Forgive me for the length of this post but I really think that the topic deserves an in depth discussion.
The 10th Amendment to the Constitution must be reexamined and reimagined if we wish to persist as a Democratic Republican nation concerned with Universal Individual and societal rights and decency.
When the Amendment was passed they were as a sop thrown to the Anti-Federalists and Southern Slaveholders who wanted to make sure that their “reserved” rights to hold human chattel as property were not abridged by a newly formed central government. This is an aspect of the “founding” that many people have forgotten or have chosen to forget: There was no universal agreement on what constituted a “right” or what authority should be central to the protection and proliferation of rights.
The Articles of Confederation proved to be an enormous and ill-conceived failure, at least as far as running a country and not a multi-national imperial conglomerate of independent nations. The myth that the founders created the Constitution in order to cement State authority is just that: a myth. Reading the Constitution, and more importantly the letters and the pamphlets of the people who wrote the thing, reveals a document that nothing if not an indictment of state privilege over national unity and democracy.
From the banning of state administered religious tests for office to the assertion that it is the central government elected directly by the people who should be responsible for taxation and the general welfare of the nation as a whole. The preamble mentions “We The People”, and not “We the States and the people residing therein”. Conservatives claim that the founders were near infallible in their logic and statecraft, but if that is the case we must also accept that the founders knew what they were doing when they said what they did in the preamble and wrote what they wrote about the authority of the central government over the states. Steven L. Tyler, Professor of Political Science at Troy University, said this about the supposed “fear” the founders had of a central government in his article “The Founders and The Central Government” [ http://www.outsidethebeltway.com/the-founders-and-the-central-government/ ]:
If, in fact, the founders feared a central government, why did they form one? The very purpose of the Philadelphia convention of 1787 that produced the Constitution of 1789 was to create a central government that could actually govern the United States. It was a purposive transfer of power from states to the central government.
This is the truth, especially considering the way the first 8 President’s ran the country: as moderate to extreme proponents of Central Government authority over the states. Their ideas and programs forged a United States that for the first 40 years of its existence was striving towards a more unified and cohesive nation, and no nation can exist as a conglomeration of semi-independent states. The very concept of some of our basic governmental systems shows us that the founders not only trusted Centralized authority but actively expanded and strengthened it. A Supreme Court to arbitrate disputes that cannot be solved at the state level, a three branch governmental system that explicitly does not include, let alone mention, state governments as part of the greater central authority, and a Bill of Rights that almost exclusively deals with issues that would have been decided on a state by state basis otherwise, therefor weakening the entire idea of National Republican Democracy. Even so called “Small-Government” minded politicians like Jefferson recognized that the states must be led from the center if the nation stood any chance of surviving as anything other than an international laughing stock. Taking action against the Barbary Pirates, the purchase of mass quantities of land by the federal government from the French, and the voyage of Lewis and Clark, these actions could not have ever been undertaken at a state level nor would the even have been likely to be proposed at all. For good or ill it must be acknowledged that if strong central authority was not exercised by the founding Presidents, the United States would not exist as an international force, or even as a Constitutional Republic in any more than a de jure sense.
Which brings me back to the Bill of Rights. It is obvious which Amendments prove to be the exception to the generally Republican and cohesive layout of basic individual and societal rights and liberties: The 9th and Tenth Amendments. It bears repeating that many of the delegates to the Constitutional Convention were Southern and/or Slave holders, and they saw it as an essential right to own and control their property, albeit human property. This was a genuine debate, and it certainly was not self-evident that slavery would not end up as an essential right. Of Course the 9th and 10th Amendments were not created just as a protection of slavery, but at the time the rights that people who hope to reserve often dealt with property or business concerns. And for much of the nation those two concerns could not be separated from slavery as an institution, and therefor as a right. Madison knew what he was doing when he introduced the 10th Amendment, but he did not know what sort of federalist monster he had unleashed upon future generations of an inevitably more populous and centralized nation.
The 9th Amendment is actually much less of a concern to me in particular. It deals with “the great residuum being the rights of the people”, as Madison put it, and not with particular concerns of state and local authority. It was more of a rhetorical admission that by enumerating rights the delegates were not eliminating the common law rights and privileges of a free people that necessarily exist within a civil society as envisioned within the context of The Social Contract. We must always remember that greatest movers and shakers of Constitutional law were Enlightenment Philosophers and theorists in the French philosophe tradition. This context does not lead one to see the founders as extreme reactionaries against central civil law. On the contrary, many of the founders and their supporters realized that there must be a central authority in order for rights as laid out in law to be possible and to be truly universal as a human political ideal. If in one state one possesses or lacks rights that one does or does not possess in the next state over, is that indeed a Republic or is it a corporation of regions who do not respect the primacy of enlightened human reason as a universal ethical construct? The Founders as a whole realized that there could be no guarantee of Rights and Liberties for individuals or for a society if the same rights and Liberties were extended to the same degree to the states. The Revolutionaries threw off a tyranny that did not represent their concerns or their rights. They were indeed fighting for the right to participate in a central government authority. They realized that no rights or privileges can be assured in isolation or in a piecemeal sense: there must be a central arbiter, and a central authority wherein the social contract can be executed, enforced, and yes, expanded. And clearly any questions about the superiority of central authority as protector of the general rights of all citizens over the whims of the states was settle definitively by the Union Army and the American People in the Civil War.
The 10th Amendment is an anachronism that no longer has a place in a strongly centralized and proactive government with progressive and strong protections of civil rights. It is a sad fact of history that authority is needed in order that the good of individuals and society can be maintained, but it is a fact. The 10th Amendment, which started as an admission that the debate over the existence of the USA as a concept was far from over, has now become a catch-all tool for those who would claim that the states have overriding authority over the general will of the people as a nation. What is the United States if it is not united in its protection and recognition of basic human rights? And what is a Constitution of it cannot evolve and expand and be reimagined in order for an expanding and ever evolving and imaginative nation to endure? The Supreme Court (whom Conservatives seem to respect only when, against the Court’s own convention, it rules in favor of the restriction of central authority as a way of protecting Universal Rights) has made its opinion on the matter clear. In United States Vs. Sprague the court states that the Tenth Amendment “added nothing to the [Constitution] as originally ratified”, and really stated nothing more than a truism that is implied by the very Enlightenment nature of the Constitution and its authors: That Human Beings by the nature have rights and that government is enacted in order to protect and expand those rights. The Anti-Federalists would not be championing the 10th Amendment as a tool for every extreme libertarian or reactionary at the state level who tries to retard or stall the general progress of human decency and freedom in the name of some sort of State privilege.
Does a state have the right to have different conceptions of rights and laws than the country does? Or the county from the state? Or the city from the county? Or the household from the city? Where does the infinite regress of an applied 10th Amendment end? It ends with the end of the idea of Universal Human decency and rights as the purpose of government, and it negates the very revolution that the Enlightenment Era founders imagined and executed.
I will end with a quote from the ruling in the case of United States Vs. Darby. It is as relevant to the nature of our constitution now as it was then at the height of the Second World War:
The [10th] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers…..