Category: Tenth Amendment

A Common Agent Rather Than a King

Jefferson Davis mused in his magisterial Rise and Fall: “As time rolled on, the General Government gathering with both hands a mass of undelegated powers, reached that position which Mr. Jefferson had pointed out as an intolerable evil – the claim of a right to judge the extent of its own authority.”

A Common Agent Rather Than a King

“In July 1776, the Congress of the thirteen united colonies declared that “these united colonies are, and of right ought to be, free and independent States.” [England’s] denial of this asserted right and the attempted coercion made it manifest that a bond of union was necessary, for the common defense.

In November of the following year, 1777, the Articles of Confederation and perpetual union were entered into by the thirteen States under the style of “The United States of America.” Under the Articles, no amendment to them could be made except by unanimous consent, which hampered the efficient discharge of the functions entrusted to the Congress.

What is the Constitution of the United States?

The whole body of the instrument, the history of its formation and adoption, as well as the Tenth Amendment, added in an abundance of caution, clearly show it to be an instrument enumerating the powers delegated by the States to the Federal Government, their common agent. It is specifically declared that all which was not so delegated was reserved.

On this mass of reserved powers, those which the States declined to grant, the Federal Government was expressly forbidden to intrude. Of what value would this prohibition have been, if three-fourths of the States could, without the assent of a particular State, invade the domain which that State had reserved for its own exclusive use and control?

It [is, I hope], been satisfactorily demonstrated that the States were sovereigns before the formed the Union, and that they have never surrendered their sovereignty, but have only entrusted to their common agent certain functions of sovereignty to be used for their common welfare.”

(Rise and Fall of the Confederate Government, Volume I. Jefferson Davis. D. Appleton & Co., 1881, pp. 192; 195-196)

State’s Rights and Civil Rights

“States’ Rights are easy enough to define. The Tenth Amendment does it succinctly: “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 [of the States]”

Civil rights should be no harder. In fact, however – thanks to extravagant and shameless misuse by people who ought to know better – it is one of the most badly understood concepts in modern political usage.  Civil rights [are] frequently used synonymously with “human rights” – or with “natural rights.”

As often as not, it is simply a name for describing an activity that someone deems politically or socially desirable.  A sociologist writes a paper proposing to abolish some inequity, or a politician makes a speech about it – and, behold, a new “civil right” is born!  The Supreme Court has displayed the same creative powers.

A civil right is a right that is asserted and is therefore protected by some valid law. It may be asserted by the common law, or by local or federal statutes, or by the Constitution; but unless a right is incorporated in the law, it is not a civil right and is not enforceable by the instruments of the civil law.

There may be some rights – “natural,” “human,” or otherwise – that should also by civil rights.  But if we desire to give such rights the protection of the law, our recourse is to a legislature or to the amendment procedures of the Constitution.  We must not look to politicians, or sociologists – or the courts – to correct the deficiency.

[The] federal Constitution does not require the States to maintain racially mixed schools. Despite the recent holding of the Supreme Court, I am firmly convinced – not only that integrated schools are not required – but that the Constitution does not permit any interference whatsoever by the federal government in the field of education.

It may be wise or expedient for Negro children to attend the same schools as white children, but they do not have a civil right to do so which is protected by the federal Constitution, or which is enforceable by the federal government.  The intentions of the founding fathers in this matter are beyond any doubt: no powers regarding education were given to the federal government.”

(The Conscience of a Conservative, Barry Goldwater, Victor Publishing Company, 1960, pp. 31-34)

Andrew Jackson Provokes Civil War

Opponents of Andrew Jackson’s warlike threats after South Carolina’s fierce opposition to the protective tariff labeled it the “Force Bill” or the “Bloody Bill,” which authorized using military force to collect the government revenue. He warned that he would march to South Carolina with 200,000 men to quell any and all insurrection and should the Governor of Virginia attempt to prevent the passage of regiments bound for South Carolina, “I would arrest him at the head of his troops.”

Jackson awaited congressional sanction for his war upon a State; Lincoln’s actions were his own and taken while Congress was in recess.

Andrew Jackson Provokes Civil War

Senator John Tyler of Virginia called Charleston a “beleaguered city.” Suppose, he said, this bill were to pass and “the proud spirit of South Carolina” should refuse to submit. Would we then “make war upon her, hang her Governor . . . and reduce her to the condition of a conquered province?” Mr. Tyler saw South Carolina’s towns leveled, her daughters in mourning, her men driven “into the morasses where Francis Marion found refuge.” But he did not see them conquered. Rome had her Curtis, Sparta her Leonidas – and South Carolina had John C. Calhoun. Mr. Calhoun did not repudiate the heroic part. “I proclaim it,” said he, “that should this bill pass . . . it will be resisted at every hazard – even that of death.”

