The Exceptional Tenth Amendment and Its Exception

by Matt Erickson from www.PatriotCorps.org

The last of the Amendments of the Bill of Rights, the Tenth, is as exceptional as the others, declaring:

“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 essence of the Tenth Amendment is that the States individually reserved all the powers which they didn’t collectively delegate over to the federal government.

Qualifiers must be inserted into that broad statement, of course, because within the Constitution, the States also voluntarily relinquished, back to the people at large, some of the powers which the States had previously exercised but were thereafter prohibiting themselves from exercising, such as the power to emit bills of credit (the power to issue a paper currency).1

The principle of reserved powers is actually inherent within the delegation of enumerated powers. Thus, by the very structure of the original Constitution, the principles of the Tenth Amendment were in force even before it was ever formally proposed and ratified as an amendment. The ratification of the Tenth Amendment simply validates and acknowledges this strict constitutional principle openly and unambiguously.

The Preamble to the Bill of Rights informs us that the amendments therein (including the Tenth) help to “prevent misconstruction or abuse” of federal powers and help extend the ground of “public confidence” in the general government.

But do they today?

Does the Tenth Amendment today actually help prevent the abuse of federal powers? Does it today extend public confidence in the federal government?

Sadly, it doesn’t, or at least not anywhere near as it should. In fact, by most measures, the Tenth Amendment appears quite impotent.

The Tenth Amendment forms the central basis of the horribly-misnamed “States’ Rights” movement, an otherwise welcome effort to place appropriate brakes on unauthorized federal powers and return them back to the States.2

The Tenth Amendment serves as an appropriate rallying point for patriots, although sadly it also stands today as the shaky foundation for all sorts of false assertions alleged by otherwise well-intentioned patriots, who continuously assert burdensome federal powers in apparent excess of the Constitution are ‘unconstitutional’.

When tested in court, the powers in question, time and again, however, are upheld as within the power of the federal government to exercise.

So constitutionalists cry ‘foul’ even louder, but this burying of one’s head in the sand is without effect, other than in failing to provide an effective barrier to the federal government from getting larger and ever more powerful.

It is as if strict-constructionists are missing something of profound importance; as if they don’t understand something among the most basic of constitutional principles.

So the source — the Constitution — is studied further, only nothing is discovered because conservatives study the same information from the same incomplete mind-set which wholly misses the point of how government may ever act in apparent contradiction to the Constitution.

To these lost patriots, the exceptional Tenth Amendment appears as a dead-letter and the other limitations imposed within the Constitution, impotent.

But what if the exceptional Tenth Amendment is not a dead-letter; what if it simply has an exception which constitutionalists entirely overlook or otherwise foolishly ignore?

To understand what is transpiring under their very noses, strict constructionists cannot afford to ignore any constitutional principle, no matter how seemingly-irrelevant it appears to their case at first glimpse.

The question which patriots must ask themselves today, after decades and even centuries of defeat, is whether there is ever a time when the States do not reserve powers unto themselves; i.e., is there ever a time when the Tenth Amendment simply does not apply?

When the States act collectively, the answer is ‘no’.

All powers not delegated to the United States by the States united under the U.S. Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people, whenever the States act together.

But acting individually, that is another thing altogether.

And that is the proper starting point to begin making sense of centuries of government nonsense.

Every State in the Union, has, voluntarily, under Article I, Section 8, Clause 17 of the U.S. Constitution, individually ceded or transferred from their reserved powers, all the rest of those governing powers they have over specific tracts of land and have given these powers and land over to Congress and the U.S. Government, for authorized federal purposes.

In 1791, the States of Maryland and Virginia voluntarily gave up all of their reserved State powers, in a specific area of land not over ten miles square, for the future federal seat (what in time became the District of Columbia).3

And every State in the Union (counting again Maryland and Virginia), has also ceded lands to Congress and the U.S. Government for “Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.”

