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.
As unusual, the government only pulls out quotes by the Supreme Court and Federalist Papers that they like. For example, they love decisions such as that given by Roosevelt aide, Justice Harlan Stone in the 1941 decision of United States v. Darby Lumber Co., 312 U.S. 100
“Our conclusion is unaffected by the Tenth Amendment which provides: ‘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’. The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”
In 1824, Justice John Marshall in Gibbons v. Ogden explained in excruciating detail what the Interstate Commerce Clause, for example, meant. And what the Tenth Amendment meant.
“This principle, which distinguishes the national from the State governments, is derived from the nature of the constitution itself, as being a delegation of power, and not a restriction of power previously possessed; and from the express stipulation in the 10th amendment, 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.’ The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature.”
He went on to explain that the States did not give up any powers except those which the federal government needed to prevent jealousies and petty rivalries.
His honor, Justice Stone, must have been absent when his law school studied Hamilton’s Federalist 17 in which he writes,
“It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influence which the State governments if they administer their affairs with uprightness and prudence, will generally possess over the people…
“…Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.”
Justice Marshall pointed out in Paragraph 138 of his decision that Judge Tucker erred in the latest edition of Blackstone that commerce is not a concurrent power held by the federal and State Government.
“And he repeats the doctrine, on the very untenable ground, that the regulation of commerce is not susceptible of a concurrent exercise: a doctrine which a review of State laws will show to be contrary to fact and experience. The opposite doctrine is strongly supported by Kent, Ch. J. in Livingston v. Van Ingen, as the only safe and practicable rule of conduct, and the true constitutional rule, arising from the federal system. And it is the only safe and practicable rule; it is one which the extent of our territory would indicate, even if the government were despotic…There must be, even in respect to foreign commerce, local interests and details, which cannot well be presented to the view of Congress, and can be, at least, better provided for by the State Legislatures, emanating from the very people to whom they relate. This must have been perceived by the framers of the constitution, and they must have felt the difficulty of designating the limits of what ought to be permitted to State authority. They did not, therefore, attempt the limitation, except in some plain cases, which they marked by restrictions and prohibitions; but they guarded against any practical abuse of the permission, by securing to Congress the paramount and controlling power over the whole matter. This view of the subject is exceedingly strengthened, when we contemplate the probable future increase and extent of this confederacy. The thirteen original States were a band of brothers, who suffered, fought, bled, and triumphed together; they might, perhaps, have safely confided each his separate interest to the general will; but if ever the day should come, when representatives from beyond the Rocky Mountains shall sit in this capitol; if ever a numerous and inland delegation shall wield the exclusive power of making regulations for our foreign commerce, without community of interest or knowledge of our local circumstances, the Union will not stand; it cannot stand; it cannot be the ordinance of God or nature, that it should stand.”
As you read the lengthy decision—which might take three or four reads to fully comprehend—you find that he points out that the States are in full capacity to regulate what comes into and is exported from those States. From the above quote I derive that even includes what comes from other countries. I do not have the space in the scope of this article to explain, but if you read the decision aside the Constitution and Federalist papers cited, you get a sense that the powers of the federal government extend ONLY to those ENUMERATED duties outlined in the Constitution of the United States. The power to regulate trade was limited to the powers concerning trade and commerce in the Constitution. In other words, the federal government only had a standing to regulate the method of transportation and duties so that one State could not tax another unequally and cause retaliatory duties. The States had full control to import and export what they wished among the several States.
I do not ask you to believe me. Simply look at the decisions yourself.
Let us examine a few of the founding father’s words through the Federalist Papers.
We heard from Hamilton. Now James Madison, the father of the Constitution, writes in Federalist 45,
“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.”
He repeats a theme from an earlier Federalist Paper No. 5
“A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former.”
The first Chief Justice of the United States Supreme Court, John Jay, wrote in Federalist 5
“Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations,” he writes. “Hence it might and probably would happen that the foreign nation with whom the southern confederacy might be at war would be the one with whom the northern confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith.”
Thus the federal government was essentially to prevent one State from trading with a foreign nation hostile to another State. His example can be construed as almost prophetic in nature, don’t you think? Since we allowed both sides of our Civil War to be financed by England’s bankers. This tradition continued after Lincoln’s death because of his distrust of the “national bank.”
In Federalist 17 we read,
“Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.”
Another interesting hint in how the founding fathers felt about the powers granted to the States is a simple matter of grammar. They chose to use a capitol letter when referring to “State” while reserving lower case for “national” or “federal” government.
For your “safety” and “security,” I should point out that these men are probably on the “no-fly” list
An examination of the very words of this Amendment might be in order.
The powers not delegated to the United States by the Constitution,
Those enumerated in Article I., Section 8 and Section 9 in particular.
nor prohibited by it to the States,
Generally found in Section 9 of the first article
are reserved to the States respectively,
Yes we can!
or to the people.
This raises some interesting questions. Since Congress gave up its DUTY to coin money and regulate the value thereof, does that not mean that it is no longer an enumerated power? Therefore the States, or the people, should be able to run their own State banks with their own currency.
Since they have not fulfilled their duty to protect the borders, the States have the RIGHT to do so.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.—Article IV., Section. 4.
No State shall, without the Consent of Congress…or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.—Article I., Section 10, Clause 3
It is very clear that States’ rights were critical to the success of the Republic for which we are (we are NOT a demonocracy!)
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