Oblivious to threat and to political entreaty, Andrew Jackson refused to give an inch. He insisted on the passage of the Force Bill. Henry Clay of Kentucky, a practiced dispenser of parliamentary miracles, could not uphold nullification and he would not uphold Jackson. Clay introduced a bill which in ten years would lower tariffs by twenty percent and South Carolina accepted peace from the hands of Mr. Clay rather than those of General Jackson.

But the late crisis had ended more tamely than Jackson had reckoned on. “I thought I would have to hang some of them & I would have done it.”

(The Life of Andrew Jackson. Chapter XXX, Marquis James. Bobbs Merrill Company, 1938, pg. 619-621)

 

A Posse and Grenades to Overawe South Carolina

On November 24, 1832, “the tariff acts were proclaimed void and not binding upon this State or its citizens,” after February 1, 1833. South Carolina Gov. Robert Y. Hayne declared the use of federal force in an attempt to collect duties after that date would be met by the State’s secession from the 1789 constitution. This would of course make South Carolina an independent country.

In reply to South Carolina’s decision not to comply with the increased and what it believed to be an unconstitutional tariff, Andrew Jackson threatened to fill that State with 100,000 troops raised from the other States, which he referred to as “a posse.” His vice-president later said that Jackson “yearned to lead this force in person.”

A Posse and Grenades to Overawe South Carolina

New York politician and Vice President Martin Van Buren politely disagreed with Jackson’s contention that the mere raising of troops by South Carolina, i.e., State militia, constituted actual treason. Even Jackson’s close political advisor regretted this wording in the President’s proclamation, which he saw as inviting trouble. This advisor saw that the root of the issue was a high protective tariff which went above and beyond a constitutional tariff to support the expenses of the federation’s government. The latter simply advised Jackson that “a gesture toward tariff reduction might pave the way to a happy solution of everything.”

“Mr. Van Buren’s anxieties arose chiefly from the fact that, like many others, he regarded the crisis through the spectacles of partizan politics . . . who feared a break with Southern leaders, notably those of Virginia. He feared the political aftermath of a break with them now, as Jackson had thrown such considerations to the winds, placing himself militantly at the head of union sentiment of the nation, irrespective of person or party.

This man of caution had raised two points which the man of action could not ignore:

The first concerned the definition of treason of actual treason and the constitutional right of the Executive to intervene in a State’s affairs. Legally he could do so only (1.) at the request of the Governor to suppress insurrection, or (2.) on his own initiative, to enforce the laws of Congress [if the State remained as a member of the federation].

Jackson dispatched seven revenue cutters and a ship of war to Charleston harbor, anchoring off the battery with their guns commanding the fashionable waterfront lined with the homes and brick walled gardens of the city’s elite.

“No State or States,” the President wrote Joel Poinsett, leader of the State’s unionists, “has a right to secede . . . Nullification therefore means insurrection and war; and other States have a right to put it down. I will . . . have the leaders arrested and arraigned for treason . . . in forty days I can have within the limits of South Carolina fifty-thousand men, and in forty more days more another fifty thousand.”

Poinsett, a veteran of the Mexican War and eager to suppress his fellow citizens desire for political independence, wrote Jackson on November 16, 1832: “Grenades and small rockets are excellent weapons in a street fight. I would like to have some of them.”

(The Life of Andrew Jackson. Chapter XXX, Marquis James. Bobbs Merrill Company, 1938, pg. 609; 615)

A Toast to Our Federal Union

Some twenty-nine years before Abraham Lincoln threatened a State with invasion, the militaristic President Andrew Jackson flatly denied that a State within the federation could challenge laws it considered unconstitutional. Jackson believed all States to be permanently under the 1789 constitution with no right to withdraw, which surprised Rhode Island, New York and Virginia as all three had explicitly reserved this in their ratifications. All other States considered the 10th Amendment as a clear warning to the federal agent.

Though Jackson was not the first military man elected president, his experience as a field commander with little if any civilian supervision gave him wide latitude in his decisions. His April 1818 capture and hanging of two British envoys in Florida brought him severe condemnation from Congress, which chose not to censure the popular general.

A Toast to Our Federal Union

“Toastmaster Roane introduced the President of the United States. Old Hickory stood, waiting for the cheers to subside. The President fixed his glance upon Vice President John C. Calhoun, toasting to, “Our Union: it must be Preserved.” He raised his glass, a signal that the toast was to be drunk standing.

