What Happened to the 10th Amendment?

What Biden and his handlers intend to do with federal power.

Frontpage Magazine is dedicated to the profound truth that inside every Progressive is a totalitarian screaming to get out. According to the Progressives, more government is the answer, always. For them, the constitutional limits on the power of government the founders had so carefully crafted are actually defects which must be eliminated. Their aim is total government; their strategy is to achieve total government step-by-step, progressively

Michael Finch, the President of the David Horowitz Freedom Center, has an excellent article over at the American Thinker making clear where the Progressives are in their fight against the Constitution. He identifies what the Biden administration intends to accomplish—nothing less than completing the project of centralizing power in the federal government begun by the Progressives over a century ago. Finch very correctly observes that “the 10th Amendment, with its clear limitations on federal power, has been seriously eroded over the past century,” and that Biden and his handlers intend to put an end to the remaining limitations on federal power.

The Progressives certainly have gotten away with trampling on the 10th Amendment for more than a century, but that raises this question: how did they manage to get away with doing that? 

The answer is that the Progressives tricked Americans into repealing the 10th Amendment without realizing that was what they were doing. It was very cleverly done, so cleverly that even today Americans by and large do not understand what happened. When in 1913 America approved the 17th Amendment, the amendment that provided for the direct election of senators, the 10th Amendment was doomed.

How can that be? After all, the 10th Amendment says nothing about the election of senators. The point of the all-important 10th Amendment is that the Founders created a federal government of strictly limited powers. Here it is in full:

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 10th says the powers of the federal government (here referred to as "the United States") are limited to the enumerated powers, the limited powers assigned it in the Constitution; the individual states (here referred to as "the States") retain all their powers not delegated to the federal government. But the important point for us to understand is that the Founders’ method for selecting senators was the key to keeping the powers of the federal government limited. 

In the Constitution and in the original American republic, senators were selected by the state legislatures. The wisdom of the Framers is nowhere more evident than in this feature of their constitutional design. This was the central pillar of that design. It secured the 10th Amendment by the power of the Senate. As I wrote in my book about the founding entitled Common Sense Nation:

The Senate had been a barrier to the passage of federal laws infringing on the powers reserved to state governments, but the Senate has abandoned that responsibility under the incentives of the new system of election. Because the states no longer have a powerful standing body representing their interests within the federal government, the power of the federal government has rapidly grown at the expense of the states.

Before the 17th Amendment, the state legislatures controlled the upper chamber of Congress. There was no way the federal government was going to usurp the power of the states. The 17th Amendment disempowered the states, and the 10th Amendment promptly began eroding away. 

The Framers' purpose was a regime of liberty that would endure. Their challenge was to find a way to prevent the federal government from becoming what it has become, to prevent the federal government from doing what it has done during the last century: take on more and more power and increasingly rule for the benefit of those who rule. The Framers’ brilliant solution was federalism. Lord Acton, the great historian of liberty, greatly admired their innovation:

Federalism: It is coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty.

Americans in 1913 were fooled by the Progressives because too many Americans no longer understood the Founders’ design for liberty. You have to give the Progressives credit. They did understand the Founders’ design, they picked their target brilliantly, and by selling the 17th Amendment as a reform, they won a great victory.

The federal government was originally designed to be limited government.  Madison wrote in The Federalist, "The powers delegated by the proposed Constitution to the federal government are few and defined."  The federal government was to take responsibility for America's relations with foreign states — in Madison's words, "war, peace, negotiation, and foreign commerce." The federal government was also to take responsibility for commerce among the American states to provide a nationwide free market that would make possible America's world-changing economic success. All other governmental powers were to be retained by the individual states that were joining to form the new nation, the United States of America. The idea is right there in the name.

According to the bargain the Founders proposed, the states gave up their power to make war and to negotiate treaties with other countries. The Founders' argument was that America would be safer and better represented in the world by a federal government than by many individual states operating independently and perhaps at cross purposes. Besides, the state governments would not be giving up control of those powers. They would retain control of them by means of the Senate. According to the founding bargain, senators would be chosen by the state legislatures — and the Senate would control the powers delegated to the federal government by the Constitution.  That is why the Constitution assigns to the Senate power over treaties, over the declaration of war, even over the people the president selects for the Cabinet offices.

In 1913, the American people, not realizing what they were doing, threw away the crowning jewel of the American Constitution. The 10th Amendment is no longer rooted in the power of the Senate, and you and I have lost an essential safeguard of American liberty the Founders intended for us to have.

If we are ever to have again a workable version of the Founders’ republic, we will need to repeal the 17th Amendment.  Repeal has been done before. The 18th Amendment, the Prohibition amendment, another bad idea from that same time, was repealed when Americans realized it was a mistake. We will also need to set to work dismantling the Progressive Leviathan. My suggestion is to start with the Department of Education. It was added to the list of unconstitutional departments very recently, in 1979 during the Carter years. I stand in awe of how much damage it has done to American education in such a short time. It is an amazing achievement. 

Recovery from the harm done by the 17th Amendment and federal agencies like the Department of Education won’t be a walk in the park. But the necessary changes could be made quite quickly. All that is required is for Americans to rediscover the Founders’ idea of America. Americans who understand and revere the Founders’ vision can be counted on to understand what needs to be done.

Robert Curry serves on the board of directors of the Claremont Institute and is the author of Common Sense Nation: Unlocking the Forgotten Power of the American Idea and Reclaiming Common Sense: Finding Truth in a Post-Truth World. Both are from Encounter Books.

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