In all of these “exclusive legislative” areas authorized under Clause 17, no longer does any State have any reserved powers, other than in the latter areas States often reserved one or more powers, such as to serve civil process.

In these Article I (Section 8, Clause 17) cessions of power, one State here individually cedes all powers except those specifically and explicitly reserved in their cession law.

Even if a State reserved some other named power (beyond the power to later serve legal papers upon persons found within the lands they gave up), it is imperative for patriots to realize that this cession of power is wholly opposite normal (collective) cessions of State power to the federal government under Articles VII and V, of ceding only named powers and reserving all others.

Cessions of State power under Article I cede all power except what are explicitly named in a reservation of powers!

The cessions of power in both Articles VII and V (combined) and those in Article I therefore wholly oppose each other and are as different as the night is from the day.

Due to such differences, one must realize therefore that the forms of government created under these two mutually-exclusive cessions of State power are themselves mutually exclusive and stand at opposing ends of a political spectrum.

Under the whole of the Constitution, the Congress and U.S. Government were delegated enumerated powers together only with the necessary and proper means to implement those named powers.

Throughout all the States of the Union, outside of exclusive legislation areas, the whole of the Constitution and all of its limitations (including the Tenth Amendment) apply.

This normal Republican Form of Government has but limited power which federal officials and members of Congress are utterly powerless to move beyond or expand.

But in the government seat and exclusive legislative jurisdiction forts and ports, here members of Congress and federal officials have a fantastic amount of discretion to govern as they see fit, Federal Tyranny, as explained below.

In exclusive legislative areas, members of Congress and federal officials here act in the place of the State, but when they do, the U.S. Constitution, including the Tenth Amendment, does not here necessarily apply!

The whole of the Constitution was never meant to address the otherwise local powers of Congress for the government seat, only Article I, Section 8, Clause 17 does so.

The Tenth Amendment reserves powers to the individual States, powers which the States did not collectively delegate to the Congress and U.S. Government.

But despite Article VII, despite Article V, despite the Tenth Amendment, a State may voluntarily, under Article I (Section 8, Clause 17), cede lands and the governing power over those lands to Congress and the U.S. Government for allowed purposes.

Only in these exclusive legislative jurisdiction areas does one American government now have all governing power. Everywhere else outside of these exclusive legislative jurisdictions, governing power is divided into federal and State jurisdictions by the express terms of the Constitution.

After ceding all remaining State power, these ceded lands, legally-speaking, are no longer part of a State; they are federal enclaves where members of Congress may exercise exclusive legislation “in all Cases whatsoever.”

Thus members of Congress and government officials here act in the place of a State, as if they were the State, but emphatically neither they nor the lands are a ‘State’.

Since these enclaves no longer form any part of a ‘State’, it is important to realize that no longer does any State Constitution there remain valid.

Members of Congress do not form any part of any State legislature, so they may enact otherwise local legislation for these exclusive legislative jurisdictions without needing to conform to any State Constitution.

Imagine the extent of power which a State legislature could exercise if no State Constitution defined and limited their power. Well, that is the amount of control the U.S. Congress may exercise in these exclusive legislative jurisdiction areas!

And since these federal enclaves are not legally a ‘State’, neither do the limitations imposed upon ‘States’ in the U.S. Constitution here apply!

Thus, the constitutional limits on States, from emitting bills of credit, for example, do not here apply to Congress legislating for the federal seat and enclaves.

Members of Congress may, for the government seat and federal enclaves scattered throughout the Union, emit bills of credit without violating any constitutional principle.

Doesn’t this sound like the extensive authority which members of Congress and federal officials have been known to exercise for decades and even more than a century? Most assuredly.

But this still doesn’t accurately describe the extent of power which members of Congress and federal officials may exercise here in these exclusive legislative areas, because there is here only one constitutional clause which actually discusses the extent of power which members of Congress may here draw upon, and this clause provides them with the enumerated power to legislate exclusively “in all Cases whatsoever!”

