America's Counter-Revolution: The Constitution Revisited by Sheldon Richman

Author:Sheldon Richman [Richman, Sheldon]
Language: eng
Format: epub
Tags: Constitution, Non-Fiction, History, USA
ISBN: 9780692687918
Google: ir7XjwEACAAJ
Amazon: 0692687912
Publisher: Griffin & Lash
Published: 2016-04-05T23:00:00+00:00

10

The Constitution or Liberty

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

W

e might think those words—or words to the same effect—are in the U.S. Constitution. But they are not.They are from Article II of the Articles of Confederation, America’s first constitution. They could have been placed in the U.S. Constitution but were deliberately left out in1787and again in1789.

As we saw in the last chapter, after the Constitution was ratified, something vaguely like Article II was added to the Constitution as the 10th Amendment. Unfortunately it is like Article II in the same sense that a whale is like a fish—superficially.

As noted in the last chapter, the 10th Amendment says:“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.”

One significant difference, as we’ve already seen, is that Article II qualifies the word delegatedwith expressly. The10th Amendment does not, due to the James Madison’s opposition.The difference was no oversight.Thus while the Articles of Confederation really was a document of explicitly enumerated congressional powers, or an honest attempt at such, the Constitution, contrary to widespread belief, was not.

The two clauses had another significant difference, as William Crosskey noted in Politics and the Constitution in the History of the United States(1953).Article II says expressly undelegated powers are retainedby the states. But in the10th Amendment, such powers are reserved.To retain is to keep what one already possesses.To reservesomething to someone does not imply it was previously possessed.Thus the10th Amendment diminishes the states compared to Article II. Crosskey also offers per

73 suasive evidence that virtually no one—neither the Federalists nor AntiFederalists—thought the10th Amendment changed the nature of the Constitution. On the contrary, it was taken as a reaffirmation.

In a research 2005paper titled “The Dubious Enumerated Power Doctrine” (online at https://law.utexas.edu/faculty/calvinjohnson/DubiousEnum.pdf ) Professor Calvin H. Johnson of the University of Texas Law School presented formidable evidence that the framers had no intention of limiting the national government’s powers to the16items listed in Article I, Section8, of the Constitution.

“In carrying over the Articles’ wording and structure, they removed old Article II’s limitation that Congress would have only powers ‘expressly delegated’ to it,” Johnson wrote.“When challenged about the removal, the Framers explained that the expressly delegated limitation had proved ‘destructive to the Union’…. Proponents of the Constitution defended the deletion of ‘expressly’ through to the passage of the Tenth Amendment. That history implies that not everything about federal power needs to be written down.”

The Federal Convention of course operated on the assumption that more, not fewer, powers were needed for the national government than were allowed under the Articles. Johnson quotes some of the framers to indicate this attitude.As already noted, Madison wrote to Jefferson that “the evils suffered and feared from weakness in Government have turned the attention more toward the means of strengthening the [government] than of narrowing [it].”

When

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.