The majority of Americans right now cannot tell you what the Tenth Amendment of the Constitution of the United States says, let alone what it really means or why it is in our Bill of Rights. That is because since 1865, it has been watered down to be of minimal effect. Though it was considered at the time of its ratification to be maybe the most important safeguard and an all-encompassing reassertion of the guarantee of state sovereignty, those wishing for comprehensive power to be consolidated into the central government eventually won. They won a war, and they won the narrative. If might makes right, then there is nothing left to argue. States, in that case, retain no authority that Washington D.C. wishes to attain.
Does might make right, though? Was the USSR’s murder, starvation, imprisoning, and complete control of the Russian people right because the Communist Party’s desire for an all-powerful central authority won for about 80 years? Is North Korea’s all-encompassing control and persecution of its citizens right? I do not believe most Americans would assert that any authoritarian regime is right by virtue of his ability to forcefully subject the people of a country to its authority. We know that principles determine what is right, not simply the power to force others into submission.
Did the principle the Tenth Amendment embodied change since it was written? Did the supposedly sovereign states amend the Constitution to acquiesce to a supreme all-encompassing central government? No, the foundational principle never changed and the states have not consented to an all-powerful central government. Therefore, the original voluntary contract amongst the individual sovereign states and the central government they created remains the same. The states have never consented to give the remainder of their original sovereignty to politicians in Washington D.C.
Quite often, though, contracts are violated. The builder does not use the materials stipulated; the car dealer does not honor the warranty; or the employee disregards the non-disclosure agreement. As with any breach of contract, one party can successfully get away with ignoring the terms if the other party does not protest and enforce them. If the arrangement has been broken by a rogue actor, the offended signatory must object, protest, and challenge until it has either successfully restored the conditions of the contract or they have been equally absolved of their role in the contract.
When it appeared the newly written Constitution of the United States was unlikely to be ratified by the nine states necessary to enact it, John Jay, Alexander Hamilton, and James Madison set out to defend against the opposition’s charges in a series of writings now called The Federalist Papers. In 1788, James Madison published “Federalist 39” to quell the specific fear that the Constitution would not create a truly republican form of government.
The idea that the distinct sovereignty of the individual states would be dissolved and all people of the many states would be the direct constituency of the new central government was called nationalism, and was in contrast to federalism. Federalism was the concept that the central government was a union between the sovereign states instead of the individuals of all the states en masse. Madison contended that the ratification of the Constitution was a federal act.
“Each State, in ratifying the Constitution, is considered a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal and not a national constitution.”
Madison further clarifies the importance of the distinction, as well as its significance for the division and limitation of central authority.
“In [a national government], all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In [a federal government], the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
In the following essay, published just two days later, Madison defended that the convention that drafted the Constitution had authority to do so because they were keeping the principles of the predecessor to the Constitution, the Articles of Confederation, which acknowledged the complete sovereignty of the individual states.
“I ask, What are these principles? Do they require that in the establishment of the Constitution the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.”
These are just examples of the numerous times the very drafters, supporters, and salesmen of the Constitution affirmed and promised that the individual states did not have to fear a central government usurping their individual sovereignty. Repeatedly and unequivocally, within the Federalist Papers, the debates of the ratification conventions, speeches, and their letters, every founding father that promoted the Constitution guaranteed that the central government would be limited to the clear, concise, and enumerated powers listed in the Constitution. Clearly, though, they did not hold to their end of the deal.
What does someone do when a contract has been broken? How do you hold both parties accountable to the terms? Most sound modern contracts establish an arbitration method within the contract. This always consists of a third-party with no close relations and no direct interest in the success of either party. If the arbitration clause stipulated that one party’s friend, family member, or personal lawyer would decide whether the contract had been breached, no wise person would ever sign the agreement. That, however, is what most people assume is the only allowable response to alleged violations of the Constitution’s terms. They think one branch of that central government, the Supreme Court, can reasonably be relied upon to determine if another branch of that same cartel has been faithful to the contract. The ratifiers representing the states never would have (and never did) agree to such a ridiculous arbitration process. That process, called “judicial review”, was not in the Constitution and only came to exist when a Supreme Court decision created it in 1803. Thomas Jefferson understood that the Supreme Court was naturally in league with the rest of the central government and it would illegally lead to the loss of all state sovereignty. He wrote,
“…the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic, and that, too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the Federal Court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”
Whether or not the three branches of the offending party agree, they have undoubtedly broken the contract. Laws have been made, executive orders mandated, and Supreme Court cases decided that all uphold usurpations upon the powers reserved to the states- that is every power not specifically enumerated in the Constitution. The current proponents of an all-supreme central government will point to the Supremacy Clause of the Constitution and subsequent Supreme Court ruling that have successfully expanded its scope.
Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Alexander Hamilton, in Federalist 33, addressed the concerns over the Supremacy Clause. I included a larger portion of his statement to give context, but if it is a bit much, I have added bold to the crux of his defense.
But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.
To paraphrase, Hamilton argues, Of course a law is supreme. If it doesn’t have power to be required, it’s not a law. However, no matter what ‘law’ a government passes, if that government never possessed the authority to make the rule, then it’s not a real law. It’s just a usurpation of its given power and should be treated as such.
The sovereign states have accepted usurpations as real laws, though they derived from no Constitutional authority. To enforce those usurpations is a breach of contract. If we allow the breaches to go uncontested, then the contract is worthless and we are at the mercy of the merciless offender. However, we can stand up, demand the agreement be honored, and refuse to acquiesce.