- The act of usurping, especially the wrongful seizure of royal sovereignty.
- A wrongful seizure or exercise of authority or privilege belonging to another; an encroachment
As readers of this web site are doubtless aware, the Tenth Amendment says,
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.
Often when people paraphrase the Tenth Amendment, they will say something like this, “The federal government is only allowed to do certain specific things which are listed in the Constitution. The federal government is not allowed to do anything which isn’t listed in the Constitution”.
This is true as far as it goes, but I’d like to draw attention to the words “are reserved” and ask you to think carefully about them. “The powers not delegated… are reserved to the States… or to the people”.
What do those words really mean? On December 14, 1791, the Constitution existed without the Bill of Rights. Then, on December 15, 1791, the Bill of Rights was ratified, including the Tenth Amendment. With that ratification, the People and the States established a set of powers, consisting of nearly all powers, and in effect, said, “As-of today, we claim authority for any power which we have not delegated to you”. Symbolically, this was the equivalent of planting a flag on a newly discovered piece of land. The states said, “We know about these powers, and they are ours; not yours.”
Do you see the distinction? It’s a matter of tense. We tend to think of the Tenth Amendment in the present tense (understandable, given that it’s written in the present tense), but in actuality, a reservation can only be made once, and once made, it is complete and permanent (unless relinquished). The Tenth Amendment reservation of powers was made on December 15, 1791 and the Tenth Amendment should now be applied in the past tense. The question we need to ask when evaluating the Tenth Amendment is, “Was this claimed power among the powers that were reserved for the States or for the People on December 15, 1791?”
In a recent Passing Thoughts blog post, I wrote,
The “living Constitution” necessarily encroaches on both the Ninth and Tenth Amendments. You can’t give the federal government new powers without carving them out of the reserved rights and powers. Hence, the idea of a “living Constitution” is prohibited by the Constitution itself. There is no theory of law that can change this fact.
This article is intended to elaborate on that thought. People who espouse the theory of the Living Constitution would have us think of the Tenth Amendment in the present tense, as protecting a constantly changing set of powers, delineated by their constantly changing definitions of the enumerated powers. For example, in describing the concept of a Living Constitution, Wikipedia says,
While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary. The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, “living” document.
In this view, a power that was protected by the Tenth Amendment a century ago might not be protected today due to changing needs and interpretations. Wikipedia itself mentions two objections to this theory. First, that there’s a perfectly good amendment procedure built into the Constitution, so no need to reinterpret the meanings of the words; and second that the idea of a Living Constitution is prone to abuse by unelected judges. In this article, we provide another objection. In my view, this third objection is logically incontrovertible.
Before December 15, 1791, the idea of a Living Constitution may have been a plausible theory of law (Although, personally, I don’t think so). However, on December 15, 1791, with the ratification of the Tenth Amendment and the reservation of powers, the idea was firmly prohibited. On that day, the States and the People planted their stakes in the ground, claiming ownership of all undelegated powers as they existed on that date.
As noted earlier, once a reservation is made, it’s complete and permanent, unless relinquished. The proponents of the Living Constitution would have us believe that the Supreme Court can relinquish reserved powers on behalf of the states. This is not only wrong, it’s dangerous. Any effort by a branch of the federal government to move a power from the States’ reserved powers into the federal government’s delegated powers through reinterpretation exactly meets the definition of usurpation posted in this article’s heading, “A wrongful seizure or exercise of authority or privilege belonging to another; an encroachment.” Only the states or the people can relinquish any part of the reservation that was made on December 15, 1791.
Kevin Gutzman noted in a recent facebook comment that,
“A ‘living constitution’ is a dead constitution, because it does not do the one and only thing a written constitution is supposed to do: provide parameters around the power of officials.”
As owners of the reserved powers, it is the responsibility of the States and the People to keep the Constitution alive by staying true to it. To do this, we must resist usurpation of all forms, including usurpation which is founded on the illogical and dangerous idea of the Living Constitution.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
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