What’s Happened to the Basis of U.S. Federalism, the Tenth Amendment of the Bill of Rights?

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What has tragically happened to the status and proper application of the Tenth Amendment of the U.S. Constitution’s Bill of Rights? It seems that no respectable journalist of the paper or electronic media wants to write or talk about the amendment to the electorate anymore as an intransigent part of the Bill of Rights as important, or perhaps more important, as the First, Second, and Fourth Amendments. Yet, during the year 1800 the Hon. James Madison wrote a publicly disseminated report that defined the importance and purpose of the last, but seemingly greatest of the amendments of the Bill of Rights, and Professor Kurt T. Lash, of the University of Richmond School of Law wrote about this report in 2006 in the UR Scholarship Repository in an article entitled, “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment.” The sum and substance of Madison’s defining words about the Tenth Amendment was contained in his following statement from that Report, “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… 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.”

Very few members of the electorate today know about, or even remember, an important U.S. Supreme Court ruling in 1991, which Professor Lash referred to in his article as “the seminal federalism revolution case,” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991), in which Justice Sandra Day O’Connor wrote for the majority of the court that, “statutes should be construed, whenever possible, to avoid interfering with matters traditionally left to the states,” And James Madison defined in 1800 those traditional matters as those that concern the lives, liberties, properties of the people, and the internal order, improvement, and prosperity of the State.” The Tenth Amendment is the shortest, but the most expansive, of the ten amendments of the Bill of Rights, and in its few words explicitly defines the power of federal government over the States, and the States unlimited reserved power to manage their own affairs. But unlike the other nine amendments, it’s meaning and authority was deliberately undermined by the vindictively written Fourteenth Amendment, which was created to effectively eliminate the powers given to the States by the Bill of Rights. A long list of cases prior to 2000 address ardent support for the ruling in Gregory v. Ashcroft, such as New York v. United States, 505 U.S. 144, 149 (1992), and the multiple SCOTUS rulings of unconstitutionality against FDR’s New Deal NRA and the Code of Federal Regulations, and its regulating agencies, substantially proved that the federal government had no actual legal constitutional authority to do what it did to the republic during the 1930s. This was true despite the vile intimidations used by Roosevelt that forced the opposing elder justices into retirement and allowed the socialist President to “pack” the SCOTUS with New Deal supporters.

To me, it would not be improper to historically evaluate and compare what Roosevelt did to the republic through SOTUS sanction to Adolf Hitler’s forcing of German Weimar Republic judges and supreme justices, after 1935, to abdicate their positions, or to become Nazi judges in order to dispense vicious immoral Nazi justice. Professor Lash, in his paper, referred negatively to the effect of Roosevelt on the nation as the “New Deal Revolution” and stated, in paraphrase, that the intent of the Nineth Amendment was essentially lost, in which the Framers simply stated, “The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This might be better stated in contemporary wording as, “the previous eight amendments (of the Bill of Rights) setting forth specific rights in no way take away or denigrate the many other rights retained by the States or by the people.” Lash does say, however, that there was a reinvigoration of federalism, and the constitutional separation of State and federal powers, during the period of the Rehnquist Court (1986 through 2005), but sums up his view of the subsequent deleterious transformation of the Tenth Amendment by stating that, ” Over a period of two hundred years, courts and commentators thus transformed the Tenth Amendment from a declaration of principle to an independent rule of construction.”

