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The 10th Amendment, The States And The People Part 2

Updated on April 29, 2012

The Coming Storm

Class will now please come to order. Please rise, place your right hand over your heart as we recite the Pledge of Allegiance. Do they still do these things in our public schools? Maybe a teacher or two can tell us the answer and if not, explain why not. If you missed Part 1 of this series, you may want to go to my profile page and take a read as it lays the base for the rest of our discussions concerning the 10th Amendment The sheer volume of information at one's disposal boggles my mind as I begin to write again.

I know I scared some folks in the last session with the threat of a pop quiz. But this is splendid as all the seats in the classroom are occupied. Put your hand down, Little Johnny, the quiz is at the bottom of this Hub!

As the nation began to gel after becoming The United States of America, any real controversy concerning the 10th Amendment was minor until the advent of The Civil War. During the first half of the nineteenth century the federal government started pressuring the southern states, through various forms of legislation, concerning the issue of slavery. The underlying issue was economic in nature though that may be denied by some. The southern states, primarily agrarian in nature, were using slaves as indentured servants and a rather cheap source of labor. The northern states, where the nation's industrial base was populated, wanted to force the 11 southern states to either limit, or abandon totally, the practice.

Those eleven (11) eventually had enough of the powers in Washington DC trying to force their will upon them, a clear violation in their eyes of the 10th Amendment, and formally seceded from the union and formed their own Confederacy. This is not intended to be a re-fight of The Civil War, or who was right or wrong, but rather what resulted from having to fight that war and its effects on the 10th Amendment. The issue at the time was centered around slavery but the real issue was states' sovereignty - the right of local governments to enact laws and conduct the business of the people in their own respective states. It was also a war that established the supremacy of the federal government over the individual states regarding the dissolution of our nation.

The effect of the Civil War on the 10th Amendment altered the course of history, as wars are prone to do. It resulted in a de facto suspension of the 10th Amendment during the Reconstruction Era. Federal troops occupied all of the southern states, and the Civil War Amendments were required to be ratified by those states that had seceded,. Those amendments encompassed the abolition of slavery, gave voting rights to what we now know as African Americans and granted equal status to all races. Reconstruction, in effect, allowed the federal government to run many of the local matters formerly enjoyed by the southern states. What occurred during that period is not at all a model for democracy but believed to be necessary under the circumstances.

It took until 1883 for the 10th Amendment to start to reassert itself into being relevant. The invalidation by the US Supreme Court of The Civil Rights Act of 1875 was step one. That act served to criminalize racial discrimination in public accommodations. The SCOTUS of the time determined that the federal government had overstepped its bounds between it and the individual states. It violated a state's sovereignty in violation of the 10th Amendment. A further case in 1909, the White Slave Trade Act, was struck down by the Supreme Court as a violation of the 10th Amendment. That act prohibited the harboring of alien women with the intent of prostitution and again it was ruled that the federal authority had stepped outside its purview.

In 1918, the Supreme Court was again called upon to enforce the 10th Amendment. This involved the Keating-Owen Child Labor Act which prohibited the shipment of products between the states manufactured by children under the age of 14. The question of the constitutionality centered on whether the law violated the Commerce Clause, the 10th Amendment or the 5th Amendment. Maybe all of them? Precedent was being established along the way as these cases were decided over the years and judicial precedent is a cornerstone of our legal system. The court struck down that law using the following rationale.

Justice Day, speaking for the majority, cited two grounds for overturning the law. It ruled that under the commerce clause, production was not commerce. Congress had no constitutional authority to regulate a production process, That power was reserved to the states under the 10th Amendment. The majority opined that "the powers not expressly delegated to the national government are reserved to the states and to the people," basically what the 10th Amendment states. But there is a distinct difference in the wording. Justice Day inserted the word "expressly" into the statement. That altered the intent of the framers of the US Constitution. Why? The the framer's intentionally left the word "expressly" out foreseeing that they couldn't possibly address every power that would be needed in the future to run the government. The framers were indeed wise men who realized that over the course of history society would change with the times. In effect, that court altered the wording, ever so slightly, of the Constitution. But it reaffirmed that the states had those powers not reserved to the federal government and they had the authority to govern local matters.

Things went tootling along with Congress probably paying more attention to the US Constitution as they penned legislation until The Great Depression struck our economic well being. That event again caused the 10th Amendment to be turned upside down. The events surrounding its further erosion under the FDR administration will be the subject of our next refresher in this non-sanitized recount of American history. Bear in mind that as we go along, we will actually arrive at our destination point of "today" and the movement that is on by the individual states to reassert their rights under the 10th Amendment of the US Constitution.

