The Tenth Amendment’s Original Intent

You might recall that back in December I talked about the lawsuit Texas filed in federal court to try to stop the certification of the Electoral College results.

They built their case around the “Electors Clause” of the Constitution, meaning that the Constitution explicitly states that the Electors are to be chosen by the legislatures of the States. Article I, Section 4 also declares that the legislatures of the States have the responsibility of regulating the elections for members of the United States House and Senate.

I called it a “bad lawsuit” back then. Texas had no standing to sue. Some people didn’t want to hear it, but I also mentioned that if this case originated in the State of Pennsylvania, that might be different.

Pennsylvania did sue, but this week, the Supreme Court decided the lawsuit was “moot” because it would not change the outcome of the election and declined to hear the case by a 6-3 margin.

Conservatives cried “betrayal” because three “conservative” Justices voted with the three left-wingers on the bench.

Clarence Thomas let them have it in a widely discussed dissenting opinion.

He correctly pointed out that mail-in balloting leads to election fraud and that people need to trust the future of American elections. Mail-in balloting erodes that trust.

But he may have overstated part of his position. This case was not a slam dunk issue of “originalism.” In fact, you could argue that Thomas was holding a “textualist” rather than an “originalist” position.

A cursory reading of Article I, Section 4 lends to the idea that the Court should have taken the case, after all, the Pennsylvania Supreme Court unilaterally decided to extend the deadline for mail in ballots in the State. The legislature did not authorize this move and thus this appears to violate the Constitution.

But Pennsylvania held the election, someone won, and thus the State upheld its role of holding a federal election. The real fear from the founding generation was that States would not hold elections in order to bring down the general government. In that case, the Congress would intervene and set the rules for the delinquent State.

How do I know this? Because they said it many times during the ratification process.

Which brings us to Massachusetts in 1788.

The Constitution faced considerable opposition in Massachusetts led in part by John Hancock and Samuel Adams. Neither trusted that the document protected the States from being destroyed by a more powerful central authority.

Hancock offered a series of amendments in the final days of the ratifying convention designed to soften opposition.

On February 1, 1788, Sam Adams stood and explained why he admired a few of these amendments and focused much of his attention on two.

The first directly addressed, you guessed it, Article I, Section 4. Hancock wanted to ensure that the federal government would not interfere in any election, so he offered an amendment that read: “That Congress do not exercise the powers vested in them by the 4th section of the 1st article, but in cases where a state shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress, agreeably to the Constitution.”

Notice he didn’t talk about the presidency and he didn’t expressly mention the legislatures of the States. He simply wanted to ensure that the general government did not step in and regulate elections in any State. In other words, going to the federal government to handle this issue is like asking the Mafia to settle a score with your rival. You will owe them. No one in the founding generation wanted that.

At the same time, Adams opened his discussion by focusing on the most important amendment to come from every State in the ratification process. Hancock listed it first, as did most States, but it became the Tenth Amendment.

Hancock’s amendment read: “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.”

Adams said that this amendment carried the same meaning as Article II in the Articles of Confederation, namely: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

So to Hancock and Adams, their “Tenth Amendment” guaranteed that the new general government would be a federal republic of “sovereign and independent” States and that the powers of the general government were “expressly delegated” and limited.

You can’t get much more clear than this.

I discuss the Thomas dissent in Episode 407 of The Brion McClanahan Show.

You can watch it here, listen to it here, and download it here.

I discuss the original intent of the Tenth Amendment in Episode 408 of The Brion McClanahan Show.

You can watch it here, listen to it here, and download it here.

Which brings me to my final point. Episode 408 is a preview for the kind of material you get in my latest course at McClanahan Academy, The Originalist Papers, Volume 1. I still have that on sale for $109. I will cover the Massachusetts Ratifying Convention in Volume 2, out in April, but this deal expires at 11:55 PM on February 28th. Get it while you can.

Have you picked up my latest book, Southern Scribblings? It’s sixty essays in defense of the Southern tradition, and it’s awesome.

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