"I consider the foundation of the [Federal] Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [10th Amendment]
To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition."
--Thomas Jefferson: Opinion on National Bank, 1791
Among the first orders of business of the First Congress was the debate over establishing a bill of rights. Although the Constitution had made the separation and enumeration of powers very clear, the American people and the States wanted certain rights of the people to be explicitly stated within its text. After securing their independence from Britain, our Founding Fathers understood, better than anyone else, what freedoms a despotic and tyrannical government would attempt to take from the people.
The rights enumerated to the people in the bill of rights are those that are required to be exercised by the people if they are to retain their power over the government. For example, the inherent freedom of speech is one that any despotic government must take in order to control information. After all, knowledge is power; so whoever controls the dissemination of information has the power. Similar to the freedom of speech, the freedom of assembly, religion, and the right to bear arms and maintain a militia are all just as necessary to the people so they always have the means of establishing themselves as the ultimate authority over the government.
Not everyone believed that the bill of rights was necessary. For example, Alexander Hamilton believed that the structure of the Constitution was enough to bind down the federal government. He explains that the Constitution is set up so that the people of America “surrender nothing” by delegating powers to the central government. In that sense, Hamilton was right. Any federal legislation that falls outside of the confines of the Constitutional limits of Congressional power is by default unconstitutional; it is a breach of contract; it is an invasion of the sovereignty of the State or the States and the will of We the People. In Federalist No. 84, Alexander Hamilton uses the Preamble of the Constitution to explain that a bill of rights is not necessary. Hamilton wrote:
“[Our Constitution is] professedly founded upon the power of the people...Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. ‘WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do establish this Constitution for the United States of America.’ Here is a clear recognition of popular rights...”
Hamilton then went on to reference several articles, sections, and clauses which did, in fact, identify the structure of the new government as one that protects the rights of the people. Hamilton’s main fear was that the enumeration of certain rights would lead to the belief that those certain rights were all the rights of the people and that they were granted by the benevolence of the government. In the end, the will of the people and the States led to the ratification of the bill of rights.
With one hundred proposed amendments supplied to Congress by the States, James Madison initiated the debate. Of the proposed amendments, only ten were selected for ratification as the people’s bill of rights. Two amendments chosen for ratification, the ninth and tenth, were designed to be solid reinforcements of the limited role of the federal government. These two amendments did not enumerate any rights to the people; rather, they were composed in a manner that identified the rights of the people as almost completely unlimited.
The ninth amendment to the United States Constitution was written to explain that the people have rights that go beyond what is expressed in the bill of rights, thus eliminating Hamilton’s fear that a bill of rights would be identified as the entirety of the rights of the people. The Ninth Amendment states:
“The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment gives explicit attention to the protection of liberty by preventing the federal government from reaching beyond its delegated powers. In other words, the Ninth Amendment is saying “just because we list some of the people’s rights it does not mean that we have listed all of the people’s rights.” It also means, “all the rights of the people need to be protected but here is a short list of the ones that need special attention.” The Ninth Amendment is not a delegation of power; it is a statement of understanding The Ninth Amendment ensures the context of the bill of rights as a protection of the people’s liberty; not as granting the peoples liberty. James Madison stated this understanding as he proposed the bill of rights on the House floor when he said:
“It has been objected also against a bill of rights, that, by enumerating particular exception to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.”
Just as the Ninth Amendment is written to reinforce personal liberty, the Tenth Amendment is written to reinforce the limitations of the federal government by making it clear that undelegated powers belong to the people unless given by the people to the States or the federal government. Just in case the Preamble to the Constitution wasn’t clear enough; incase Article 1 Sections 3 and 8 were not made clear at all; in case Article 2 Section 2 and Article 4 Section 4 left the American people wondering whether the States or the federal government had more authority to govern the people, our Founding Fathers added one last reinforcement for State sovereignty. That last reinforcement of State sovereignty came with the ratification of the Tenth Amendment to the Constitution. The Tenth Amendment says that before Congress can act, it must point to one of their enumerated powers as the source of their authority; and if they do not have that power enumerated to them, then it is a power left to the people. The Tenth Amendment states:
“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 the people.”