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Extrapolating the observations and conclusions of Professor Lash, from the end of the Rehnquist Court to the present day, and to the U.S. Senate confirmation of Judge Amy Cony Barrett, the current nominee to replace the recently deceased SCOTUS Justice, Ruth Bader Ginsberg, I see some tragic disfigurement of the Tenth Amendment in its transformation from a firm and clear declaration of principle explicitly defining the textually limited power of the federal government and the broad unrestricted powers of the States to something nothing more than an arbitrary whim. Before 1925, SCOTUS justices frequently invoked the Tenth Amendment when referring to proper federal issues in the establishment of proper precedent under stare decisis. For example, after Warren Court’s unanimous decision in Brown v. Board of Education of Topeka, 347 U.S 483 (1954), what couldn’t have the federal district courts considered as matters rising under the U.S. Constitution and the laws of the United States; for “education was not an issue stipulated under federal power in the text of the Constitution. Yes, State education was suddenly, in the 1890s, raised to a federal matter in Plessy v. Ferguson, 163 U.S. 537 (1896), when it is nowhere mentioned as a federal power in Article 1, Section 8 of the U.S. Constitution. Yet, in the majority invalidation of Congress’ 1990 Gun Free School Zone Act, Justice Kennedy wrote for the majority saying, “While intrusion on State sovereignty may not be as severe in this instance as in some of our Tenth Amendment cases, the intrusion is nonetheless significant. Absent a stronger connection or identification with commercial concerns that are central to the Commerce Clause, that interference contradicts the federal balance the Framers designed and that this Court is obliged to enforce.” So, how in the name of sophistry could the Warren Court, in 1954, have allowed the determination of an issue, education, not rising under the U.S. Constitution or the laws of the United States, and then have the Rehnquist Court in 1990 declare the Tenth Amendment power of the States as sacrosanct? Such seems highly hypocritical in the originalist light of Madison’s “Report of 1800,” and the original meaning given by the Framers to the Tenth Amendment.

I hope the reader denotes the issue that I am endeavoring to delineate in this essay article, which is the unmitigated trampling of States rights guaranteed by the Tenth Amendment by the federal government, and the perilous ramifications of such trampling? The Framers were not arbitrary about the powers of the States after the U.S. Constitution and its Bill of Rights were ratified by the people. This was what motivated James Madison to write his “Report of 1800.” He wanted to ensure that what was true about the Tenth Amendment in 1789 would be true in perpetuity throughout the life of the republic. What I said earlier in this article about the Fourteenth Amendment’s illicit attempt to subjugate the States’ powers under the Tenth Amendment was sad but all too true. All of the infamous Clauses of the Fourteenth Amendment were specifically intended, at that juncture in history, to vindictively protect only black Americans freed from slavery under the Thirteenth Amendment. No thoughts about the future applications of these odious Clauses was given by the Northern Congress. The Due Process and the Equal Protection Clauses of the Fourteenth Amendment were written by very hastily by an exclusively Northern Congress to punish the Southern States for secession, while not at all taking into consideration that such additions were considered by the Constitutional Convention of 1787 for inclusion into the Constitution’s text. They were, however, both ultimately rejected after serious debate for the primary reason that federal power to legislate and enforce equal protection and due process would give the federal government unlimited power over the States to make any issue a federal issue, and then to turn such issues into precedents. The States were very jealous of their powers and rights, and rightly so since a bloody war had been waged against a totalitarian British king to secure those rights. In fact, Abraham Lincoln, though basically educated, was sorely unread on the proclamations and statements of earlier presidents, such as the Framers Thomas Jefferson and James Madison, who had both stated vehemently, publicly and on paper, that, since the union of the States into a federalist republic was a voluntary experiment in government, those States entering the union had as much right and power to withdraw from that union if the union became detrimental to the interests of the States. It wasn’t law or historical precedence that led Lincoln to start a devastating civil war against secession to preserve the experimental union, but rather his own political dogma, which is now, for some reason, regarded as historically sacred. This just establishes the fact that presidents and Congresses can act, and have acted, to deprecate the U.S. Constitution and the Bill of Rights to the detriment on the American people according to unconstitutional philosophy.

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Precedent, according to the legal doctrine of stare decisis, if wrongly established by the federal court system and SCOTUS can, if followed in subsequent cases, serve to undermine the rights of the people of the United States; for one unlawful precedent can breed other unlawful precedents. For instance, abortion, of any type, was an issue historically and fundamentally governed by, first, the British colonies prior to the American Revolution, and, later, by the State governments. Unnecessary abortions prior to, and after the Revolution and the formation of the Articles of Confederation were those not incident to criminal rape, which involved the aborting of healthy unborn children in healthy pregnant women, and were regarded as against the law, and enforced in most cases by sheriffs and magistrates. After 1789, the statutes against unnecessary abortion were codified by all of the thirteen original States. The historical facts show that few, if no, abortions were recorded as done on healthy mothers by authorized physicians. At that time in history, most young people in the new republic waited until after marriage to have sexual intercourse because, in most cases, pregnancy and children were anticipated by newly-weds, and nearly all abortions were natural ones created by medical problems.

