CHAPTER IX.
The same Subject continued.—The Tenth Amendment.—Fallacies exposed.—"Constitution," "Government," and "People" distinguished from each other.—Theories refuted by Facts.—Characteristics of Sovereignty.—Sovereignty identified.—Never thrown away.
If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the respective States, when they organized the Federal Union, it would have been removed by the adoption of the tenth amendment to the Constitution, which was not only one of the amendments proposed by various States when ratifying that instrument, but the particular one in which they substantially agreed, and upon which they most urgently insisted. Indeed, it is quite certain that the Constitution would never have received the assent and ratification of Massachusetts, New Hampshire, New York, North Carolina, and perhaps other States, but for a well-grounded assurance that the substance of this amendment would be adopted as soon as the requisite formalities could be complied with. That amendment is in these words:
"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."
The full meaning of this article may not be as clear to us as it was to the men of that period, on account of the confusion of ideas by which the term "people"—plain enough to them—has since been obscured, and also the ambiguity attendant upon the use of the little conjunction or, which has been said to be the most equivocal word in our language, and for that reason has been excluded from indictments in the English courts. The true intent and meaning of the provision, however, may be ascertained from an examination and comparison of the terms in which it was expressed by the various States which proposed it, and whose ideas it was intended to embody.
Massachusetts and New Hampshire, in their ordinances of ratification, expressing the opinion "that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth [State (New Hampshire)], and more effectually guard against an undue administration of the Federal Government," each recommended several such amendments, putting this at the head in the following form:
"That it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."
Of course, those stanch republican communities meant the people of the States—not their governments, as something distinct from their people.
New York expressed herself as follows:
"That the powers of government may be reassumed by the people whenever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution."