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Life, Liberty & the Pursuit of Happiness

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http://www.shestokas.com/constitution-educational-series/the-tenth-amendment-to-the-us-constitution/

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"The Tenth Amendment is the foundation of the Constitution."
- Thomas Jefferson

Among the questions raised by opponents of the Constitution during the ratification debates was the lack of an express limit on federal power, and that it would be a danger to individual freedoms and to the powers of the states.

In response to this concern the Constitution's proponents[1] argued that the central government could exercise only the powers named in Article I.[2] This was argument developed from agency law, something the drafters at the Constitutional Convention were very familiar with. In various debates, writings and publications, the Federalists assured the states would retain power over most domestic issues, including, but not limited to:

governance of religion

training the militia and appointing militia officers

control over local government

most crimes and state justice systems

family affairs

real property titles and conveyances

wills and inheritance

the promotion of useful arts in ways other than granting patents and copyrights

control of personal property outside of commerce

the law of torts and contracts, except in suits between citizens of different states

education

services for the poor and unfortunate

licensing of taverns

roads other than post roads

ferries and bridges

regulation of fisheries, farms, and other business enterprises

Neither the arguments, nor the listings were satisfactory to the Anti-Federalists. As argued by Patrick Henry:
"If we trust our dearest rights to implication, we shall be in a very unhappy situation."
The Federalists promised to address these concerns with amendments if the Constitution were ratified.

The Tenth Amendment

Not wishing to rely upon the implications of Agency principles alone, many state conventions included recommendations for a Bill of Rights along with their ratification resolutions. The new government went in effect in 1789, and the concerns of the Anti-Federalists remained alive.

Shortly after the First Congress convened, New York and Virginia filed applications for an Article V[3] Convention on Amendments. The Federalists were in control of Congress, and led by James Madison, to keep their promises and to avoid an Article V convention, proposed twelve amendments. The Tenth Amendment reads:
"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 Tenth Amendment had been the twelfth offered, but the first two weren't ratified.[4] The Tenth Amendment in reality codified the agency principles that had been relied upon by the Federalists in their arguments for ratification.

The Tenth Amendment has become a rule of construction[5] directing the courts how to interpret the Constitution. It essentially tells the courts to follow the law of agency, that a principal, in this case the PEOPLE, (and their alternate agent, the States) retain authority over all subject matter not outlined in the agency agreement (the Constitution).

The Purpose of the Tenth Amendment

This amendment was to answer concerns that the Constitution's central government would not usurp powers intended to remain with the States and the people. The key principle of the Constitution was originally quite simple: positive grant of enumerated powers.

The people appointed the federal government their agent for certain purposes and their own states for other purposes. The Tenth Amendment explains that the federal government is authorized to exercise only those powers which are specifically given to it. It makes clear the principles of federalism underlying the Constitution.

The Tenth Amendment and McCulloch v. Maryland

In 1819 Supreme Court Chief Justice John Marshall in McCulloch v. Maryland turned aside the concept that the Tenth Amendment limited the central government to specific constitutionally granted powers. Marshall ruled the Constitution granted not only the enumerated powers, but an extensive collection of implied powers.
"Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated." (emphasis added)
Marshall emphasized a word missing from the Tenth Amendment. The Articles of Confederation[6] had limited the central government as follows:

Marshall ruled that since the Tenth Amendment differed from Articles of Confederation provision by omitting the term "expressly" the Amendment's intent was to give Congress an array of implied as well as explicitly delegated powers. Since the central government's power was not "expressly" limited, its power could expand well beyond the specific constitutional grants of authority.

The Necessary and Proper Clause

To allow government authority to be exercised in areas well beyond limited constitutional grants, Marshall relied upon the Necessary and Proper clause:

" The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof."

In determining the Tenth Amendment contained no express limitation provision and that the Congress had the authority to make "necessary and proper" laws to execute the enumerated powers Marshall's ruling was contrary to the Federalist ratification arguments.

The Tenth Amendment in the 21st Century

Marshall set the stage for Tenth Amendment atrophy. That is what happened over the centuries. The listing of subjects reserved to the states promised by the Federalists has been subject to intrusive, and in some instances exclusive, federal control. The fears of the Anti-Federalists have come to fruition. The Supreme Court has given the Tenth Amendment some life in recent years with rulings limiting the federal government from commandeering state government to execute federal policy, but those victories for local government are few.

The states cannot rely upon the federal courts to truly act as a limit on federal power.[7] The states can only protect their constitutional prerogative through their own actions. There are state exertions of 10 th Amendment powers of late with state actions on the subjects of both marijuana and the Second Amendment right to bear arms. In some states 10 th Amendment arguments are put forward in opposition to Common Core. The 10 th Amendment's vitality depends not on court decisions, but on strong state leaders acting in the local interests of their citizens.

For an example of the 10th Amendment at work in a positive fashion, consider the nation's most respected profession, nursing.

[1] The Federalists

[2]Article II's section 8, primarily defines the subjects upon which Congress can pass laws. The Federalists argued the legal maxim of designatio unis: The designation of one is the exclusion of the other. The idea being that by naming specific powers, any unnamed authority was withheld from the federal government.

Specific powers of the President and Supreme Court are found in Articles II and III respectively, with the same argument applied.

[3]The Constitution provides two methods to propose amendments. See Article V for a full explanation. There are multiple contemporary efforts to call an Article V convention.

[4]The second amendment proposed was ratified 202 years later, becoming the 27th Amendment.

[5] A "Rule of Construction" is a legal concept developed over time that tells a court how to read a document or a law. The principles behind these rules are generally to arrive at the intent of the people who created the document or passed the law.

[6] This was the "operating agreement" between the States from 1776 to 1789 when the Constitution went into effect.

