The Right’s Tenth Amendment Myth

Exclusive: Millions of Americans have been deceived into a false understanding of what the Constitution’s Framers intended because of a right-wing lie about the significance of the insignificant Tenth Amendment, reports Robert Parry.

By Robert Parry

A central part of the American Right’s false Founding Narrative is that the Tenth Amendment trumps the Constitution’s creation of a powerful central government that possesses a mandate to do what’s necessary to provide for the country’s “general Welfare.” In Right-Wing World, the Tenth Amendment gives nearly all powers to the states.

Yet, the reality is that the Tenth Amendment is one of the most meaningless of all the amendments to the U.S. Constitution, except maybe the Eighteenth, which prohibited the sale of liquor and was subsequently repealed by the Twenty-first Amendment.

President George Washington, who detested the concept of states' rights because of the harm it did to the Continental Army and to prospect of building a strong nation.

President George Washington, who detested the concept of states’ rights because of the harm it did to the Continental Army and to prospect of building a strong nation.

Indeed, the Tenth Amendment read in the context of the broad powers that the Federalist authors of the Constitution gave to the central government carries almost no weight at all. It says: “The powers not delegated to the United States by the Constitution, nor prohibited by the States, are reserved to the States respectively or to the people.”

But the relevant point is that the Constitution granted nearly unlimited power to the U.S. Congress to enact legislation on behalf of “the general Welfare” within the context of republican governance, with the approval of the U.S. president, and with the sign-off of the U.S. Supreme Court.

This concept — embraced by James Madison, Alexander Hamilton, George Washington and other Framers — was to rely on the Constitution’s intricate checks and balances to prevent government overreach, not to hamstring the people’s elected representatives from doing what was necessary to build the nation both then and in the future.

This reality of what was done in Philadelphia in 1787 was not lost on either supporters or opponents of the Constitution. The so-called Anti-Federalists were shocked that the Federalists had, in effect, hijacked the Constitutional Convention away from its original goal of amending the Articles of Confederation, which made the states “sovereign” and “independent” and left the central government as merely a “firm league of friendship.”

But General George Washington, in particular, despised the concept of states’ rights, since he had seen his Continental Army go without pay and supplies to nearly starve during the Revolutionary War. He was joined in this sentiment by his bright protégé Madison and his old wartime aide-de-camp Hamilton.

So, the Constitutional Convention tossed out the Articles of Confederation and proposed a new structure making “We the People of the United States” the nation’s new sovereign and relegating the states to an inferior status, what Madison called “subordinately useful.”

Angry People

I realize that this reality or my pointing it out makes some people angry. They want to believe that their hatred of the federal government matched what the Framers felt. And the Right has done a remarkable job in propagandizing a large segment of the U.S. population into believing this invented narrative.

Some right-wing believers even insist that any action by the U.S. government to provide for “the general Welfare” is “unconstitutional,” such as the Affordable Care Act which addressed what was an undeniable threat to “the general Welfare,” the fact that tens of millions of Americans were forced to live in fear of premature death because they could not afford health insurance.

But the Framers’ mandate to provide for “the general Welfare” was not some mistake or afterthought. It is included both in the famous Preamble and in Article One, Section Eight, which delineates the so-called “enumerated powers.” There, the Constitution states “That Congress shall have Power To provide for the common Defense and general Welfare of the United States,” with the only stated restriction that “all Duties, Imposts and Excises shall be uniform throughout the United States.”

Article One, Section Eight further grants Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Put together, as Alexander Hamilton and other Federalists noted, the Constitution empowered Congress to do what was needed to protect and build the new nation. As historian Jada Thacker wrote, “these clauses restated in the vernacular flatly announce that ‘Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.’”

And that was not just the view of the Federalists back then or some historian today. It was why the enemies of the Constitution fought so hard to block its ratification in 1788. For instance, New Yorker Robert Yates, who walked out of the convention in protest, wrote a month after the Constitution had been completed:

“This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends. The government then, so far as it extends, is a complete one. It has the authority to make laws which will affect the lives, the liberty, and the property of every man in the United States; nor can the constitution or the laws of any state, in any way prevent or impede the full and complete execution of every power given.”

Madison, then a staunch Federalist, had favored giving even more power to Congress and making the states even more subordinate. “Madison wanted the federal assembly to have a veto over the state assemblies,” wrote David Wootton, author of The Essential Federalist and Anti-Federalist Papers. But Madison’s veto idea was jettisoned in favor of giving the federal courts the power to judge whether state laws violated the Constitution.

Fighting the Constitution

Despite these few concessions, the Constitution emerged from the secret meetings in Philadelphia as a stunning assertion of federal power. Anti-Federalists immediately recognized what had happened and rallied strong opposition to the new governing framework.

