[Rurudyne]

This is a new argument for me, much as I say in the text above, and I'm looking for feedback and criticism (as well a comments in general) in order to better express these ideas.

I placed this in "activism" because it is activist: I'm essentially threatening the very basis on which this current administration of laws is deemed proper and by which the so-called progressives are able to do their thing AT ALL.

Or at least such is my intent and hope.

I would also like to point out my belief that what Marshall wrote in Marbury has actually been grossly misrepresented: that the actual opinion demands a methodology for judicial review rather than merely "establishing it". This can be demonstrated by the fact that Marshall himself pointed out in the body of the opinion that if judicial review was proper or not had actually been addressed by a PREVIOUS Case.

[BenLurkin]

We know how government works.

People with lots of money use empty suits as sock puppets.

Voters are given the lousy choice of lose their liberty right away or lose their liberty gradually.

Meanwhile each new law makes the money guys more powerful.

[OneWingedShark]

Interesting read.

But I like how it squarely puts [Federal] Government’s assuming of rights into the context of assuming rights that are not delegated to it.

There is a word for that, if it is a material item: theft.
There is a word also for the illegitimate taking of authority: mutiny.

Correctly seen, the encroachment of government on the Rights of the People IS grounds for the People to defend themselves; even homicide is acceptable when it is done to protect someone’s right-to-life. (”You always have the right to defend yourself. You always have the right to defend US and coalition forces.” — Portion of the standard ROE in Iraq)

[KrisKrinkle]

Aw man, it’s too early on a Sunday for this.

Regarding the question: “Do We the People really establish our government or is the government ‘self-establishing’?”

I would consider changing that to: “Do We the People really establish the Federal Government or is the Federal Government ‘self-establishing’?”

Reason: Clarity. You seem to be writing about the Federal Government, not State and Local Governments. Of course the question is applicable to State and Local Governments, but the essay doesn’t seem to go there. People speak of the “government” as if were a seamless whole but it’s not (not yet anyway).

And I’m not sure about use of the word “establish”.

Government is never “self-establishing” in that in the beginning some person or people always decide to initiate or impose it. On the other hand, like a fire that has been “established” by someone, unwatched government can get out of control and establish itself in areas where it wasn’t before and where it isn’t wanted.

And then there’s this:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and “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”.

Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?

[yefragetuwrabrumuy]

An inherent problem with the US constitution is that, while it establishes many means to restrict the growth of the federal government, it provides few undramatic means to prune the excessive growth of government.

In other words, the individual States need some means by which they can calmly dismantle unauthorized and unruly actions by the federal government.

One means *did* exist, that provided an effective check on the federal government. This was the selection of US senators by the individual States. But this was thwarted in 1913 with the 17th Amendment, after ratification by the States, with the direct popular election of senators.

So the individual States, in a fit of populism, stripped themselves of the means by which the could control an ever invasive and out of control federal government.

Today, with this large number of 10th Amendment resolutions being drafted by the States, since the federal government is ignoring this plea, the next, least dramatic action by the individual States should be the repeal of the 17th Amendment.

The alternative would be for 3/4ths of the States to call a constitutional convention. And as dramatic as this sounds, in a time where federal extravagance has gone beyond the pale, with a complete economic collapse, there may be no other choice.

So a repeal of the 17th Amendment would be the much preferred option. Likely this would mean that 1/3rd of the US senate would be confirmed or replaced by their home State legislature in the following three federal elections.

[Defiant]

We know what the constitution says, and how the government has gone astray. However, 95 percent of the people could care less about theoretical philosophizing about how it is supposed to work. Democrats don't care about law or process, they care about power. Their loyalty is to the establishment of global socialism.

Republicans don't care either. If you polled Republicans, and told them that to follow the Constitution, you have to fundamentally change US foreign policy and its implementation, eliminate social welfare programs entirely (not just control their spending), and get the feds out of just about everything they are doing now in labor, education, energy, just about everthing they now do.