[7]As a practical matter, federal courts are 1/3 of the federal government. When the 17th Amendment provided direct election of the Senate, rather than appointment by state legislatures, the voice of the states in the Congress was silenced.

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The Tenth Amendment to the US Constitution - David J. Shestokas

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"The Tenth Amendment is the foundation of the Constitution." - Thomas Jefferson Among the questions raised by opponents of the Constitution during the ratification debates was the lack of an express limit on federal power, and that it would be a danger to individual freedoms and to the powers of the states.

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the first amendment | Bill of rights, Amendments project, Amendments

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Aug 19, 2017 - Editorial cartoons and illustrations by Dave Granlund. Updated frequently.

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http://www.shestokas.com/constitution-educational-series/constitutions-ninth-amendment-protecting-unenumerated-rights/

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On September 17, 1787 the drafting of the American Constitution was complete. The proposed document was not without its detractors and several delegates who participated refused to sign the document.[1] A major objection was the lack of specific protections for individual freedoms. The document provided that it would become effective with the ratification of nine states. As the ratification process proceeded, there was a continuing objection by the Constitution's opponents about the lack of a Bill of Rights. The debate that followed would result in the Ninth Amendment.
Federalists Argue: Bill of Rights Unneeded and In Fact Dangerous
The Federalists[2] asserted there was no need for specific freedom protections, as the proposed government was one of specified powers.[3] In fact, the Federalists said, a Bill of Rights was dangerous because it would be impossible to list all rights and leaving some off would imply the new government was free to violate them. The Anti-Federalists[4] failed to find these arguments convincing. The Federalists ultimately promised that after ratification amendments would be introduced to address these concerns. With that promise, the Constitution was ratified.[5]
Promise to Anti-Federalists Kept
The Federalists won control of the First Congress and keeping the promises made during the ratification debates, in 1789 proposed and sent to the states a group of twelve amendments.

The primary architect of the proposed amendments was James Madison. Madison had to deal with the argument that not all rights in need of protection could be included and the concern that naming specific rights would exclude others.
Ninth Amendment Acknowledges Rights Not Mentioned in Constitution
The Ninth Amendment[6] was Madison's effort to ensure the Bill of Rights was not viewed as limiting federal power regarding only rights specifically named. The Ninth Amendment was included to dispel this notion and reads as follows:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Well Known "Enumerated" Rights in the First Seven Amendments
Seven of the first eight amendments are fairly well known.[7] Among the rights guaranteed are free speech, free press, freedom of religion, right to counsel, right to remain silent, right to bear arms, right to a jury trial, and right to be free from cruel and unusual punishment. The Third Amendment right to not have soldiers quartered in one's home is nearly forgotten. The rights defined in the first eight amendments are known as enumerated rights.
Ninth Amendment Protects Rights Not Named in the Constitution
The Ninth Amendment provides the basis for recognizing other, "unenumerated" rights, generally considered to arise from both natural law and the country's common law traditions. The import of the Ninth Amendment is that such rights exist and no constitutional grant of government power extinguished those rights.
Recognized Rights Not Enumerated
There are many rights that are recognized in our society that are not named in the first eight amendments. If the Ninth Amendment did not exist, it might be argued that there was no constitutional protection for:

 The Right of Free Association

 The Right to the Presumption of Innocence

 The Right to a Fair Trial

 The Right to Privacy

These rights and others commonly recognized are never mentioned in the Constitution, but are recognized by the Supreme Court and society generally as having constitutional protection.[8] This is consistent with the founding philosophy expressed in the Declaration of Independence "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights".

[1] Of the 55 participants 39 signed, of those who did not, most had left Philadelphia. Elbridge Gerry of Massachusetts, Edmund Randolph and George Mason of Virginia-refused to sign because they were dissatisfied with the final document.

[2] This was the term by which the Constitution's supporters became known.

[3] These powers are known as "enumerated" and primarily found in Article II, Sec. 8.

[4]The Constitution's opponents. Among them was Patrick Henry. Americans owe a great, generally unrecognized, debt to the Constitution's opponents who insisted on corrections for the shortcomings in protections for individual freedoms.

[5] The ratifying conventions of the various states submitted over 150 suggested amendments along with their ratifications.

[6]This was originally proposed as the 11 th Amendment, but the first two were unratified. The second proposed amendment was ultimately ratified in 1991, becoming the 27th Amendment to the Constitution. ( Some have argued the Ninth Amendment's purpose to be an expression of federalism and along with the Tenth Amendment a protection of state sovereignty. This seems at odds with both founding philosophy and the Ninth's plain language. It may support the Tenth, but it has a power all its own.)

[7]"Fairly well known" is employed loosely. The First Amendment contains five rights and only one in a thousand Americans can name them all.

[8]It is of note that for over 170 years, until 1965 in Griswald v. Connecticut, the Ninth Amendment was not a tool for the Supreme Court to find a law unconstitutional. The Connecticut law involved limitations on availability of contraceptives for married couples. Like the rest of the Bill of Rights, the Ninth Amendment was originally directed to the federal government. Most protections of the Bill of Rights have been applied to state governments by virtue of the Fourteenth Amendment.

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# data[].attributes.attachment_link.description
On September 17, 1787 the drafting of the American Constitution was complete. The proposed document was not without its detractors and several delegates who participated refused to sign the document.[1] A major objection was the lack of specific protections for individual freedoms. The document provided that it would become effective with the ratification of nine states.

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http://ireport.cnn.com/docs/DOC-999903

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THE 7th AMENDMENT OF THE U.S. CONSTITUTION

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"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any C...

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8th+Amendment | Death Penalty and the 8th Amendment — Just another Edublogs.org site

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The fourth amendment is the right to privacy. If a police officer is suspicious, they must go to a judge for a warrant to check. Also, There is no spying.

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