As dissidents from the Pennsylvania delegation wrote: “We dissent because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.” [See Consortiumnews.com’s “The Right’s Inside-Out Constitution.”]

The Constitution’s broad powers were particularly alarming to southern slaveholders because of the prospect that the North would eventually gain economic and political supremacy and push through anti-slavery legislation that would wipe out the South’s vast investment in human chattel and thus destroy the region’s plantation aristocracy.

Virginia’s Patrick Henry and George Mason made this argument most aggressively to Virginia’s ratifying convention, with Henry warning the Commonwealth’s slave owners that if they approved the new governing structure, “they’ll free your niggers!”

Faced with these alarms about federal powers, Madison agreed to propose some limiting amendments though he felt that a Bill of Rights was superfluous. Nevertheless, some of the first ten amendments did specifically restrict Congress’s power.

For instance, the First Amendment begins with the phrase “Congress shall make no law” while other amendments assert specific rights of citizens. The Tenth Amendment, however, simply states that powers not granted to the national government by the Constitution remain with the people and states.

Thus, the scope of the Tenth Amendment is entirely dependent on what preceded it, i.e., the nearly unlimited powers that the Constitution granted to the national government. In other words, if the Framers declared as they did that Congress could enact any law that it deemed necessary to promote “the general Welfare” and that federal law would be supreme, then the Tenth Amendment meant almost nothing since there were few powers left over for the states. It was a sop to the Anti-Federalists.

Still, the Constitution’s opponents especially slave owners in Virginia did not just surrender after ratification. Instead, they devised a clever strategy for preventing the possibility that Congress would wipe out their massive capital investment in slavery.

Behind the charismatic Thomas Jefferson, who was in Paris in 1787 and thus did not participate in the Constitutional Convention, the plantation aristocracy simply pretended that the Constitution didn’t mean what it said.

Jefferson’s Wordsmithing

Jefferson, one of Virginia’s biggest slaveholders and a masterful wordsmith, promulgated the absurd notion of “strict construction,” which meant that only specific powers mentioned in Article One, Section Eight could be exercised by Congress. Regarding domestic policy, that meant such relatively narrow powers as coining money, setting up post offices, establishing rules for nationalization, regulating interstate commerce, etc.

Jefferson’s “strict construction” was absurd because it ignored the obvious intent of the Framers and the need for the United States to act in ways that could not be specifically anticipated in 1787, a reality that confronted Jefferson himself after he was elected president in 1800.

Three years later, President Jefferson had the opportunity to buy the Louisiana Territories from France but there was no wording in Article One, Section Eight about expanding the size of the United States. Clearly, the Framers had enacted elastic phrasing for just such an eventuality but Jefferson had insisted on his crazy “strict construction” argument.

So, what did Jefferson do? He simply ignored his previous “principle” and implicitly accepted the Federalist interpretation of the Constitution, which they had principally authored. Congress approved the purchase of the Louisiana Territories doubling the size of the United States and giving Jefferson what is regarded as his greatest accomplishment as president.

Though even Jefferson the inventor of “strict construction” chose to repudiate his own argument, this insidious notion has survived the past two centuries in the fetid swamps of Right-Wing World.

It was a factor in the South’s resistance to anti-slavery restrictions that preceded the Civil War and it has been touted in modern times by such right-wing luminaries as Supreme Court Justice Antonin Scalia as part of his self-serving “originalism,” i.e., whatever Scalia wants done must have been what the Framers wanted done.

The real history of the Constitution has little impact on these ideologues. They have simply found it useful to wrap themselves in the cloaks of the Framers even when that requires distorting what the actual Framers intended.

While there can be legitimate arguments about the proper size and scope of the federal government (or for that matter any government), the facts should be the facts and the history should be the history. The Right, however, has deceived millions of Americans into believing a false narrative about the U.S. Constitution and the nation’s Founding for the purpose of distorting the debate.

[For more on this history, see Consortiumnews.com’s “The Right’s Dubious Claim to Madison” and “Thomas Jefferson: America’s Founding Sociopath.”]

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com). For a limited time, you also can order Robert Parry’s trilogy on the Bush Family and its connections to various right-wing operatives for only $34. The trilogy includes America’s Stolen Narrative. For details on this offer, click here.

15 comments for “The Right’s Tenth Amendment Myth

  1. Warren Raftshol
    November 10, 2014 at 02:25

    Article V (or 5 ) of the Constitution requires a Constitutional Convention when 2/3 of the states request it. My state, Michigan, is the 34th state to so petition. With an anti-federalist upsurge, now is a good time to make a few changes to prune away what has become a statist mess ie., the US Govt.

    I, for example, would prefer a Constitution which says only that “All power is inherent in the people” and nothing more, leaving all federal questions up to a direct vote of the people on everything. Direct democracy can be easily accommodated by secure internet voting.