No Social Security? Medicare? Student loans? Foreign aid? Undeclared wars? WWBKS? (What would Bill Krystol Say?) Answer: "No, we can't do that, we are a modern world power. We just have to rein in government a little, not weaken it. (By the way, that Obama, he cuts quite a figure)"

To return to first principles could frankly not be accomplished without a revolution and restoration. Through the political process, the best you can hope for is a conservative parachute placed on a socialist dragster hell bent for the finish line. And even that parachute is in jeopardy, thanks to Obama's authoritarian rule.

So the question I have is, "Who cares"? You might as well create a "SimUSA" with alternate versions of the country, it would be just as relevant. Unless you are willing to combine theory with action.

I agree with this analysis of the intent, by the way, and am not intending to be grumpy, but just pointing out that 90 years of encroaching fascism has led to a system that is not subject to being changed, even if James Madison himself came back from the dead and told us to. Nobody cares what the constitution says anymore.

[CodeToad]

Just remember, during the days of the Soviet Union and their murdering thuggery, they, too, elected their representatives. As with our system, theirs was so corrupt that no representation of the people actually occurred. With our system, we can vote out a person, write letters, make phones, and even protest in the streets, but what elected representative gives a damn? I mean, while you were doing all that they were having lunch with a lobbyist who handed them a check large enough for them to ignore you.

So, now that your 1st amendment rights to speech and to petition the government for a redress of grievances has been trumped by cold, hard cash, what else do you have at your disposal to enforce your rights? (Hint: What comes after the 1st.)

[ForGod'sSake]

Thanks Civ!

An interesting essay I hesitate to comment on in my present(some might say more often than not) loopy condition. I've been following the "Kenyan" certifigate business most of my waking hours over the last couple days and am in no condition mentally to do justice to this essay. That said, my impression of Justice Marshall from what little I've gathered about him is that he was a bit of a bully, more interested in having his way than strictly interpretating his contract, the Constitution. IOW, somewhat of a loose cannon. Other's mileage will probably vary...

Click the 10th Amendment button for articles tagged "10thamendment". A "statesrights" link is atop the forum page.

Please ~ping~ me to articles relating to the 10th Amendment/States Rights so I can engage the pinger.

I've stopped scouring threads and unilaterally adding names to the ping list, so if you want on or off the list just say so.

Additional Resources:

Tenth Amendment Chronicles Thread
Tenth Amendment Center
The Right Side of Life/State Initiatives
Sovereign States
Find Law(Brief narrative on 10th Amendment)

CLICK HERE TO FIND YOUR STATE REPRESENTATIVES

[April Lexington]

We need to dismantle Federal power fast. Strip the legislative and executive functions and restore to the states. Have a small, tightly supervised federal ministry for a clearly defined and limited set of duties. If we don't reel in Congress and the Dictator soon, there will be few non-violent options left...

[Tublecane]

I’m wondering if there’s any way at all for powers to be legitimately delegated. This article sets the statndard that powers cannot be incorporated unless there was some sort of process that was seen as being legal. Accept no process is ever seen as legal and perfectly legitimate by everyone. And that’s important because if “the people” are sovereign, we take it to mean all the people are sovereign every last one of them.

What about all the people who voted against ratification of the Constitution? Their sovereignty is to be sacrificed in favor of a legal proccess they never assented to? Might as well vote to strip people of their sovereignty by majority vote. What about people born after the ratification process, like me, who no one bothered asking? My sovereignty is forfeit upon my birth because I was born in a nation that got the support of some slice of “the people” some time in the distant past? I might as well never have had it.

In conclusion, popular sovereignty doesn’t exist in the real world, never did. It was a sop to the masses, something to make them feel the men protecting or cheating them (depending on the situation; mostly swindling) cared what they thought any more than the absolute monarchs. Legitimacy is a matter of practicality. Legality takes shortcuts, because that’s the only way to do it. Civilization continues to be a colossal swindle.

[marsh2]

To understand the reserved rights of the People, I believe you must go back to the second treatise of John Locke’s “Two Treatises on Government,” entitled “An Essay Concerning The True Original, Extent and End of Civil Government” which appeared in 1690. That, and its intellectual progeny, paint a picture of the world view embraced by the revolutionary colonists.