I believe it is important to keep in mind that the individual states created the federal government and not the other way around. The tail should never wag the dog so to speak.

CYA next time. Class dismissed. God bless America and you and yours until we meet again

The Frog Prince


Pop Quiz Time

How many times is the word "democracy" used in the US Constitution?

See results

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    • My Esoteric profile image

      My Esoteric 4 years ago from Keystone Heights, FL

      I rated this one only Interesting, @FrThe majority opined that "the powers not expressly delegated to the national government are reserved to the states and to the people," basically what the 10th Amendment states.og, for I think your emphasis on a few things are off. You correctly noticed the word "expressly", some say "explicitly", in the 10th Amendment. You say SCOTUS made a "slight" change in the wording and then skipped on by it. If fact, this was a sea change in working and in direct conflict with the intent of the Framers of the Constitution; James Madison fought hard to make sure that precise word was left out of the 10th Amendment although anti-federalists tried to insert it and turn the Constitution into another Articles of Confederation.

      You also compared "slavery" which Washington and Jefferson, among others ended up detesting, to indentured citizens; there is a world of difference in that indentured servants sold their services for a period of time for passage to the colonies. Slaves were kidnapped, tortured, imprisoned, and held in involuntary captivity.

      You also didn't mention that SCOTUS was a very Conservative Court intent on undoing all the advances in human rights and decency the 13th - 15th Amendments tried to address.

    • profile image

      Stu From VT 6 years ago

      OK, looking forward to it Froggy!! Welcome back to cyberworld! Stu

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      Stu - I have a draft of Part 3 which is taking a bit of work but will post it shortly.

    • profile image

      Stu From VT 6 years ago

      Ruff!!

    • RealHousewife profile image

      Kelly Umphenour 6 years ago from St. Louis, MO

      You are such a smart dog Stu!

    • profile image

      Stu From VT 6 years ago

      dahoglund,

      Actually Tenth Amendment breaking by the feds can be traced back to 1890, but FDR stands out so much because he violated it so flagrantly. And we've been on a gallup ever since.

      Stu

    • dahoglund profile image

      Don A. Hoglund 6 years ago from Wisconsin Rapids

      It seems like my lifetime marks the deterioration of the rule of the constitution. That is from the mid thirties on.FDR was not able to circumvent it as much as he wanted but he tried.I'm depressed by politicians who don't even make a pretense of loyalty to the constitution any more.

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      RHW - I just added a video to this Hub. Check it out and use your imagination!

      https://hubpages.com/politics/The-Gang-Of-Six-Who-...

    • RealHousewife profile image

      Kelly Umphenour 6 years ago from St. Louis, MO

      No I just didn't want to make an a@@ out of myself, I'm learning! Following along too!

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      RHW - I got a bit worried about you Princess RHW. You disappeared on us. Maybe went to recess huh? LMAO

    • RealHousewife profile image

      Kelly Umphenour 6 years ago from St. Louis, MO

      See, here I am Frog - listening and learning from the masters!

    • tom hellert profile image

      tom hellert 6 years ago from home

      Froggie/WB,

      Keep on preachung the truth.Brothers

      TH

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      Wayne - Thanks I will. My next class is taking some serious reading and research as we will be entering the "progressive" era of American history. Like you, I'm all about states' rights.

    • Wayne Brown profile image

      Wayne Brown 6 years ago from Texas

      Excellent work, Frog! Many of my own hubs have made this exact point that so much of what is argued today are issues of States Rights. Keep holding those classes!

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      Ms Dee - Doing much reading and research for the next installment where we start bringing the =isms into play. Thanks for your support. I appreciate people who like to learn along life's pathway.

    • Ms Dee profile image

      Deidre Shelden 6 years ago from Texas, USA

      Great overview! I really value looking at the historical context behind present day issues, so appreciate your series. It is interesting to me to see that it was in 1883, *before* the rise of communism--which was then taken over by progressivism--that the SCOTUS ruled for the states rights of the 10th ammendment. Then...came those other -isms. Sure is a balancing act between federal and state powers! Look forward to your next installment.

    • tom hellert profile image

      tom hellert 6 years ago from home

      froggy,

      LMAO @ b malin.. awesome..

      keep on froggin

      TH

    • b. Malin profile image

      b. Malin 6 years ago

      I liked it Froggy, I REALLY LIKED IT. Good Hub, and Everyone is truly involved in your Hub... With their own Opinions...UNLIKE our Current Administration, which is just OUT THERE!

