Amendment X

[coat4gun]

"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 language of this amendment confuses me a bit, but let me see if I can tear it apart for clarification.

"The powers not delegated to the United States by the Constitution," obviously limits the Federal government's Power to only what is delegated in the Constitution (and BOR)...

it is the second phrase that gets me...

"nor prohibited by it to the States," "it" seems to refer to the Constitution, so the phrase could be re-written "nor prohibited by (the Constitution) to the States,"... so there are things in the Constitution that prohibit power to (or from) the States. What are those prohibited powers? Waging war is one I can think of.

and lastly... "are reserved to the States respectively, or to the people."... so if a power isn't granted to the Federal government by the Constitution or BOR... and the Constitution doesn't mention that the States can not have a certain power... then the Power is in the States... or if the States do not take the Power the People have it.

So... when the Constitution or BOR protects a certain right of the people, doesn't the 10th "prohibit" the State that Power?

 

[ieszu]

It should.... but the government hates anything that limits their powers even more than they hate guns.... so they use the "inter-state commerce" clause and ignore the 9th and 10th amendments...

 

[Titan6]

You have to think of it in the context prior to the giant bear-o-crazy that we have today. Any power surrendered to the federal government was looked upon as a restriction to the states. The point of the ammendment was to say "this is it, the fed does not get any more power". Laughable these days I know; but that was the intent.

But in answer to your question:

So... when the Constitution or BOR protects a certain right of the people, doesn't the 10th "prohibit" the State that Power?

Any right that is spelled out in the constitution is supposed to protected against interference from the states. But it has never been the case at any time in out countries history. Keep in mind, up till 40 years ago blacks had their rights violated in every possible way in many states. The fed did not lift a finger to help.

 

[mordechaianiliewicz]

What? Tenth Amendment? Really? What's that?

 

[MrTuffPaws]

What? Tenth Amendment? Really? What's that?

Don't know. I'm still trying to hunt down the 9th.

 

[shield20]

I will take a wack at this..

The 10th was a summary of numerous proposals of similiar nature.

A.O.C.
Article II. 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.

A few State ratifying committees:
First, That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.

that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same

The 10th amend:
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.


It should be clear that ALL power derives from the people. It should also be clear the people have numerous natural & unalienable rights. During the revolution, and formally under British rule, certain of these powers & rights were given (up) by the people to form their new respective State govts (i.e. people now had a duty to serve in the state militia). These powers were delegated in State constitutions to the State (i.e. to organize & train a militia of the people), and certain powers/rights of the people were often secured by State BoRs (i.e. to bear arms).

With the ratification of the US Constitution, some of those State powers were then given to the federal govt (i.e. organizing the militias), while others remained with the States (i.e. training the militias), some were prohibited to the States (i.e. enter into any Treaty), and some still were retained by the people - according to their previous social contract (their state constitutions/BoR).

The obvious idea of the 10th was to secure to the States those powers which were not explicitly given to the new government; AND also to secure to the PEOPLE of those States the powers and rights already secured by their State BoRs.

It was originally intended that the powers/rights should be reserved for the people of the several states according to their state BoRs, NOT generally to the people of the "United States"; but the way it was written allows some interpretation to what rights & powers are reserved and to "what people".

Richard Henry Lee to Patrick Henry, 14 September 1789 re: proposed amendments

By comparing the Senate amendments with those from below by carefully attending to the matter - the former will appear will calculated to enfeeble and produce ambiguity — for instance — "Rights reserved to the States or the People". The people here is evidently designed for the People of the United States, not of the Individual States...the former is the Constitutional idea of the people — "We the people &c.". It was affirmed the Rights reserved by the State's bills of rights did not belong to the States — I observed that then they belonged to the people of the States, but that this mode of expressing was evidently calculated to give the Residuum to the people of the U. States, which was the Constitutional language, and to deny it to the people of the Indiv. State — At least that it left room for cavil & false construction — They would not insert after people thereof — altho it was moved.

So OK, what does all this mean to us and our rights? The US Constitution BoR was (originally) applicable only to limiting the federal govt for securing rights of we the people of the United States from federal infringements. The 9th amendment is SUPPOSED to further secure to the people of the several States those powers/rights already secured in their State constitution/BoRs, at least those NOT explicitly given to the new govt. (i.e. duty to serve in the state militia even when in federal employ). Since the BoR was applicable only to the feds, it did not (originally) prohibit the States from infringement on the rights enumerated...the people of the states were to turn to their state constitutions for such securities.


HOWEVER - The 2nd amendment and OUR right to arms ARE special - thanks to the militia clause - as the Militias of the several States are needed for the freedom/survival of both the States and the Union. Effective Militias ARE REQUIRED and have VERY vital roles to play in securing our liberties, as listed in the Constitution. The right to arms can NOT be infringed by ANY govt, because to do so would deny the other the very entity necessary for it's freedom, and the freedom of it’s people - the well regulated Militia.

 

[hugh damright]

"The powers not delegated to the United States by the Constitution," obviously limits the Federal government's Power to only what is delegated in the Constitution (and BOR)...

Right ... except that the USBOR does not delegate any federal power.

There are things in the Constitution that prohibit power to (or from) the States. What are those prohibited powers? Waging war is one I can think of.

Article I, Section 10 begins "No State shall", and enumerates a number of restrictions. But there are other restrictions, for instance the SCOTUS said in Presser v Illinois that no State can disarm its Citizens because it would interfere with federal militia powers as well as general powers of the federal government.

Of course, I'm focusing on the original intent ... many of the later amendments bind the States ... and today, the way some people would have it, the 14th "Amendment" restricts the States in any way which they might need restricting, which seems to go beyond the idea of delegated powers and assume that the federal government has jurisdiction over all things ... and that right there seems to be what the Tenth was intended to guard against.

when the Constitution or BOR protects a certain right of the people, doesn't the 10th "prohibit" the State that Power?

The USBOR was not intended to empower the federal government or to bind the States. If it was, for instance if the Second Amendment said that no State shall infringe on the RKBA, then we wouldn't need to turn the Tenth to figure out that the States were prohibited.

The way I understand it, the way to fit the Tenth in with the rest of the USBOR is to view the amendments as denying federal jurisdiction, leaving it up to each State ... for instance, in this view the Second Amendment would mean that the federal government had no jurisdiction over gun control, and that gun control powers were reserved to each State. And the First Amendment would mean that it is up to each State to judge their own laws regarding free speech and a free press. Jefferson expressed such a view in his draft of the Kentucky Resolutions:

"_Resolved_, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that "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;" and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference." -Thomas Jefferson, Draft of Kentucky Resolutions.

Of the States' requests for the Tenth Amendment, I believe that New York said it best:

"that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several [individual] States, or to their respective State Governments to whom they may have granted the same"

The way I understand it, the intended declaration is that undelegated powers in Virginia are reserved to the Virginia government or to the people of Virginia. Many people try to make the Tenth say that rights are reserved to the people of the whole US, but I believe that what it was intended to say is that undelegated powers remain with each State or with the people thereof.