Locke believed that the natural state of men was a “state of perfect freedom to order their actions and dispose of their possessions and persons as they see fit. Within the bounds of the law of nature, without asking leave or depending upon the will of any other man.” The law of nature referenced was that “being all equal and independent, no one ought to harm another in his life, health, liberty or possessions....” Should another transgress against him, the individual had the natural right to use force proportionate to restraint and reparation.

This natural state and natural law was the basis of compact to come together for better protection of each and every person’s life, health, liberty or possessions – to delegate that power each individual had in nature to a government formed for these purposes. A compact is not a contract but an agreement where each gives up or surrenders the same thing (natural power of force) in exchange for the same thing (greater security of life, health, liberty and possessions.) There is also an inherit balance between the thing surrendered and the thing received.

In 1778, the state constitutional delegates from various Massachusetts towns in the County of Essex wrote a declaration reacting to the constitution drawn by its own existing colonial legislature which explains this concept.

Excerpts from the “Essex Result,” 1778

“All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of these rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange. Sometimes we shall mention the surrendering of a power to controul our natural rights, which perhaps is speaking with more precision, than when we use the expression of parting with natural rights - but the same thing is intended. These rights which are unalienable, and of that importance, are called the rights of conscience. We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a controul over it, is an usurper; for no consent can be pleaded to justify the controul, as any consent in this case is void. The alienation of some rights, in themselves alienable, may also be void, if the bargain is of that nature, that no equivalent can be received. Thus, if a man surrender all his alienable rights, without reserving a controul over the supreme power, or a right to resume in certain cases, the surrender is void, for he becomes a slave; and a slave can receive no equivalent. Common equity would set aside this bargain.

“When men form themselves into society, and erect a body politic or State, they are to be considered as one moral whole, which is in the possession of the supreme power of the State. This supreme power is composed of the powers of each individual collected together, and voluntarily parted with by him. No individual, in this case, parts with unalienable rights, the supreme power therefore cannot controul them. Each individual also surrenders the power of controuling his natural alienable rights, only when the good of the whole requires it. The supreme power therefore can do nothing but what is for the good of the whole; and when it goes beyond this line, it is a power usurped. If the individual receives an equivalent for the right of controul he has parted with, the surrender of that right is valid; if he receives no equivalent, the surrender is void, and the supreme power as it respects him is an usurper. If the supreme power is so directed and executed that he does not enjoy political liberty, it is an illegal power, and he is not bound to obey. Political liberty is by some defined, a liberty of doing whatever is not prohibited by law. The definition is erroneous. A tyrant may govern by laws. The republics of Venice and Holland govern by laws, yet those republics have degenerated into insupportable tyrannies. Let it be thus defined; political liberty is the right every man in the state has, to do whatever is not prohibited by the laws, to which he has given his consent. This definition is in unison with the feelings of a free people. But to return - If a fundamental principle on which each individual enters into society is, that he shall be bound by no laws but those to which he has consented, he cannot be considered as consenting to any law enacted by a minority; for he parts with the power of controuling his natural rights, only when the good of the whole requires it; and of this there can be one absolute judge in the State. If the minority can assume the right of judging, there may then be two judges; for however large the minority may be, there must be another body still larger, who have he same claim, if not a better, to the right of absolute determination. If therefore, the supreme power should be so modelled and exerted, that a law may be enacted by a minority, the enforcing of that law upon an individual who is opposed to it, is an act of tyranny. Further, as every individual, in entering into the society, parted with a power of controuling his natural rights equal to that parted with by any other, or in other words, as all the members of the society contributed an equal portion of their natural rights, towards the forming of the supreme power, so every member ought to receive equal benefit from, have equal influence in forming, and retain an equal controul over, the supreme power.

“It has been observed, that each individual parts with the power of controuling his natural alienable rights, only when the good of the whole requires it; he therefore has remaining, after entering into political society, all his unalienable natural rights, and a part also of his alienable natural rights, provided the good of the whole does not require the sacrifice of them. Over the class of unalienable rights the supreme power hath no controul, and they ought to be clearly defined and ascertained in a Bill of Rights, previous to the ratification of any constitution. The bill of rights should also contain the equivalent every man receives, as a consideration for the rights he has surrendered. This equivalent consists principally in the security of his person and property, and is also unassailable by the supreme power; for if the equivalent is taken back, those natural rights which were parted with to purchase it, return to the original proprietor, as nothing more is true, than that allegiance and protection are reciprocal.”

