Article the Tenth, Bill of Rights — The Tenth Amendment
“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.” Article Ten, United States Constitution
Shortly after ratification of our Constitution, some of our Founders set about to append Ten Articles to known as The Bill of Rights, which were ratified on December 15, 1791. Commonly referred to as “Amendments,” it is important to distinguish Articles from Amendments in that Articles are part of our Constitution and Amendments alter parts of our Constitution. The addition of the Bill of Rights was the source of hotly contested debates among our Founders. Many objected to listing the innate Rights of Man which are “Endowed by our Creator”, because such listing might convey that those indigenous rights are subject to amendment by man.
It is commonly held that Western governance is founded on the political theory of liberal individualism, where the primacy of the many (individuals) is exalted above the one (society). In this sense, modern government in the West is seen as a reaction against medieval feudalism and the authoritarian impulse that eventually gave rise to absolute monarchism in European. The 18th century Enlightenment, then, emerges as a challenge to European absolutism, reconstituting society upon the foundation of the individual and the individual’s rights.
Upon closer examination, however, such an explanation leaves much to be desired. The Enlightenment did not liberate the individual from absolutism, but itself became a new absolutism by giving birth to the French Revolution and the ensuing chaos that engulfed France and much of the continent. Nevertheless, there is a catalyst for the movement away from authoritarianism in the annals of Western history. But if not out of the Enlightenment, from where does this catalyst for political change emerge? The answer to this question is found some two centuries prior in the Protestant Reformation.
For the Protestant reformers, Federalism encapsulated God’s dealings with humanity. All humanity, they said, exists under one of two federal heads: Adam (representing fallen man) or Christ (representing man redeemed). God’s common-grace covenant with the former group, and His covenant of redemption with the latter group are intrinsically federal, both in structure and content. Structurally, both the Old Testament theocracy and the New Testament church are organized federally: As families, tribes and the kingdom under the Old, and as churches, presbyteries and general assembly under the New. In content, both the Old and New Testament arrangements exist with Christ as representative head (the Old in anticipation, the New in fulfillment) and in both the emphasis upon salvation (though not exclusive) is corporate, not individual. Salvation is inseparable from one’s federal representation in Christ.
Prior to God’s covenant with man, the Trinity existed eternally in a federal and covenantal relation between the members of the Godhead. Federalism is intrinsically related to the idea of covenant, to the extent that the two concepts are virtually interchangeable. The Latin word foedus, meaning “covenant,” is also the word from which “federal” is derived. As a corrective to the claims of Rome (and later as a corrective to the counterclaims of the Anabaptists and other radicals), federal (or covenant) theology was as much a part of the essence of the Reformation as the doctrines of the Solas and liberty of Christian conscience.
Though increasingly explicit through the works of Martin Luther, John Calvin and others (especially the lesser known but immensely influential Heinrich Bullinger, who guided 16th century Zurich through military, political and theological threats from Rome as well as the Anabaptists), the Reformation’s mature statement on Federalism is said to come from Johannes Althusius (1557–1638), who cements the connections between Federalism and political philosophy. Althusius introduces Federalism as a normative arrangement for government by affirming the need for political power that is both definitively limited and functionally divided. As he writes in his magnum opus on political philosophy, Politica Methodice Digesta, (1603, revised in 1614), “All power is limited by definite boundaries and laws. No power is absolute, infinite, unbridled, arbitrary, and lawless. Every power is bound to laws, right, and equity.”
In his excellent essay, “Althusius and Federalism as Grand Design,” Daniel J. Elazar surmises this third-generation reformer’s understanding of Federalism as a theory of political organization derived from Calvinistic theology:
“As Althusius himself was careful to acknowledge, the first grand federalist design was that of the Bible, most particularly the Hebrew Scriptures or Old Testament. For him, it also was the best – the ideal polity based on right principles. Biblical thought is federal from first to last – from God’s covenant with Noah establishing the biblical equivalent of what philosophers were later to term natural law (Genesis, Chapter 9) to the Jews’ reaffirmation of the Sinai covenant under the leadership of Ezra and Nehemiah thereby adopting the Torah as the constitution of their second commonwealth (Ezra Chapter 10; Nehemiah Chapter 8). The covenant motif is central to the biblical world view, the basis of all relationships, the mechanism for defining and allocating authority, and the foundation of the biblical political teaching.”