Hayne rushed up to Jackson. Would the President consent to the insertion of one word in his toast before the text was given to the newspapers? What was the word? Asked Jackson. It was “Federal,” making the toast read, “our Federal Union.” Jackson agreed and, like many another historic epigram, the toast went forth amended to the world.

The Vice President arose slowly. “May we all remember that [the Union] can only be preserved by respecting the rights of the States and by distributing equally the benefits and burdens of the Union.”

(The Life of Andrew Jackson. Chapter XXX, Marquis James. Bobbs Merrill Company, 1938, pg. 539-540)

 

The Tenth Amendment

Christopher Gustav Memminger was born in 1803 in the Dukedom of Wurtemberg, the son of a Prince-Elector’s Foot Jaegers. His mother fled Napoleon’s ravaging of the German States after the death of her soldier-husband, finding refuge at Charleston, South Carolina. She then succumbed to fevers soon after their arrival and left him an orphan. The future American statesman was then admitted to Charleston’s Asylum for Orphans, entered South Carolina College at the age of 12, and graduated second in his class at age 16. Memminger passed the bar in 1825, became a successful lawyer, and served in the South Carolina Legislature from 1836 to 1860. From 1861 to 1864 he was a presidential cabinet member.

An esteemed Charleston lawyer by the 1840s, he was retained by a local synagogue to represent them in an internal quarrel, and did so very successfully and without a fee, that he received “an elegant and richly chased silver pitcher of the Rebecca pattern, nearly two feet in height, and a massive silver waiter, eighteen inches in diameter.”

This valuable memento, with other personal property, was plundered from his residence by invading soldiers of the Federal army. Notwithstanding its well-marked and unmistakable evidence of ownership, it is still held somewhere at the North as a “trophy,” or has been converted into bullion and sold by some remorseless thief.”

In opposing an offensive Massachusetts-originated House of Representatives resolution, in 1835, Mr. C. G. Memminger of South Carolina reminded his colleagues of the limitations the States placed upon the United States Constitution of 1789.

The Tenth Amendment

“The Union of these States was formed for the purpose, among other things, of ensuring domestic tranquility and providing for the common defense; and in consideration thereof, this State yielded the right to keep troops or ships of war in time of peace without the consent of Congress; but while thus consenting to be disarmed, she has, in no part of the constitutional compact, surrendered her right of internal and police; and, on the contrary thereof, has expressly reserved all powers not delegated to the United States, nor prohibited by it to the States.”

(Life and Times of C.G. Memminger, Henry D. Capers, A.M. Everett Waddey Co., Publishers 1893, pg. 190)

From Connecticut to Dred Scott

Well before the Dred Scott case of 1857 was the question brought before Connecticut Judge David Daggett, chief justice of the court of errors, in October 1833 raising the validity of a State law which “forbid any school, academy, or literary institution for the instruction of colored persons who are not inhabitants of this State.” The law was in place as the State’s colored schools tended to “greatly increase the colored population of the State and thereby to the injury of the people.” The defendant, a free Negro, insisted that the law was unconstitutional as it was in violation of the United States Constitution regarding the equal rights of citizens of all States.”

Regarding “citizens,” only the 1789 Constitution’s Article 4, sec. 2 states: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”  The Dred Scott case of 1857 rested upon this, and the question before the Court was simply whether Scott was a citizen of a State, as argued below.

To underscore the validity of the Constitution’s Article 4, sec. 2, the victorious Republican party was forced to follow the amendment route as it sought manipulation of the South’s black vote.

From Connecticut to Dred Scott

“Are slaves citizens? At the adoption of the Constitution of the United States [in 1789], every State was a slave State . . . We all know that slavery is recognized in that Constitution; it is the duty of this court to take that Constitution as it is, for we have sworn to support it . . . Then slaves were not considered citizens by the framers of the Constitution.

“Are free blacks citizens? . . . to my mind it would be a perversion of terms, and the well-known rules of construction, to say that slaves, free blacks or Indians were citizens, within the meaning of that term as used in the Constitution. God forbid that I should add to the degradation of this race of men; but I am bound, by my duty, to say that they are not citizens.”