Justice Chase for the Court in Calder v. Bull, declared 3 U.S. 386 (1798):

“...I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.”

As was stated in Munn v. State of Illinois, 94 U.S. 113 (1876):

“...When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. ‘A body politic,’ as aptly defined in the preamble of the Constitution of Massachusetts, ‘is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.’ This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non laedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583, ‘are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern men and things.”

It is clear that the social compact as understood by our Founders describes the purposes to which government should be directed. The “reserved” powers of the People include those areas reserved from government, some of which are rights of conscience and several of which are expressed in the Bill of Rights. I believe some of these reserved are inherent in the compact – that regulation shall not reach to control an individual except to protect the lives, health, liberty and possessions of the general population as a whole, where each individual would receive a benefit equal to others. This maximizes the liberty of the individual and protects him from the tyranny of the majority.

The constitution, as one Pennsylvania writer stated: “describes the portions of power with which the people invest the legislative and executive bodies, and the portions which they retain for themselves.” Indeed it was “the particular business of a Constitution to mark out how much they shall give up.” It was “the charter or compact of the whole people, and the limitation of all legislative and executive powers.” So we have a reservation both to the subjects of government power and the form of the exercise of that power. Both appear to have been substantially exceeded.

[Nosterrex]

I am not a lawyer, much less a constitutional lawyer. Perhaps my understanding of political theory is too simplistic. At least the Declaration of Independence, which I know is not the same as the Constitution, based government upon the people's God given right to pursue happiness. It is to this purpose that the people allow themselves to be governed. Undelegated powers would in that case be the right of the people, not the right of the government. At least in theory, the government cannot usurp those undelegated powers without the consent of the governed. How this fits in with the idea of unalienable rights, that is rights that can't be ignored or revoked even by the governed or the government but are permanently established by the Creator, is beyond me.

[marsh2]

“Convention” was an ancient term in English history, dating back at least to early medieval times. It was a special extraordinary assembly of the barons, clergy and/or the people called outside of the established Crown institutions. The 1688 Convention placing William and Mary on the throne was used as a precedent for the legitimate use of conventions when society was thrown back into a “state of nature” during revolution. The convention became incorporated into our various constitutions as an institutionalization of original consent.

(Reference: Gordon S. Wood, The Creation of the American Republic 1776-1787, W.W. Norton & Co., c1969.)

At the independence of the states, it was common for the existing assembly to form its own constitutional convention to devise and amend its own constitution. In Virginia, Thomas Jefferson raised an outcry against the existing assembly’s right to frame a constitution without a new election.

Following the May 15, resolution of the Continental Congress, a group of Pennsylvanian’s drew up a Protest to the Pennsylvania Assembly renouncing “the authority and qualifications of this House from framing a new Government.” (at 335)

Declared the author of “The Genuine Principles of the Ancient Saxon, or English Constitution,” if the constitution were to be a “sett of fundamental rules by which even the supreme power of the state shall be governed,” it must “be formed by a convention of the delegates of the people, appointed for the express purpose.” Only then would it be unalterable, “in any respect by any power besides the power which first framed it.” Only a convention could make the People of Pennsylvania a “legal people.” (at 337)

James Burgh wrote in his “Political Disquisitions”:

“…the people ought to provide against their own annihilation. They ought to establish a regular and constitutional method of acting by and from themselves, without, or even in opposition to their representatives, if necessary.” (at 323)

John Adams had encapsulated the salient concept by stating that the people were the “Source of all Authority and Original of all Power.” The eventual solution to the problem of distinguishing the higher law from statutory law was the establishment of the constitutional convention. (at 329)

Jefferson observed in his “Notes on the State of Virginia”:

“…that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments.” (at 309)

The early state constitutions continually faced legal challenges and were bolstered by proclamations, special requirements for voting majorities, approval by successive legislative sessions and other devices to distinguish the constitution from a mere legislative act.

In 1778, the Massachusetts “General Court” or legislature decided not to convene a constitutional convention - drawing up its own constitution to be “made Public for the Inspection and Perusal of the Inhabitants, before Ratification thereof by the Assembly.”