How’s that for essentially unlimited government of unimaginable discretion?

Here in federal enclaves, members of Congress and government officials act with and under the powers which one State individually ceded them, not all the States of the Union!

Members of Congress and federal officials do not even have to draw on any of the powers which all the States of the Union ceded them (in Article VII and Article V [although those powers may also be here exercised]) when they legislate for the government seat and enclaves.

In other words, members of Congress and government officials do have the constitutional ability, under Article I, Section 8, Clause 17, to exercise powers far, far beyond the normal limits of all the other constitutional clauses.

Members of Congress and government officials therefore do have the constitutional ability to ignore the Tenth Amendment, for no substantial powers here in the government seat were ever reserved to any State in the Union!

Members of Congress and government officials therefore do have the constitutional ability to ignore the Tenth Amendment, for no substantial powers here in exclusive legislative jurisdiction forts, magazines, arsenals, dock-yards and other needful buildings were ever reserved to any State in the Union!

Once patriots wrap their minds around this fundamental principle of the Constitution, which has always been with us (since the Constitution was first ratified), they may finally begin to make sense of two centuries’ worth of government nonsense, where the government often seemed to have a split personality, as if it had two different rulebooks under which it could operate, even if patriots couldn’t ever figure out the second.

Once strict-constructionists understand that the U.S. Constitution has always allowed for a second form of government, they may finally begin to understand how the government and the courts have long made them look like ignorant fools who don’t know well the Constitution.

The federal government is not a magical genie, nor a wizard with spectacular power (for the whole Union, anyway), but only a government of limited powers which may otherwise exercise extensive power over small tracts of land (which do not extend to the ‘public lands’ of the western States).

Obviously, for increasing their power and influence, members of Congress and government officials choose to operate primarily through the latter, even if they don’t individually and personally know exactly how they may exercise such extreme amounts of power.

The federal government excels only at keeping American patriots in the dark, keeping the true source of its nearly unlimited power well-hidden from prying eyes. It has no obligation to fully disclose its clever methods of deceit and deception, it just has to rule according to (some) law (ignorance of the law is no excuse).

It is time to follow the lead of the dog Toto in The Wizard of Oz, to follow one’s nose to the true source of the stench and pull back the curtain on the man or woman hiding behind the curtain pulling the levers of unlimited government.

It is time to stop concentrating on electing ‘the right person’ to positions of unlimited power, to stop working solely within democratic confines.

It is instead time to start concentrating on upholding proper republican principles of limited government, where it matters little who wins elections because the powers are limited only to those enumerated, together merely with those means both necessary and proper for their implementation.

Read Patriot Quest, a free download at www.PatriotCorps.org for further information and understanding how this constitutional principle of profound importance was ever overlooked and how it may finally be properly contained or eliminated.

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See also the websites
www.FoundationForLiberty.org
www.Scribd.com/matt_erickson_6
www.Archive.org

Endnotes:

1. See Article I, Section 10 of the U.S. Constitution.

 

2. ‘Rights’, at least when used in its strict sense (as the Declaration of Independence, Constitution, and Bill of Rights use the term), are unalienable and therefore belong only to people, as gifts endowed us by our Creator.

In contrast to ‘Rights’ held only by people, American governments are delegated only ‘Power’. “States’ Rights” is therefore an oxymoron, a contradiction in terms.

The concept of an American government having inherent rights which cannot be separated from it is antithetical to the fundamental principles of American government.

An accurate term for describing the movement to limit the powers of the federal government (instead of the States’ Rights movement) would instead refer to the Reserved Powers of the States.

3. In 1846, because the Virginia lands of Alexandria were deemed no longer necessary for the federal purposes for which they had been ceded, Congress retroceded Virginia’s lands back to her (and so Alexandria is again part of Virginia and no longer a federal enclave). See Volume IX, Statutes at Large, Page 35.

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