Thanks to Althusius and others, by the end of the 16th century federal theology and political thought had spread, becoming the hallmark of the Reformation in Scotland and the Netherlands. In the 17th century, Scottish Presbyterians would join with English Calvinists (Anglicans and Congregationalists) to write the Westminster Confession of Faith. Of all the Reformed confessions, Westminster most embodied the federal tradition of its writers, and helped create the theological and political climate for Federalism’s next great leap forward across the Atlantic Ocean. Here, Federalism would become the guiding principle behind the colonists’ complaints against the British crown, and the founding principle of the new American republic.
In his new book, Federalism and the Westminster Tradition (2007), Mark W. Karlberg briefly explores the relationship between America’s religiously-motivated colonists, particularly the Puritans and other Calvinists, and their impact on the emergent form of government expressed by the nation’s constitution.
He writes, “Unquestionably, Reformed Federalism [here referring to Presbyterian church polity derived from Calvinist theology] played a significant role in the rise of American democracy, specifically, in the articulation of the representative form of government served by various branches of leadership. What made its lasting imprint on American society was the Presbyterian form of government, not the content of religious belief, namely the Reformed faith. Calvinism would continue to retreat from the mainstream of public discourse, only to be silenced by the dominant voice of secularism in the public square.”
It was the polity of Presbyterianism, meaning its form of organization and government, not Presbyterian theology that made a lasting impact upon the American state. The federalist structure of American government, with its bottom up structure of authority and its divisions of power between the branches of government and between state and local governments, was inspired by the institutional structure of Presbyterian church government. Like the presbyteries which appointed representatives to form a general assembly, American states would appoint representatives to form a Congress. And just as presbyteries and assemblies in the Scottish Presbyterian tradition derived their authority from local congregations, so too was the authority of the states and of the national government delegated to them by its citizens.
It is especially notable, then, that none less than our Constitution’s author and one of the authors of The Federalist Papers, James Madison, was taught theology and political philosophy at the nation’s foremost Presbyterian institution, Princeton (then the College of New Jersey), under the tutelage of one of the foremost Calvinists of the day, John Witherspoon.
Contrary to the claims of its critics (as well as some of its supporters), who saw the fledgling nation’s new Constitution as historically and philosophically detached from the West, or else inextricably mired in Enlightenment rationalism, Madison’s arguments stand in the best tradition of the Reformation’s federalist thought. Steeped in the theological and political traditions of Federalism, the richness of Madison’s writings in defense of the Constitution come to have new meaning.
In Federalist No. 39, Madison touches upon the covenantal nature of the states’ would-be federal arrangement, voluntarily bound by mutual obligation. “Each State,” he writes, “in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.” In one of his most famous statements on Federalism, in Federalist No. 45, Madison highlights the definite limits placed upon power in such a federal structure, writing, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
This theme is echoed by fellow federalist Alexander Hamilton, who in Federalist No. 9 addresses the relationship between the one and the many in a federal system: “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.” Or, as Joseph Story states in his Commentaries on the Constitution (1833), “…the state governments are, by the very theory of the constitution, essential constituent parts of the general government. They can exist without the latter, but the latter cannot exist without them.”
Two centuries later, Story’s claim that the federal government cannot exist apart from the states seems hardly plausible. For all the American federalists’ contributions, the claims of 18th century Federalism may seem idealistic today, as with Hamilton’s address to the 1788 New York Ratifying Convention: “The State governments possess inherent advantages, which will ever give them an influence and ascendancy over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation.” In the same year, Madison wrote in Federalist No. 46, that “ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. … But what degree of madness could ever drive the federal government to such an extremity.” As Madison, Hamilton and Story would witness in their own lifetimes, and as the anti-federalists among the Founders understood, the country’s new federal system would be subject to abuse. The abuse of Federalism is the legacy of government we inherit in the 21st century.