Different townships declared their specific displeasure with the 1778 constitution by forming a constitutional convention in 1779. The Massachusetts constitution of 1780 was the final result, declaring itself to be “a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” (at 289)

Bostonian Thomas Dawes in an oration stated:

” We often read of the original contract, and of mankind, in the early ages, passing from a state of nature to immediate civilization... And yet, the people of Massachusetts have reduced to practice the wonderful theory.” The people had “convened in a state of nature, and, like the ideas of the patriarchs,” had actually drawn and signed “a glorious covenant.” (at 289)

Thomas Tudor Tucker in a 1784 pamphlet entitled “Conciliatory Hints, Attempting by a Fair State of Matters, to Remove Party Prejudice” wrote:

“The constitution should be an avowed act of the people at large. It should be the first and fundamental law of the State, and should prescribe the limits of delegated power. It should be declared to be paramount to the acts of the Legislature, and irrepealable and unalterable by any authority but the express consent of the majority of the citizens collected by such regular mode as may therein be provided.” (at 281)

The issue of State sovereignty and the integrity of the Union was answered by reference to the locus of sovereignty with the body of the people As stated by Chief Justice Marshall in M’Culloch v. Maryland (1819):

“...In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument not as emanating from the people but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.

“It would be difficult to sustain this proposition. ...The Convention which framed the Constitution was indeed elected by the state legislatures, but the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might “be submitted to a Convention of Delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.”

“This mode of proceeding was adopted; and by the Convention, by Congress, and by the state legislatures the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject-by assembling in convention.

“It is true, they assembled in their several states; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.

“From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is ordained and established in the name of the people; and is declared to be ordained in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity. The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people.

“But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the state sovereignties.

“It has been said that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted had it been created by the states

“The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent. But when, in order to form a more perfect union, it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all.

“The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them and are to be exercised directly on them, and for their benefit.”

[KrisKrinkle]

“…I'm looking for feedback and criticism (as well a comments in general) in order to better express these ideas.”

Ok, you asked for it.  I did some editing of your piece, striking out some things and making additions/changes in blue, if that works out.

To paraphrase the author Harlan Ellison on editors:  “They take your baby, rip an arm off, re-attach it in the middle of the chest, and hand it back to you while telling you it’s a better baby.”

I hope I have not done that.  My intent was to help you with your piece, not to take your work and turn it into mine. 

________________________________

Do We the People really establish our government or is the government 'self-establishing'?   Do We the People really extend the Federal Government beyond its original limits as established by We the People or is it self-extending?

Let me explain the basis for the question.

The 10th Amendment is an interesting article because of more than just the fact that it advances the idea of delegated powers. Certainly it reserves any powers not so delegated to the several States — excepting those few expressly forbidden to the States in the federal Constitution. Most of the time when people talk about the 10th Amendment this is as far as it goes where their presented logics are concerned and they essentially fail to address the full aspect of the article: that powers are reserved to the people too.

I have neglected this aspect of the article in the past; however, there comes a time when you get tired of presenting the same old 'States Rights' arguments ad infinitum. At such a time I finally looked to this often neglected aspect of the text and found something ... important.

Something that raises the question of how governments are established among men. (I’d strike that sentence because I don’t really see that it is raised.)

Consider for a moment what it means to say that powers are reserved to the people in a document that delegates powers to a Government.

Clearly, in light of Article 5, these powers would be those that the people have not yet incorporated — or delegated — to the federal government. The idea of unincorporated powers strikes at goes to the very heart of the origin of governing authority in the United States.

I should point out that the Framers were very comfortable with the idea of unalienable rights established in natural law by a Creator God — no matter if they were among those infamously hostile to Scriptural Christianity or else equally partisans of the Gospels. As such, and in keeping with the idea advanced inherent in the Declaration of Independence that the legislative power may at times even revert to the people when it is sorely neglected or abused, we can see how the insistence that powers are indeed reserved to the people was hardly a new idea.

Simply, an unincorporated power is that which the people have not lawfully delegated to a government according to proper procedures as set forth in Law.   Simply, an unincorporated power is a power of We the People which we have not delegated to the Federal Government.