In the case of Hobbs vs Fogg the State of Pennsylvania furnished another strong precedent for the decision of the [Dred] Scott case. At the election of 1835 a negro offered to vote. Solely on account of his color, the judges of election refused the privilege. The Negro insisted that “as a freeman and citizen of the State” the provisions contained in the State constitution and laws entitled him to the right of suffrage. The judges justified themselves on the ground “that a free Negro or mulatto is not a citizen within the meaning of the Constitution and law of the United States, and of the State of Pennsylvania, and, therefore, is not entitled to the right of suffrage . . .” The chief justice delivered the opinion, to which there was unanimous assent [to declare] “that no colored race was party to our social compact. Our ancestors settled the province as a community of white men; that the blacks were introduced into it as a race of slaves; whence an unconquerable prejudice of caste, which has come down to our day . . .” This is followed by “Yet it is proper to say that [Article 2, section 4] of the Federal Constitution, presents an obstacle to the political freedom of the Negro, which seems to be insuperable.”

Now then, in addition to the presumption that [those] of pure African blood whose ancestors had been American slaves, was presumed to have been born and to have continued a slave, these laws show that all the States had given to the Federal Constitution, from the days of its ratification down to the Dred Scott decision, a practical interpretation agreeing unanimously that a Negro, though free and a native of a State, was not a person as the word ‘citizen’ defines as that word was used by the framers of the Constitution.”

(The Legal and Historical Status of the Dred Scott Decision. Elbert William R. Ewing. Cobden Publishing Company, 1909, pp. 67-69)

 

Washington’s Confederate Republic

In the judgement of George Washington, the government of the US was in form and nature a “Confederated, or Federal Republic” and all States within were small republics themselves. Further, the federal agent of the States was not a “republic,” but only the assigned agent of these individual republics. Montesquieu affirmed that in a confederation, the States do not forfeit or part with their individual sovereignty. Philosopher and diplomat Emmerich de Vattel asserted as well that “several sovereign and independent States may unite themselves together by a perpetual Confederacy without ceasing to be, each individually, a perfect State, and together constitute a federation.

Abraham Lincoln ended this original intent of the Founders in 1861 with his war upon States wishing to voluntarily depart the 1789 agreement. Alexander H. Stephens wrote postwar that the 1861-1865 conflict was the result of Lincoln’s abuse of powers and forced national consolidation.

Washington’s Confederate Republic

“In the popular mind in the post-Revolution time, those representing the citizens of the States at large, each acting for themselves in their sovereign capacities.

“[The various] demonstrations, devices, mottoes and symbols, clearly showed how the great mass of people, in all the States, understood the new Constitution. It was nothing but a more perfect bond of union between the States. “Federal” was the watchword of the day in Boston, New York, Philadelphia, Baltimore, Richmond and Charleston. It was the grand symbolized idea throughout the whole length and breadth of the land. There can be no doubt that the people thought they were adopting a Federal Constitution – forming a federated union.

Now then, what is the meaning of this word “federal,” which entered so deeply into the thoughts, hearts and understandings of the people of that day?

Dr. Johnson, the highest authority of that day, in his Dictionary, thus defines the word: Federal – (Foedus, Lat.)  relating to a League or Contract. Federate, he defines (Federatus, Lat.) leagued, joined in a Confederacy. The great American lexicographer Noah Webster, says of this word “Federal,” that it is derived from the Latin word “Foedus” which means a League. A League he defines to be “an Alliance or Confederacy between Princes or States for their mutual aid or defense.” And in defining the meaning of the word “Federal,” he uses this language: “Consisting of a Compact between States or Nations; founded on alliance by contract of mutual agreement; as, a Federal Government, such as that of the United States.”

Federal, from its very origin and derivation, therefore, has no meaning and can have none, disassociated from a Compact or Agreement of some sort, and it is seldom ever used to qualify any Compacts or Agreements except those between States or Nations. So that Federal and Confederate mean substantially the same thing.

Washington, in one of his letters which I have just read, spoke of the new Government as “a Confederacy.” In another, to Sir Edward Newenham, dated the 20th of July, 1788, he speaks of the new Government then ratified by enough States to carry it into effect as a “Confederated Government.” In . . . 1789 he expressed his conviction that “his happiness . . . that “the Senate would at all times cooperate in every measure which may tend to promote the welfare of “this Confederated Republic.” These are the terms by which he characterized “the union” after the present Constitution was formed and after it was in operation. There is no difference between the words Federal and Confederated as thus used and applied. We see that Washington used them both, at different times, to signify the same thing, that is, the Union of the American States under the Constitution.”