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      Gus and Tom - Thanks for your input.

      Gus, anymore when their lips start moving I have to mute out the rhetoric because that all it has become.

      Tom - The whole HC debacle is once again an attempt to be everything to everybody. It just doesn't work and never has.

      I just issued the grades for a different class that I observed last week, Thought you might want to take a look at how stern I can be on the grading scale. LOL

      https://hubpages.com/politics/The-Real-Losers

    • tom hellert profile image

      tom hellert 6 years ago from home

      FROGGY,

      Ammendment X-

      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.

      i really can't see how others- missconstrue those words to mean- If the constitution does not prevent it or say you can do it- then the individual states get to say so- Pushing this nandate is like saying you have to buy chimney sweep cleaning service- if you dont have a need for it why should you buy it- if you dont buy it you take on an additional risk its different from buying house insurance because you borrowed a boat load of cash from a bank- once you pay the$$ back you dont have to get insurance - its not advisable but you dont have to buy it

      TH

    • GusTheRedneck profile image

      Gustave Kilthau 6 years ago from USA

      Froggie - A good history read here. Mark me down as being a real progressive; that is, I don't believe a thing any (ANY) of the rascals are saying once their jaws get to moving up and down.

      Gus :-)))

    • profile image

      Stu From VT 6 years ago

      FP,

      "The move, and the period you cite, is in actuality when the progressive movement started to take roots in this country."

      This is not surprising. The progressive movement depends on federal powers that are far vaster than the pre 1890 condition. The beginning of serial violation of enumerated powers by the federal government created the vital foundation for progressivism to take root and grow. Now it's like a weed choking the whole garden.

      Now class, I want everyone to say NULLIFY.

      Stu

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      junko - Please don'r refrain from any discussions because I have very thick frog skin. As this series progresses, I have done an enormous amount of reading and research myself so as to maintain the historical perspective required in the presentation of events.

      I encourage extra reading by anyone so they too can gain the insight that I am gaining. Some of this too I have "speck and dumped" at test time in school. Now I have the leisure of taking a much better read.

    • profile image

      junko 6 years ago

      I remember reading something about the Federalist paper a long time ago in school. I know I passed the test on those historical documents, but I haven't been asked a question about them since until you asked me about the federalist papers. I'm liberal and left of center and my writing reflect my left leaning, It does take all kind of people to make a world. I don't mean any disrespect, frog, I respect you and your writing. I'm not alone in my ignorance of historical documents, your intentions are noble and good I believe, I'm just expressing my opinion, I have no desire to disrupt or to be a critic, so I will keep my opinions to myself until I reread related history.

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      junko - I am writing about known history, not speculation or a right wing anything. If one studies history and the controversy over the inclusion, or exclusion, of specific enumerated states rights, one can see exactly what the framer's intent was.

      I don't know if you've ever read The Federalist papers but if not, you should. There is a wealth of historical data to back up what is said here. I'm not rewriting history, spinning it or speculating. It's all right there for your reading pleasure.

      Historians generally agree that his inclusion of the word "expressly" did in fact slightly alter the wording found in the 10th Amendment. It isn't there, wasn't there and won't be there when you read it. Whether that was intentional on Justice Day's part I haven't a clue. You'd have to ask him. So what's your point?

      But you're right on two things. I am a conservative and I am right of center.

      The Frog

    • profile image

      Stu From VT 6 years ago

      Junko,

      I think framer intent for the Tenth Amendment is consistent with its textual rendering. Justice Day's use of the work "expressly" did no disservice to the intended meaning of the Tenth Amendment; it merely was utlized for emphasis to convey the point that any power not within Constitution inuring to the federal government automatically flows to the states and the people. Far from hyperbole, this emphasis was to drive home the point that the Tenth Amendment should be obeyed, without regard to desired "end result."

      Stu

    • junko profile image

      junko 6 years ago

      Frog, Your Tea Party association is shining through. " non-sanitized recount of American History", not non- sanitized, but conservative and right leaning, that O'k because you are conservative and right leaning. Just like the Bible the Constitution can be quoted in part, mixed with a lot of hyperbole and used to misguide I believe Justice Day inserted the word expressly for interpitation of the justice own statement not to altar anything written in the tenth amendment. We can only guess the framers intent. We sorta had this same discussion on my hub yesterday I see where you're headed.