    I hereby call this Constitutional Convention to order. The above paragraph is my draft of the new Constitution. Please submit your votes in the comments below.

  2. Mark
    November 6, 2014 at 17:37

    So that means if one state is manufacturing nuclear waste they can’t just dump in the river and let it go in the ocean. Sounds like a good idea for everyone concerned.

  3. Thomas Howard
    November 5, 2014 at 17:26

    The author Robert Parry contorts history and facts to a degree that could not possibly be considered a mistake or honest error.

    He knows perfectly well the disinformation he spews forth, so there is no use arguing with him. Mr Parry has no desire for the truth.

    For those who DO desire the truth, read the letter James Madison wrote to James Robertson, part which says:

    ‘With respect to the two words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.’

    And read Alexander Hamilton in Federalist 83:

    ‘This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.’

    James Madison in Federalist 41:

    ‘ For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.’

    Research on your own because Mr Parry is not attempting to enlighten you…just the opposite.

    It is saddening to me, because I found this site refreshing in the defense of Gary Webb.

    • Jada Thacker
      November 10, 2014 at 01:13

      TM:

      “Research on your own because Mr Parry is not attempting to enlighten you…just the opposite.”

      Thank you, but I have already researched on my own.

      Mr. Parry certainly is not trying to “spew forth disinformation.” He is putting forth his views, as all of us do in this forum, including you.

      I appreciate that you have cited the Federalist Papers in defense of your position that Mr. Parry spews disinformation.

      But has it not occurred to you these were written by Federalists — that is, by the people who wanted to scrap the Articles wholesale in order to establish a much more powerful central government — not to benefit the many, but the few?

      Has is not occurred to you that the Federalists Hamilton and Madison were politicians? Or that politicians often lie through their smiling teeth? Or that their prime motive in writing their bits in the Federalist Papers was to tamp down the understandably vocal suspicions of the Anti-Federalists that a virtual coup d’etat was in progress?

      And it was. The instrument to achieve this coup was the Constitution. Neither its drafting, nor ratification, was authorized by a vote of the American people at large.

      The motives of the Federalists were not divulged in their disingenuous Federalist pieces — which arguably spewed forth their own disinformation, including the tidbits you cited. Indeed, the purpose of the Federalist writings were to sell the new system to those who believed it would result in exactly the same overwhelming central power for which it was intended and ultimately achieved.

      The power of the government has not changed. The real argument is over who ought to wield that power.

      Mr. Parry and I may very well have divergent views concerning the origin and the designed purpose of the Constitution, even though he cites a corroborating article of mine in his present piece. But I do not think he is trying to deceive anybody.

      Deception, however, was the general purpose of the Federalist Papers, written by the 1%, but now apparently granted status as Holy Writ by the 99%, including yourself.

      It ought to be painfully obvious the entire purpose of the Constitution was to consolidate power into the hands of the few — but again to whose purpose?

      Mr.Parry makes the argument this consolidation was meant primarily to disparage the power of the several states — especially slave states; I have a somewhat different view.

      But that doesn’t make him a charlatan, as you have suggested, nor does it make the Federalist Papers the repository of disinterested political virtue that you uncritically presume it to be.

    • Thomas Howard
      November 10, 2014 at 22:41

      Parry made the outrageous claim that the ‘general welfare’ clause ‘granted nearly unlimited power to the U.S. Congress to enact legislation on behalf of “the general Welfare” ‘.

      And it was Mr Parry who chose Madison and Hamilton along with the Federalist to prove his foolish pretense.

      So I did some research…and I found Madison and Hamilton both explaining the ‘general welfare’ clause…and I cited who said what…where they said what…and when they said what.

      If you yourself are supposed to be a historian…why don’t YOU explain what I cited Madison and Hamilton as stating???

      Or better yet…show me an historical account from our founders claiming that the ‘general welfare’ clause gave Congress ANY power in itself.

      You can’t show me…Mr Parry can’t show me…hence the gymnastics by the both of you.

      You are a waste of time, because you dodged the truth that I shared with you. Not one peep. lol

    • Jada Thacker
      November 12, 2014 at 21:48

      Mr. Howard,

      The Constitution plainly says in Art I, Sec. 8. that Congress shall have the power to pass laws to provide for the “general welfare” — which term is not defined.

      This is fact.

      Hamilton’s and Madison’s arguments, made after the Constitution was written, in support of its ratification, have nothing to do with “truth” as you say, nor do their arguments change the words plainly written in the Constitution for all to see.

      It is not the opinions of these men, but the words of the ratified document itself that give or restrict the power of government.

      Do you not understand that the words of the Constitution determine the power of government, rather than the opinions of partisan lawyers who were trying to promote it?