Hence, abortion remained a State issue until long after 1866 and the ratification of the Fourteenth Amendment, when federal district courts improperly established pregnant women in a class-system under the Equal Protection Clause and accepted a State case involving abortion. Actually, the federal issue of abortion was distortedly carved from an invented “right” of privacy proclaimed by the Earl Warren SCOTUS in the Roe v. Wade (1973) as an extension of the Equal Protection Clause of the Fourteenth Amendment, when the word “privacy” is not used or mentioned in the U.S. Constitution. The federal right of privacy was as illogically contrived from nothing as the statement written by Thomas Jefferson to a Baptist Church regarding “separation of Church and State” was lifted from proper context and used as Constitutional doctrine in a 20th Century SCOTUS decision. Though this judicial legislative activism flew in the face of Article 3, Section 2 of the U.S. Constitution, which explicitly states that only “all cases rising under the Constitution or the laws of the United States” will be under the jurisdiction of the federal courts, abortion suddenly became a federal matter. In essence, until the early 1970s, when the Texas case of Jane Roe v. Henry Wade (Dallas District Attorney) tried in the Dallas, Texas Federal District Court, abortion was regarded as a State issue. In effect, the issue tried, abortion, could have been as arbitrary as that of home birthing, if the State of Texas had created a law requiring all births to be done in certified hospitals, and a federal law suit had been filed by the parents opposing the law. Of course, it wouldn’t be been the parents’ fault in seeking relief for a purely state matter in federal court. It would have rather been the fault of the federal district court for allowing it to be filed without its proper jurisdiction. Nonetheless, the Roe v. Wade abortion case progressed through the federal appellate system and finally arrived by writ of certiorari at the SCOTUS, where the Earl Warren Court saw fit to try it. In 1974, the SCOTUS, by a 7-to-2 decision, wrongly established Roe v. Wade as a Constitutional precedent.

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In the proceeding Senate confirmation of Judge Amy C. Barrett, so far Judge Barrett has not mentioned the importance of the Tenth Amendment to the application of proper judicial precedent. The Chairman of the Senate Judiciary Committee, Lindsay Graham, from South Carolina, had formerly questioned, then, Judge Kavanaugh, during his Senate confirmation, about the meaning of proper precedent, by asking Kavanaugh if he would regard as proper precedent a ruling about an issue that was historically a matter of State determination instead of the federal government. Kavanaugh had, to that question, answered that he would “follow precedent.” Any literate member of the American electorate with sufficient common sense will realize, after reading James Madison’s take on the Tenth Amendment, his “Report of 1800,” that the Tenth Amendment is all about federalism and that federalism is all about the Tenth Amendment; and that to disregard it’s prohibitions to the federal government and its reserved allowances to the States is a grievous offense to the process of Constitutional government. The most serious question that should be asked by every sitting U.S. Senator in their own minds during a confirmation is why every person nominated by a sitting U.S. President to the SCOTUS should not be a textual originalist who firmly believes that constitutional precedent should only constitute those matters and issues that are specifically detailed to the federal government in the U.S. Constitution per the Tenth Amendment. To believe otherwise and to ignore the constraints of the Tenth Amendment would be an abandonment of the basic federalism established by the honored Framers. Why would the U.S. Senate confirm someone to the SCOTUS who will sanction judicial legislative activism in establishing precedents by their votes that are not matters and issues falling under the specific powers of the federal government? The answer to the foregoing question will pretty much explain the statement of the distinguished Framer John Adams, that “we are a nation of laws and not of men.” Even though allowing matters, such as abortion or healthcare, to be considered under federal power because poor Jane Row is not allowed in her particular State to have a late-term abortion, or to receive a particular type of healthcare at an affordable cost to her, might seem subjectively and personally proper, abortion and healthcare are not matters that are under the powers granted to the federal government by the Tenth Amendment. The preservation of federalism and Constitutional law is much more important than perverting the law for the sake of one or more American citizens. This is what the Hon. John Adams meant in his statement about a nation of laws and not of men.

Hence, if confirmed SCOTUS Justice Amy C. Barrett joins with a majority of other originalist justices to soon reverse the Affordable Healthcare Act (Obamacare) and Roe v. Wade, and return the power over those issues to the States, she and her associate justices will be doing what the Father of the American Constitution, James Madison, encouraged them to do 220 years ago.

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