    • profile image

      Stu From VT 6 years ago

      T4HOTA,

      In all reality, just what you are saying is what really occured. The HC Act usurps state and individual powers, because the Constitution grants the federal government no enumerated power to either regulate insurance or force a citizen to buy a good or service. Further, the HC Act was passed in violation of Senate rules. Normally, the Senate can filibuster unless and until 60% of the chamber votes to end it. An exception is made for budget resolutions, which only require a simple 50% vote for cloture (ending a filibuster). After Scott Brown won in MA, the Democrats only had 59 votes in the Senate. So HRH classified the HC Act as a budget resolution so any GOP filibuster in the Senate could be halted. But there are two problems:

      (1) The HC Act was NOT a budget resolution (balanced budget law, debt ceiling adjustment, etc.).

      (2) For the purposes of determining the cloture threshold, a budget resolution must originate in a House Committee (the HC Act originated in the Administration).

      Stu

    • profile image

      Stu From VT 6 years ago

      Alastar,

      That's great. VT is hitching itself to an anchor in Lake Champlain. :(

      Stu

    • The Frog Prince profile image
      Author

      The Frog Prince 6 years ago from Arlington, TX

      T4HOTA - I'm moving from the beginning of the birth of our nation to present time. Stay tuned because I can't cover all that ground at once.

    • T4HOTA profile image

      T4HOTA 6 years ago

      I wonder if the Obamacare fiasco will be added to this list of historical instances where the federal government sought to override the state governments.

      Another great and informative hub. Thank you, FP.

    • profile image

      alastar packer 6 years ago

      Excellent history Frog, learned something. Looks like Alabama's hitcin a star to Arizona. Hows that old song "The Bonnie Blue Flag" go. 'We are a band of brothers.....Thanks!

    • profile image

      Partisan Patriot 6 years ago

      Hey Froggy

      I got the question right also so I'll take an A+ also; on another note I knew it because we're a Republic not a pure Democracy!

    • The Frog Prince profile image
      Author

      The Frog Prince 6 years ago from Arlington, TX

      BPOP - Okay already, where's the beef. You sending that by hoof?

      RHW - Thta's a good thing. My understanding is that in some states it has been a "past" practice.

    • RealHousewife profile image

      Kelly Umphenour 6 years ago from St. Louis, MO

      Thank you for the course Frog:) oh - my kids do say the Pledge of Allegiance every day at school.

    • breakfastpop profile image

      breakfastpop 6 years ago

      Dear Frog,

      I'm sending breakfast over by special courier. Enjoy!

    • The Frog Prince profile image
      Author

      The Frog Prince 6 years ago from Arlington, TX

      Stu - The move, and the period you cite, is in actuality when the progressive movement started to take roots in this country.

    • profile image

      Stu From VT 6 years ago

      Hi Frog,

      I think alot of the seeming violations of enumerated powers during the Civil War and the civil rights period were really federal nullification activities of state violations against the Constitution (secession, discrimination, etc.).

      What worries me alot more is the federal violations of the Tenth Amendment that started to become serial starting about 1890. I'm no conspiracy junkie by any means, but I find the coincidence of the industrial revolution beginning around the same time to be too big to ignore. This is just conjecture, but the feds could see that automation of transportation, and the advent of electronic communications, would vastly increase interstate commerce. The Interstate Commerce Clause (ICC), which is very vaguely worded, appears to have had the original intent of preventing cartels in goods by contiguous states (i.e., it was an early form of antitrust law). Although textually, the ICC grants the federal government the power to regulate all commerce that is interstate, I don't believe that was the constructionist intent of the Article. I think the feds may have intentionally misconstrued the ICC as a backdoor way to usurp power from the states and people, seeing that so much of the economy would soon become interstate. The ICC was only cited twice in court cases prior to 1890, seeming to indicate that its scope was intended to be very narrow.

      Any opinions?

      Stu

    • The Frog Prince profile image
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      The Frog Prince 6 years ago from Arlington, TX

      That's an A+. Now I definitely know you don't have a liberal streak in you.

      I'm going to pass on the frog legs. I'm trying to build up an appetite for the 38K hobnob with the Oblabber clan. I'm still wondering how the chicken will be prepared.

      Dang it. I forgot you don;t serve breakfast on the weekend. I reckon the Waffle House will have to do.

    • breakfastpop profile image

      breakfastpop 6 years ago

      I enjoyed the class and I hope you enjoyed the present. I thought you might enjoy some sauteed frog's legs for lunch. Do I get an 'A" for knowing that the word "democracy" does not appear at all? I voted you up, useful and awesome!