“All the powers we forgot to give the federal government and all the powers we forgot to tell the States they don’t have....those powers then, are by default, given to the States and to the people.”
“If they didn’t put it in the Constitution then they didn’t put it in Washington!”
It was America’s intent all along to keep the States free from intrusiveness that might someday come from an overbearing and tyrannical central government. Also, many people do not know that Article II of the Articles of Confederation, America’s first form of government, had a similar provision which clearly stated the same point:
“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.”
Much like the previous declaration in the Articles of Confederation, the Tenth Amendment to the United States Constitution defines the scope of federal power as only that power enumerated to the federal government by We the People. All power that is not enumerated to the federal government must necessarily remain with the States or the people. To further assure the American people of this limit on the federal government’s ability to intervene in their lives, James Madison wrote in Federalist No. 45:
“The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former [federal power] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce...The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State.”
Should the people ever decide to enumerate any more power to the federal government, we can amend the Constitution to legally provide for that delegation of power. We have already discussed the amendment procedure which is detailed in Article 5 of the Constitution.
This is why we call it the federal government; because it is a federation of sovereign States. Governments exist on two levels in America: the defined sovereignty of the federal government and the indefinite sovereignty of the State governments. Madison referred to this when he said, “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” State Sovereignty is not unlimited, simply because the States have delegated some power to Congress. States do however have indefinite sovereignty because of the indefinite issues that exist outside of those powers delegated to Congress. James Madison, the Father of the Constitution and the drafter of the Bill of Rights, had this to say about the sovereignty of the States:
“[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general.”
By this point, we have come to understand that the United States Constitution is saturated with the idea of having sovereign States; free to exercise all the powers reserved to them outside of those delegated to the federal government. Not only have we found that the States have a larger array of powers but we have also found out that the federal government exist only for the benefit of the States so that they may enjoy domestic tranquility, a general welfare and have provided for them, a common defense. We have also discovered that the federal government, according to the Constitution prior to the ratification of the 17th Amendment, could only operate with the consent of the States. It is obvious, considering the principles outlined in the Declaration of Independence, that just as our government operates only with our consent for the protection of our rights, so does the federal government operate only with the consent of the States to protect the sovereignty of the States.
Copyright 2012 by Paul Curtman, All rights reserved. Don't Tread On Me! The Constitution and State Sovereignty. 2009
Although one of the most debated issues at the Constitutional Convention was the apportionment of United States Senators to the States, the principles that defined the role of the Senator were understood and agreed upon. From the text of Article 1 Section 3, prior to the ratification of the 17th Amendment, we understand that the role of Senator is designed to be a check on the Federal government from the State in a sole effort by the State to maintain it’s Constitutional sovereignty. Here is the first part of Article 1 Section 3 prior to the ratification of the 17th amendment:
“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one vote.”
James Madison, the Father of the Constitution, explains the purpose of having US Senators and the reason they were originally appointed by the State legislatures. Madison believed that in order for the States to protect the freedom of their citizens, they must be active participants in the affairs of the Federal government. Here are Madison’s words:
“Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”
I like how Madison started out by saying "Whenever power may be necessary for the national government..." because he is implying that the national government does not always need power. The state legislatures, he says, must have a means of defending themselves against the encroachments by the federal legislature and the best way to do that is to give the states a mechanical function within the federal legislature. That is the purpose of the Uited States Senate- to jealously guard the jurisdiction of the states. So now, in those cases in which the federal government does need to exercise power, it can only do it with the advise and the consent of the states; if the states approve, the senate will approve.
According to Article 1 Section 3, prior to the ratification of the 17th amendment, United States Senators were chosen by the Legislatures of the States; this provided the States with the appropriate means of defense. This method of establishing Senators by appointment would do a tremendous service for protecting the sovereignty of the individual States in more than one way. First of all, the office of United States Senator would be an appointed position made by elected state legislators, thus encouraging the Senator to follow the orders of the state if for nothing more than the sake of job security. In Federalist No. 62, James Madison said that select appointments were recommended for the purpose of:
“Giving to the state governments such an agency in the formation of the federal government, as must secure the authority of the former, and may form a convenient link between the two systems.”
By allowing the States to appoint their own Senators, the Individual State would then have the necessary means of defending itself against the encroachments of the national government. The Constitution provides other resources for the protection of State sovereignty, but as Madison pointed out, what better means can be provided to the protection of the States then by making them an actual mechanical part of the workings of the national government; establishing Senators whose duty is bound to their State and not the nation as a whole. An appointed Senator would be given the office by the elected State legislatures and sent to the Federal government in Washington DC to be a check on the Federal government; duty bound to represent and protect the sovereignty of his State from federal encroachments.
Another reason behind the appointment procedure is so that if the Senator was not representing the will and the sovereignty of the State, then the State legislature could convene and remove him from office and appoint another in his place to serve a term of six years. In other words, although US Senators served six year terms, they could be “hired and fired” if necessary in order for each State to maintain its individual sovereignty. I have heard Americans voice their disappointment time and again when their Senator ignores them; refusing to hear them or represent them in Washington DC. The only solution anyone ever has to this predicament is to wait until the six year term of the wayward Senator expires and then vote him out of office. Our Founding Fathers had a better idea however when they drafted the Constitution. Before the 17th Amendment, US Senators would routinely meet with State legislatures in order to discuss the goings on of the federal government and the states positions on the various issues. The Senator was in a position where he must act on behalf of his State alone and not the influence of lobbyists, friends, the President or even a political party; he almost had to be a statesman or else he may lose his job.
Here is something else to think about, prior to the ratification of the 17th amendment, US Senators never had to raise millions of dollars in order to campaign for an election. This eliminated all kinds of problems that pertain to temptation, corruption, making campaign promises that they never intend to keep as well as all the baggage that goes into becoming and staying popular. The role of the United States Senator is to protect the sovereignty of his individual State so that the State legislatures can operate freely based on the will of the people that elected them. This is the only way to maintain the principle of governing with the consent of the governed, and our Constitution is structured to ensure citizen consent from the federal level all the way down to the State and even local levels. Considering the original process by which US Senators were seated, I think is it fair to assume that state legislatures would be seen as more important than they are given credit for today and thereby encourage more government participation at the State level.
With the ratification of the 17th amendment, we have allowed the duty of United States Senators to blow with the political wind away from the States and into whatever means of security they think will keep them in office. The 17th Amendment to the United States Constitution was ratified by the States on April 8th, 1913. The first sentence reads as follows:
“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.”
When the States ratified the 17th amendment to the US Constitution, a fundamental change took place that was for the most part completely unintended. To put it simply, the unfortunate change was the turning of Senators from statesman into politicians. Instead of being duty bound to the sill of the state government, US Senators are now duty bound to the party, the popular ideas or even emotional trends. The problems with the 17th amendment have even been recognized by US Senators including one from Georgia, former US Senator Zell Miller, who stated from the floor of the Senate:
“Direct elections of Senators…allowed Washington’s special interest to call the shots, whether it is filling judicial vacancies, passing laws, or issuing regulations.”
With the ratification of the 17th amendment, the American people have thrown the United States Senator from off the principled pedestal of statesmanship and into the arena of power politics. Although the process by which we place our Senators has changed, one thing has not changed- why we have them.
In my humble opinion, it does not matter so much how our senators are chosen near as much as the character of the senators we choose; the job description of a US Senator has not been amended or repealed, they are still there to protect the sovereignty of the states; we just need to make sure they understand that.
Copyright 2012 by Paul Curtman, Don't Tread On Me! The Constitution and State Sovereignty.
The Gadsden Flag from Americas war for Independence.
Today a bill was presented that would allow Missourians to purchase a special made license plate with the Gadsden Flag on it. This flag was used by early American patriots as a symbol of our individual liberty and our wish to be left alone to pursuit happiness with out the coercive intrusiveness of an out of control government that is bent on micro managing the lives of the people and depriving them of their money, property and freedom.
