The late Supreme Court Justice Antonin Scalia was known for his advocacy of the judicial philosophy of Originalism. Scalia would define “Originalism” in this way:
The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.
Many propopents of the Originalist philosophy have tried to use this philosophy to roll back many of the progressive court precedents of the past century that have strengthened the power of the federal government to try to redress various social problems. These same conservatives have championed the Tenth Amendment as an argument in favor of more state and local power and as a way to weaken the power of the federal government. A look, though, at the original debates of the Constitution at the 1787 Constitutional Convention shows that the convention attendees were looking for a means to create a stronger federal government than the weak federal government that had then existed under the Articles of Confederation. James Madison had a vigorous debate with South Carolina representative Thomas Tudor Tucker over the wording of the Tenth Amendment that would have far reaching implications on the power of the American federal government.
Richard Labunski wrote in his book James Madison and the Struggle for the Bill of Rights” a description of the debate between Madison and Tucker:
Tucker of South Carolina introduced a motion that showed how a single word inserted into an important section of the Constitution could have changed the nature of the document and the nation’s history. Tucker wanted to place the word ‘expressly’ in what would become the Tenth Amendment to confirm that the federal government was one of limited powers. His proposed language would have read ‘The powers not expressly delegated by this constitution…” The Tucker amendment would have greatly diminished congressional authority under the ‘necessary and proper’ clause, which had granted Congress substantial discretion to carry out the responsibilities assigned by the Constitution. It would become a major issue throughout the nation’s history- going to the heart of how a federal system should allocate power between the states and the central government- that has never been settled.
Madison vigorously objected, arguing that ‘it was impossible to confine a government to the exercise of express power (;) there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae.’ He told his colleagues that this subject had been raised, discussed, and rejected by the delegates at the Virginia ratifying convention. Tucker’s motion was defeated in the committee of the whole, but he would raise it again in the full House only to see it defeated on a recorded vote by a margin of 32 to 17.”
James Madison was one of the prime movers during the Constitutional Convention for creating a Constitution that bestowed greater power for the federal government. The debate between a strong federal government and a weak federal government led the country in a vigorous debate between the Federalists (those who supported the ratification of the Constitution) and the Anti-Federalists (those who opposed the Constitution). In order to get the Constitution passed, many compromises were agreed to between the Federalist and Anti-Federalist camps.
Ray Raphael wrote in his book Constitutional Myths: What We Get Wrong and How To Get It Right”:
In the First Federal Congress, when James Madison proposed constitutional amendments that would later evolve into the Bill of Rights (see chapter 7), he included a clear statement of the principle of enumerated powers: “The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively.” That statement, though, was not clear enough for South Carolina representative Thomas Tudor Tucker, who moved to insert the key word “expressly” before “delegated”. That would keep any so-called implied powers from ever sneaking in.
Madison opposed the explicit limitation. “It was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae.”…
Madison’s proposal, slightly modified, turned into 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.” Although some treat this provision as a definitive declaration of limited government, the Tenth Amendment was in fact a compromise. Federalists, although accepting the principle of enumerated powers, would have preferred to keep that principle implicit, while critics of the Constitution had wanted a stronger statement. Both sides bent, but both also won. This is not the way it has been used politically. For over two centuries, states’ rights advocates have treated the Tenth Amendment as if it did contain the word “expressly”, even though the amendment’s authors, Madison and the First Federal Congress, had made certain it would not. Purposely, the wiggle room remained. The government should not be too closely confined, Madison argued, and his view prevailed. “Powers by implication,” as he called them, should be allowed
Today, many conservatives use the Tenth Amendment to argue that the federal government has taken too much power and that more power must be delegated to the states and local government. These conservatives share the fear that the Anti-Federalists had of the concentration of power in the federal government and feel that states and local government are a protector against government tyranny.
Conservatives do have some legitimate fears about the potential oppressive power of federal government. But they fail to consider that state and local governments have to potential to abuse power and be oppressive. One only need to look at the history of African Americans in the South to see that state and local governments can also deprive American citizens of their civil liberties.
After the Civil War, Union soldiers occupied the southern states and the federal government passed laws to protect the civil liberties of the newly freed slaves. Before Lincoln died, he established the Freedmen’s Bureau to offer physical aid to war refugees and establish equitable labor agreements between blacks and their former masters. Radical Republicans like Senator Charles Sumner of Massachusetts and Congressman Thaddeus Stevens of Pennsylvania fought for bills that would help the freed slaves integrate into the American society and gain equal rights with their white citizens. The culmination of all this was the Civil Rights Bill of 1875 (which protected all Americans, regardless of race, in their access to public accommodations and facilities such as restaurants, theaters, trains and other public transportation, and protected the right to serve on juries.), the Fourteenth Amendment (which entitled all citizens equal protection under the law, allowed African Americans the power to make their own labor contracts and initiate lawsuits, and entrusted upon the federal government the power to protect equal rights and citizenship to all its citizens) and the Fifteenth Amendment (to insure that the right to vote was not denied to a person due to race or any previous condition of servitude).
After the Reconstruction period ended and federal troops left the South, Southern state and local government began to pass local Jim Crow laws to deprive African Americans of the rights that were guaranteed by the federal government. Vigilante groups harassed any African Americans who tried to exercise their rights, and the Supreme Court case Plessy vs. Ferguson in 1896 upheld the constitutionality of segregation under the “separate but equal” doctrine. Segregationists argued that Jim Crow laws were protected by the power of States Rights.
The people who fought for the civil rights of African Americans began to develop strategies to get the federal government to intervene in state and local affairs to protect the citizenship rights of African Americans that were guaranteed in the Fourteenth and Fifteenth Amendments. For African Americans and other minorities, the federal government was viewed as the protector of civil liberties, while state and local governments were viewed as the oppressors of liberty.
I disagree with the originalist philosophy of Antonin Scalia and the conservative interpretation of the Tenth Amendment. I do believe that the Constitution is a living document that has to evolve as this country’s understanding of freedom and equality expands and grows. The federal government has in certain points of history been an oppressive force, as during the Red Scare in the 1950s and the Nixon era in the 1970s. But it has also been an important protector of our civil liberties, fighting segregation in the South and protecting the rights of women, minorities and LGBT individuals.
Ray Raphael describes the insights of constitutional scholar Jack Balkin of the Yale Law School:
This problem stems from a misconception of what a constitution, at its best, is all about. The “whole purpose” of a constitution, Scalia writes, “is to prevent change- to embed certain rights in such a manner that future generations cannot readily take them away.”
Not so, Professor Balkin responds. Constitutions “are designed to create political institutions and to set up the basic elements of future political decision making. Their basic job is not to prevent future decision making but to enable it.” Out Constitution, Balkin says, “channels” and “Disciplines” us; it does not order us. Yes, we must stay within its bounds, but we are the ones to determine what those bounds will be and that determination has changed, and must change with time.
Whether or not preventing change is the whole purpose of some constitutions, it certainly was not the whole purpose of ours. From a historical point of view, if there was a single purpose to the Federal Convention, it was to create a vigorous and energetic government that would enable American citizens to enjoy the benefits of republican self-rule.
Scholars at James Madison’s Montpelier discuss James Madison’s thoughts on the 10th Amendment and its importance as an addition to the Bill of Rights