(A Constitutional View of the Late War Between the States, Alexander H. Stephens. Sprinkle Publications, 1994 (Original: S.A. George, Printers, 1868), pp. 167-170)

No Other Course But Dishonor

Robert E. Lee gained his fundamental understanding of the US Constitution while at West Point, that the States were superior to their federal agent in Washington. It is important to note that the word “union” first appears in the “Articles of Confederation and Perpetual Union” (which 11 of the 13 States seceded from in 1787).  Two additional States seceded two years later. The 1789 Constitution’s text was prefaced with “We the people of the United States, in order to form a more perfect Union . . .” The 1861 Constitution of the Confederate States of America began: “We the People of the Confederate States, each acting in its sovereign and independent character, in order to form a permanent federal government . . .”

No Other Course but Dishonor

“Among Lee’s professors at West Point was the distinguished jurist William Rawle, a Pennsylvanian and author of A View of the Constitution of the United States of America (1829), a book that formed the basis of many of Rawle’s lectures. It is likely that cadet Lee became quite familiar with Rawle’s view that the Union was not a compact into which the States had entered irrevocably. Rawle wrote:

“It depends on [the State] itself whether it will continue a member of the Union. To deny this right would be inconsistent with the principle upon which all our political systems are founded, which is, that the people have in all cases the right to determine how they will be governed.”

The newly elected president, Abraham Lincoln, had offered Lee, still only a colonel in rank, command of his army, comprised at the time of some 100,000 men. Had he accepted this, the appointment would have been the pinnacle of his career – everything that he had worked toward for more than 35 years as an officer. But he could not take up arms against his native State and all the complexities of consanguinity that she represented.

“I did only what my duty demanded,” Lee said after the war. “I could have taken no other course without dishonor.” [The final act of his command [of the Army of Northern Virginia], an honorable surrender, was his greatest demonstration of forbearance.”

(Excerpted from Remembering Robert E. Lee, Jack Trotter. Chronicles Magazine, June 2022, pp. 19-20)

Clarifying 19th Century American History

Americans were certainly “Confederates” before the 1789 constitution was ratified as their governing document were the Articles of Confederation. When ratifying the new 1789 constitution, 11 States decided to “secede” from the Articles and voluntarily “accede” to the new federation; North Carolina and Rhode Island held out for the Bill of Rights before they acceded. In the latter document, Article III, Section 3 fixed treason as only waging war against “Them,” the States, or adhering to their enemies, giving them aid and comfort.” This does raise the question of who waged war against the States forming a more perfect union to the South Below, the author clarifies misconceptions regarding Lincoln’s war.

Clarifying 19th Century American History

“Certainly, there are those of goodwill, and let us call it “invincible ignorance, who have been educated to think the primary issue in 1861 was slavery, and Abraham Lincoln was simply reacting to those “rebels” who wished to destroy “the sacred bonds” of Union, while advancing the great humanitarian cause of “freedom.” So much for the caliber and character of our contemporary educational system, not to mention Hollywood’s ideological tendentious (and mostly successful) attempts to influence us. Yet, that mythology surrounding the Southern Iliad of 1861-1865 will not stand serious cross-examination. Consider these popular myths and shibboleths:

“The War was about slavery!” Not really accurate: the war aims cited repeatedly by Lincoln and northern publicists consistently during the years 1861-1863, even afterwards, were that the war was to “preserve the Union.” Indeed, if the abolition of slavery had been declared a war aim in 1861, most likely a great majority of Union political leaders, not to mention Union soldiers, would have recoiled, and the northern war effort would most likely have collapsed.  It was difficult enough to gain wide support in the north, as it was. Remember, Lincoln was elected with less than 40 percent of the vote in 1860, and barely gained pluralities in most northern States.

“Lincoln freed the slaves.” No so; Lincoln freed not one slave. His proclamation, issued first on September 22, 1862, and formally on January 1, 1863, supposedly “freeing the slaves,” only applied to those areas not under Union military control or occupation, that is, territory of the independent Southern States. Lincoln’s proclamation “freed” slaves where his action had no effect.

And most recently this charge: “Robert E. Lee and other Confederate military leaders who were in the US Army committed treason by violating their oaths to defend the Union, and Confederate leaders were in rebellion against the legitimately elected government of the United States.” Somehow, critics seem to forget to mention that Lee and the other Confederate leaders resigned their commissions in the US Army, and from Congress prior to enlisting in the defense of their home States and in the ranks of the Confederate States army, or assuming positions in the new Confederate government. They did not violate their oaths; their States had formally left the union, and, thus, the claims of the federal government in Washington had ceased to have authority over them.”

(The Land We Love: The South and Its Heritage. Boyd D. Cathey. Scuppernong Press, 2018, pp. 60-61)