      The Federalist Papers are not the Law of the Land. The Constitution is.

      Dispute that if you will.

    • Thomas Howard
      November 14, 2014 at 19:14

      I know I was born a free man, I don’t kiss any king or queens ass, no matter what clever disquise they take form in.

      Individual freedom is never spoken of, it is looked down on as a person who doesn’t want to be a team player.

      You collectivist can pretend you are in power, but you don’t own me and never will.

      So play your foolish game, but don’t you ever make the mistake of getting in MY face and robbing me for the ‘General Welfare’…I’ll open you eyes to reality very quick.

  4. Kevin Schmidt
    November 5, 2014 at 14:20

    By the way, the people even have sovereign rights over the Constitution. That is why on six different occasions, the people elected men into the Senate and the House who were under the ages of 30 and 25 respectively. No one of them was removed from office for being too young. One man was so young that when he ran as an incumbent for the House and won again, he was still under the age of 25.

    We the People Sovereignty is also why we have Jury Nullification. Since the people are the sovereignty, they have the right to set aside the law when they are in verifiable consensus.

  5. Kevin Schmidt
    November 5, 2014 at 13:58

    The US Government sovereign myth.
    It is “We the People,” in verifiable consensus, who are the supreme sovereignty in the United States, not the US Government. The Constitution was written to limit the powers of the US Government, not turn it into a sovereign power with dictatorial powers over the people.

    • Warren Raftshol
      November 10, 2014 at 02:34

      Here, here! (Or is it “Hear, hear” ?) Anyway, I agree with the above comment

  6. Dave S
    November 5, 2014 at 04:38

    I’ve personally read the history both ways, however I think I’ll have to disagree with the author on this one. Why bother with all the amendments and legalise if you’re whole case is “general welfare”? It seems to me that the entire constitution is completely unnecessary by your interpretation, which I find a bit dubious.

  7. Mike Lamb
    November 5, 2014 at 02:36

    The 10th Amendment does not say one word about States having rights because States do not have “rights” as States are Government not people.
    People have “rights”
    The 10th Amendment speaks of Powers reserved to the States OR TO THE PEOPLE.
    However, as States used their Powers to surpress rights of the People the 14th Amendment removed certain of the Powers that could have been seen as reserved to the States or the people by the 10th Amendment.
    That section of the 14th Amendment reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    The word “right” and the word “rights” appears 15 times within the Constitution of the United States. Five (5) of those instances, beginning with the 14th Amendment, relate to the “right” “to vote.”

  8. blokestera
    November 4, 2014 at 22:48

    Robert/ I love and follow your work ‘religiously.’ What I see here are religious arguments on both sides. Clearly, the framers, regardless of the “easter eggs” in the Constitution, had misgivings about a “king,” misgivings about totalitarianism, and misgivings about money and banking. So, the “right wing nuts” that you describe are not without some support, most obviously within the anti-federalist papers. Not-suprisingly, these independence-oriented documents are not taught in school… So it would make sense that a child of the establishment such as yourself would take to the denigration of their viewpoints.

    To the point, I think it is the adversarial nature of American life that gives it life, much as the beat of a Heart goes from contracted to expanded. American would not be the place that it is (or was) without the inherent suspicion of concentrated power. The States are truly the labs of democracy, and thank heavens that we have these oil and vinegar dichotomies.

    I’m not a “right-wing nut,” but I am disappointed that you saw no value in the non-statist viewpoint.

  9. blokestera
    November 4, 2014 at 22:47

    Robert/ I love and follow your work ‘religiously.’ What I see here are religious arguments on both sides. Clearly, the framers, regardless of the “easter eggs” in the Constitution, had misgivings about a “king,” misgivings about totalitarianism, and misgivings about money and banking. So, the “right wing nuts” that you describe are not without some support, most obviously within the anti-federalist papers. Not-suprisingly, these independence-oriented documents are not taught in school… So it would make sense that a child of the establishment such as yourself would take to the denigration of their viewpoints.

    To the point, I think it is the adversarial nature of American life that gives it life, much as the beat of a Heart goes from contracted to expanded. American would not be the place that it is (or was) without the inherent suspicion of concentrated power. The States are truly the labs of democracy, and thank heavens that we have these oil and vinegar dichotomies.

    I’m not a “right-wing nut,” but I am disappointed that you saw no value in the non-statist viewpoint.

  10. Zachary Smith
    November 4, 2014 at 22:24

    I make a half-hearted effort to follow the shenanigans of the loonies, but the 10th Amendment as an issue is one I missed.

    A quick bit of boning up located this little essay.

    http://www.huffingtonpost.com/paul-abrams/the-15th-amendment-trumps_b_3527256.html

    As it says, the Roberts Court had an agenda, and ignored the parts of the Constitution which trumped the 10th Amendment.

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