized, while the southern states stayed mostly agricultural. As our system of government had no direct tax upon the people, an income tax, they relied solely upon tariffs on goods coming into this country to fund its operation. As the North did more exporting than importing these tariffs benefitted the northern states. The South, on the other hand, relied heavily upon imported goods and these tariffs raised the prices of the things they depended upon.
In 1833 a Senator from the State of South Carolina, John C. Calhoun, argued before the U.S. Senate on the process of State nullification of federal laws which encroached upon the rights of the states. The South Carolina assembly had passed a resolution which declared tariffs imposed by the federal government upon goods entering South Carolina null and void. To defend his state’s rights before the Senate, John Calhoun resigned from the office of Vice-President so that he could more effectively represent his state in the Senate.
In his argument, Senator Calhoun stated, “The very point at issue between the two parties there is, whether nullification is a peaceful and an efficient remedy against an unconstitutional act of the general government, and may be asserted, as such, through the State tribunals. Both parties agree that the acts against which it is directed are unconstitutional and oppressive. The controversy is only as to the means by which our citizens may be protected against the acknowledged encroachments on their rights.”
The crisis rose to a head when the federal government authorized the use of military force to enforce the tariffs. South Carolina backed down when a new, lower tariff was announced and the crisis was resolved and things were back to normal for a while. Although I cannot personally presume to know what thoughts went through the minds of those who occupied seats with the South Carolina State legislature, I can imagine that there must have been some stinging resentment towards the actions of the federal government towards them.
Therefore, just 30 short years later the issue of States Rights came to a head and South Carolina could no longer tolerate what it perceived to be encroachments upon its rights, and it declared that it had withdrawn from the Union. In its Declaration of Secession, South Carolina stated, “The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.
And now the State of South Carolina having resumed her separate and equal place among nations, deems it due to herself, to the remaining United States of America, and to the nations of the world, that she should declare the immediate causes which have led to this act.”
Is it just me or do the sentiments expressed by South Carolina in its Declaration of Secession sound familiar? I seem to recall that all thirteen of the original colonies agreed to a certain declaration which said, “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
Our Declaration of Independence was a declaration of secession by all thirteen colonies from their commonly accepted sovereign, England. Although they considered it their right, England on the other hand felt it was an act of treason, or to be more specific, an act of war. Such was the case when South Carolina seceded. They felt it was within their right, but the federal government, not the northern states so much, but the FEDERAL GOVERNMENT declared it to be open rebellion.
Whatever your beliefs as to the Civil War, its origins and its outcome, you must consider something I asked earlier in my little analogy about the settlers. What recourse do states, or the people, have when a governing body oversteps their legal authority and enacts laws which are detrimental to the people they represent?
Our Declaration of Independence states “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to 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.”
Is that right to alter or abolish a right which must be a commonly held belief by all parties, or can an individual state decide that their continued adherence to the union would only be detrimental to the people of that state, and that they therefore have the right to withdraw from that Union? Again, it doesn’t matter if you agree with their reasons or not, you must ask yourself is it within a states right to do so when it feels that the federal government has become destructive of the ends for which it was established. And, more importantly, if you don’t believe it is within a states right to secede, then what peaceful recourse does a state have when it feels that its rights are being encroached/infringed upon?
In Federalist 28, Alexander Hamilton stated that “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.” What is this original right of self-defense of which he spoke if it is not to either withdraw from the Union or to take up arms against it?
In Abraham Lincolns first inaugural address he put to rest where he stood on the issue of secession, “It follows from these views that no State, upon its own mere motion, can lawfully get out of the Union, — that resolves and ordinances to that effect are legally void, and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.” He would consider it an act of rebellion, just as did King George when the 13 colonies seceded from England.
Yet, Lincoln seems to contradict himself because towards the end of his address he states, “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it.”
In either case it seemed that Lincoln left no middle ground. You would either remain in the Union, or you would start a revolution and attempt to dismember it. Instead of allowing for a peaceful withdrawal by those states who felt that remaining in the Union would be detrimental to their residents he drew a line in the sand―either stay in the Union, or face the threat of war when we try to force you into compliance.
I need not go into the actual war itself as we all know how it turned out. The South lost and along with it died the belief that the states had the right to peacefully withdraw from the Union when they felt it was incompatible, or detrimental, to their sovereignty.
Yet there still remained one obstacle for the federal government in its quest to obtain complete control over the states, that being the fact that United States Senators were chosen by the States themselves. Therefore any law which the federal government wanted to see enacted had to make it through a body of representatives who still, supposedly, were loyal to the states they represented. Hence the passage of the 17th Amendment which altered the structure of our government by removing any say the states had in the enactment of law by having the people, instead of the states legislatures, chose their Senators. With the ratification of the 17th Amendment the states were now at the will of the federal government as they had absolutely no means of fighting the growth of the federal Leviathan.
Now look at the states, they are mere shadows of their former glory. They are filled with assemblies and legislatures that are beholden to the federal teat for subsidies and funding for internal improvements. If they speak out against federal law which encroaches upon their sovereignty the beast that is the federal government simply threatens to cut off vital funding and the states comply.
Yet there is an awakening, of sorts, going on and although it may not be a light at the end of the tunnel, it does give hope that some people still understand how things were supposed to function in our Republic. I suppose that only the future can guess what lies ahead for us as people. Whether we will continue down the pathway to further encroachments of our rights, or will we say enough is enough and stand up and tell the beast that is Washington D.C. no more.
And maybe that is why I was born, why I was chosen to live during these troubling times; maybe it is my purpose in life to chronicle this journey we are taking, and to record for all those who will listen the clarion song of freedom and liberty. Who knows. All I do know is that the things I write are rooted in fact and that, for the most part, the arguments I get from people who oppose my views are not.
In closing I would like to leave you with a quote by Samuel Adams, which I find to be quite appropriate. Adams once said, ” The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men.”
I suppose then the only question which remains to be asked is which side will history will record you as having taken, the side which meekly surrendered to an oppressive tyrant, or the one who stood up for liberty.