This bill is supported by a bi-partisan effort but there are some who do not like it because people associated with the TEA Party often use the Gadsden flag at their events or they display it on a bumper sticker. Most of the opposition came from a representative who asked several members on the house floor if they were members of the TEA Party. The representative was against the license plates because the TEA Party uses the flag; that it. She basically said the flag is offensive and that the rattlesnake on the flag sends the wrong message. If the license plate was to have the words TEA Party on it or some other symbol that is exclusive to the TEA Party, then I would totally see her point but to be against such an important piece of American history directly related to our struggle for liberty simply because you don't like the people that identify with it not something that I can agree with.
I inquired of the lady on the house floor and she confirmed that she doesn't have a problem with the bears on our state flag. I told the lady that I am a proud supporter of the TEA Party because I believe Thomas Jefferson was right when he said "Resistance to government is so valuable on occasions that I wish it to be always kept alive." I am inclined to support anyone who is for limited, accountable and financially responsible government. I identify with the message that governments are instituted to protect our rights and this is the message TEA Parties I am familiar with promote. Yes, I am likely to be a proud supporter of any organization that promotes the protection of our freedom and sound financial principles no matter what they are called.
The preservation of liberty was the idea behind the Gadsden flag and I think every American can appreciate a special license plate that reflects those values although some of them may or may not agree with the TEA Parties.
About the Gadsden Flag from my book, Don't Tread On Me © 2009
DON’T TREAD ON ME! In other words, and in another time, its meaning was unmistakable: “Leave me alone, or else!” It was a popular phrase in the early days of America’s war for independence and it is most famous for the yellow flag on which it was written just underneath a picture of a rattlesnake. A decade prior to America’s Declaration of Independence, there were several patriot groups which worked fervently for the protection of the people’s individual rights. Among these were groups such as The Sons of Liberty, whose South Carolina group was led by a man named Christopher Gadsden, a Colonel who served in the Continental Army. It was Colonel Gadsden who presented this flag to Esek Hopkins, the Commander-in-Chief of America’s new navy, for him to use as his personal standard. Colonel Gadsden also presented this flag to the State Legislature of South Carolina in Charleston. The record of this presentation is recorded in the South Carolina Congressional Journals:
"Col. Gadsden presented to the Congress an elegant standard, such as is to be used by the commander in chief of the American navy; being a yellow field, with a lively representation of a rattle-snake in the middle, in the attitude of going to strike, and these words underneath, “Don’t Tread on Me!”
The Gadsden flag began to gain popularity among the Americans maybe because it almost perfectly symbolized the American patriot. Before too long, this particular symbol and others like it could be seen flying over buildings or painted on signs. In December of 1775, an anonymous letter was written to the Pennsylvania Journal in which the author signed his name as “American Guesser.” There are many scholars who attribute this pen name to none other than Benjamin Franklin. This letter was written after the Revolution began but before the Declaration of Independence was signed, and it provides the reader with a unique perspective of the symbolism behind the rattlesnake. The writer of the letter began by saying :
“ I observed on one of the drums belonging to the marines now raising, there was painted a Rattle- Snake, with this modest motto underit, ‘Don’t tread on me.’ As I know it is the custom to have some device on the arms of every country, I supposed this may have been intended for the arms of America…I sat down to guess what could have been intended by this uncommon device…”
The writer of this letter found it appropriate that the rattlesnake be identified with the American patriot as he stated, “it occurred to me that the Rattle-Snake is found in no other quarter of the world besides America.” The American patriot was constantly on guard, maintaining a keen situational awareness and therefore the rattlesnake, with its sharp eyes, “May be esteemed an emblem of vigilance.” Neither the rattlesnake nor the American patriot ever strikes until they have “generously given notice, even to her enemy, and cautioned him against the danger of treading on her.” Another interesting point, and one that has to do entirely with the subject of this book is the opinion formed by the observant eye of the author of this letter when he stated, “I confess I was wholly at a loss what to make of the rattles, ‘till I went back and counted them and found them just thirteen, exactly the number of the Colonies united in America…Tis curious and amazing to observe how distinct and independent of each other the rattles of this animal are, and yet how firmly they are united together.”
The Gadsden flag is, to this day, still used by the United States Navy and it flies over America’s oldest commissioned United States Naval ship, appropriately name by George Washington, the USS Constitution.