This is why the 10th Amendment, though generally the logical grammar in accordance with the style of composition for the whole of the Constitution to which it was amended, would have likely appeared in Article 5 had it been there at the beginning (i.e. it speaks to the source of any powers that future amendments may delegate to the federal).

Yet the 10th and its reservation of powers to the people also has relevance to the several States for it also speaks to the Framer's expectations concerning how the States too came by their powers. So the formula should be seen as a general principals in underlying American governance:  

Tthat the people retain all powers they do not lawfully delegate to some government.

Also, that the act of delegating a power to one government, say the federal for national defense or else to a State for local law enforcement, says nothing about if whether such grants of power are general to all applicable governments (under the 10th Amendment they expressly are not. Powers not delegated to the federal are retained by others besides it).

So when it is said that We the Ppeople established their Federal Ggovernment it means exactly this: they We the People delegated Powers to the Government it through some set procedure that is deemed lawful and otherwise retained all unincorporated powers to themselves and the any future delegation of any retained unincorporated power must also be through set procedure to be deemed lawful.

Here I will turn to the words of Chief Justice John Marshall from Marbury v Madison for further clarification of this principal:

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.

The clarification I sought was this: the anticipation that the establishment of a Government was in and of itself a permanent gesture that affects not merely the current generation but also all future generations.

Also, as an aside, I'm somewhat convinced that this view of the permanence of governments lay behind some of the hostility between Jefferson and Marshall over the matter. Jefferson clearly expected that frequent turmoils would reshape the government as it had done (rather than wait on amendments) while Marshall was explicit in holding the federal's feet to the fire when it came to respecting the authority that established it ... and incidentally helping to avoid the tyrannies that would enjoin future domestic unrest so long as it did. You could hardy have two more different views on the matter than these.

This is why it is important that we have an amendment process for it is by this means that we may further delegate powers to the Ffederal Government (or even potentially remove them, returning them to the body of unincorporated powers retained by the people). In essence, those who amend the Constitution themselves become Framers of same with respect to what they have authored, debated and accepted. In turn their adjustments are "designed to be permanent" too.

So we arrive at the Framer's sense of how our government was established: that the people have delegated Power to a Government for the benefit of themselves and their posterity and they have retained all powers not so delegated to themselves — unincorporated.

This is the proper sense that We the People have established our Government with a view of those ends as set forth in the Preamble to the Constitution.

Now comes the rub, and please bear with me as I again turn to Marbury:

To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

Consider the highlighted text in light of this essay.

What is happening when the legislature enacts some law for which it has no delegated authority?

It is assuming to incorporate a power that remains, as per the 10th Amendment reserved to the people.

Can the Congress lawfully do this anyway? Is it not an elected body representing the people?

If a legislature, or an administrator or a jurist for that matter, can claim by right of representation as a representative of the people, the ability to further delegate powers on account of statutes but so delegate not according to the proscribed method (i.e. an amendment process) then the people have not even had the opportunity to vote on the matter.

Remember, a representative is there to represent the people and not to assume powers expressly left in their hands. When there is an amendment process, when there are the great debates across the nation on what kind of a Republic we will be, THEN the people have their vote on fundamental Law. They do not vote for alteration of fundamental Law when they merely vote for a representative tasked with carrying out delegated powers actually possessed by the Ffederal Government at the time.

Or even possessed by a State when dealing with electing a State representative.

So when a the Federal Ggovernment takes upon itself to alter its powers it is in fact a self-establishing extending entity though it was not established as such.  

Thus we see the truth behind what Chief Justice Marshall wrote: "if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable."

The illimitable power is precisely the power of any government that is self-establishing  extending and which has no need of some extraordinary procedure such as an amendment process.

Under such a government it is impossible that any powers at all are ever reserved to the people, they do not establish their governments, for whatever powers may seem to be theirs are merely those that their government has yet to assume on their behalf.

So you may see by now why I'm starting to believe that this often neglected aspect of the 10th Amendment may be, in fact, the most important aspect of all.

Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how We the People have also established these State governments too — so that we will not merely trade one master, one great tyrant, for many.

 

[KrisKrinkle]

Sorry, the “blue” part didn’t work out. I don’t know why.