In 1990, John Kincaid, executive director of the U.S. Advisory Commission on Intergovernmental Relations and editor of Publius: The Journal of Federalism, wrote, “more than 50 percent of all federal statutes explicitly preempting state and local authority enacted in our 200-year history have been enacted during the last 20 years.” Similarly, by 1990, 35-percent of all Supreme Court decisions ruling the actions of a state or local government to be unconstitutional had occurred in the past 25 years. At the same time, Kincaid notes, state governments have experienced something of a renaissance in the aftermath of Lyndon B. Johnson’s Great Society. “Activism, professionalism, innovation, experimentation, and competence,” he writes, “are among the attributes now more often applied to state – and local – governments than to the federal government.” This trend has continued into the present. While not always successful, the states have begun to reclaim their function as “laboratories for democracy.”
Much of the renewed vitality among the states that Kincaid observes owes its existence to Ronald Reagan’s commitment to enforcing constitutional limits on the federal government. As Reagan understood, constitutional constructionism (that is, interpreting the Constitution in light of the Founders’ intent) and Federalism are inextricably bound. Without its federalist framework, the Constitution’s purpose in guarding the liberties of citizens through prescribed, limited powers and divisions of powers would unravel.
Reagan’s understanding of Federalism’s importance to the essential character of the Republic is poignantly seen in his 1987 Executive Order on Federalism (EO 12612). Reagan states, “Federalism is rooted in the knowledge that our political liberties are best assured by limiting the size and scope of the national government.” What is more, the authority of the federal government is delegated to it by the states: “The people of the States created the national government when they delegated to it those enumerated governmental powers relating to matters beyond the competence of the individual States.” And, all importantly, the Constitution grants to the federal government only those powers explicitly reserved for it: “All other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the States or to the people. … The constitutional relationship among sovereign governments, State and national, is formalized in and protected by the Tenth Amendment to the Constitution. … In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual States. Uncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level.”
For Reagan, it was of chief importance not only to affirm these principles, but also to reintroduce them to policymaking. On “formulating and implementing policies that have Federalism implications,” EO 12612 states, “There should be strict adherence to constitutional principles. Executive departments and agencies should closely examine the constitutional and statutory authority supporting any Federal action that would limit the policymaking discretion of the States, and should carefully assess the necessity for such action. To the extent practicable, the States should be consulted before any such action is implemented.”
And, Reagan states, an issue of national concern is not necessarily a concern of the national government. This is one of American Federalism’s finer points, and one worth considering. He states, “It is important to recognize the distinction between problems of national scope (which may justify Federal action) and problems that are merely common to the States (which will not justify Federal action because individual States, acting individually or together, can effectively deal with them).” Contrary to the doctrine of utilitarian government, it is the law and not the problem itself that defines the government’s response. If the Constitution does not prescribe responsibility to the federal government, then the federal response is to leave action in the hands of state and local governments.
Indeed, as Thomas Jefferson recognized, not only are the States “the most competent administrations for our domestic concerns,” but in so doing they are also “the surest bulwarks against antirepublican tendencies.” If Federalism is to preserve our country’s historic preservation of the balance between the one and the many, the states must see themselves as bulwarks against the encroachments of the center once again.
Our Constitution established a Republic intended to reflect the consent of the governed, a nation of laws, not men. Article IV, Section 4 state unambiguously, “The United States shall guarantee to every state in this union a republican form of government…” The states should tolerate no less.
Further Reading: The One and Eternal Testament or Covenant of God, Heinrich Bullinger Politica Methodice Digesta, Johannes Althusius The Federalist Papers, Alexander Hamilton, James Madison & John Jay The Anti-Federalist Papers, (various authors and collections) Farewell Address, George Washington Commentaries on the Constitution, Joseph Story Democracy in America, Alexis de Tocqueville The Social Contract, or Principles of Political Right, Jean Jacques Rousseau The American Commonwealth, James Bryce On Liberty and Representative Government, John Stuart Mill The Man Versus The State, Herbert Spencer The Idea of a Christian Society, Thomas S. Eliot A Basic History of the United States, Charles A. Beard The Rise of Totalitarian Democracy, J. L. Talmon The Road to Serfdom, Friedrich August von Hayek Freedom and Federalism, Felix Morley