The amendment states but a truism that all is retained which has not been surrendered. ~ reference to the tenth amendment in United States v Darby (1941)
For the first part of this year, I’ll be writing articles addressing emails I received from readers in 2018.
With much focus on our southern border of late, I’ll start by answering a question I received about so-called “sanctuary cities.” Before I respond, however, I want to spend today talking about the Bill of Rights and its final, Tenth Amendment as it is relevant to my argument.
It’s worthwhile to note that, despite what many think, America’s Bill of Rights was not a product of the 1787 Constitutional Convention that ultimately brought us our Constitution. In fact, at the time, many believed a bill of rights to be unnecessary (and potentially dangerous). For that reason, it’s fair to speculate a bill of rights would have served as an impediment to the creation and subsequent ratification of the Constitution. As noted by the (nonpartisan) National Constitution Center:
The consistent line of the Constitution’s defenders was that no bill of rights was necessary because the limited and enumerated powers of the national government simply did not include the power to violate those rights. (source)
In other words, although a bill of rights might be necessary for a national government with unlimited powers, it didn’t make much sense for a national government granted limited powers by a Constitution.
The problem was that, as also noted by the National Constitution Center, “not everyone was convinced by these arguments” and, as such:
A number of states ratified the Constitution only on the express understanding that the document would quickly be amended to include a bill of rights. (source)
And so it was that four years later, in 1791, ten of the 12 amendments proposed by America’s first Congress were ratified as America’s Bill of Rights. However, to placate those concerned with government overreach and emphasize that the inclusion of a bill of rights wouldn’t change the fundamental character of the government, the framers ended with the tenth 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.
Reflecting on the words above, the Tenth Amendment can be viewed as a concise statement of Federalism; that is, there will be a central government of limited and enumerated powers and states with general powers within their borders. Or, as noted in the quote that
What does all of this have to do with sanctuary cities? More on that next week but to hold you over I’m going to leave you a song by Lean Year titled “Tenth Amendment.”
The song is featured in an album (The Most Perfect Album) that was put together as part of Radiolab’s excellent podcast about the Supreme Court, More Perfect. The album features artists offering their interpretations of the 27 amendments through their original songs. I didn’t know about the band Lean Year until I heard the podcast and really dug the song. I think the following lines do a succinct job of summarizing part of the essential tension that holds our wonderful experiment together:
Will your we put an end to me?
Will your me put an end to we?
Until next week.
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