The Ninth and Tenth Amendments: Keystones of Liberty

The founding generation created a political system that carefully divided powers and that was designed to ensure the general government remained limited in its scope and power.  There were certain keystones found within the guiding documents, especially within the Bill of Rights once ratified in 1791.

That system has all but vanished, but two oft-ignored and misunderstood provisions in the Bill of Rights offer the key to restoring the form of government the founding fathers intended – the 9th and 10th Amendments.

Lost in our history is the contentious nature of the state ratifying conventions held to debate and accept or reject the proposed U.S. Constitution, designed to improve upon the ineffectiveArticles of Confederation they had operated under since 1781.  In the preamble the framers set six goals.

  1. Form a more perfect union
  2. Establish justice
  3. Insure domestic tranquility
  4. Provide for the common defence
  5. Promote the general Welfare
  6. Secure the Blessings of Liberty to ourselves and our Posterity

The colonies faced oppression from the British Crown and Parliament after living for more than a century under a form of self-government. Representation in the British Parliament was denied and full citizenship was not granted to the colonial subjects of the Crown. This oppression and treatment of colonists led to revolution.

The American Revolution came to a close when King George III’s representatives signed the Treaty of Paris in 1783. Of importance is the fact each of the colonies were recognized as free, sovereign, and independent states, placing them on the same level as other nations (terms were used interchangeably during this period of history). Article 1 of the treaty states;

His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof. (Treaty of Paris transcript)

As the 13 young nations struggled to stand united it was determined the Articles of Confederation could not be improved as easily as it could be replaced, should the states and the people agree. Each state held conventions to debate the proposed replacement — the U.S. Constitution. Woven within this document were the cornerstones designed to protect against future abuses (as outlined in the Declaration of Independence). Coming to life for the first time were the ideas of John Locke, Charles de Montesquieu, and others who heavily influenced those involved in creating the constitution in 1787.

Three key principles were developed; federalism, enumeration, and the separation of powers.

Federalism is the concept designed to deal with several independent states uniting to form a governing agreement for common issues impacting each state. In a federal system, powers are divided up between two levels of government. Enumeration is designed to limit the general government created under the first principle. Initial separation of powers occurred vertically between the states and the general government they created. The federal government was further separated to help reduce the chance of falling into factional control and balance the federal government in the center, between tyranny and anarchy, under a Supreme Law. Most states adopted similar separation structures in their state constitutions, Massachusetts being the first (in 1780) under the guidance of John Adams.

Even in many families, we separate power and the responsibility to each member most competent in different areas. Think of the times we need help; we see if there’s a family or friend who is more competent than we are. We also share our areas of expertise, balancing the overall load of raising a family while embracing the freedom to interact this way. Just as a doctor may be competent medically but incompetent when it comes to plumbing, we embrace our areas of expertise while supplementing incompetent areas with experts we feel we can trust. Why would governing be much different since it is theoretically representative of the people?

American Federalism is simple yet far from easy. Human nature interferes as special interests and human greed begin to drive certain factions away from general welfare considerations. Over the past century, some citizens focused on transforming republican federalism toward democracy through progressivism’s approach of delegated powers and administrative law.  Today’s alphabet soup of ‘federal’ agencies has not delivered on the efficient non-corrupt dream Progressive Era leaders had promised and yet progressive efforts persist.

We see today a centralized bureaucracy nearly extinguishing the goals of the preamble. The union is no longer striving to be more perfect, justice is twisted, domestic tranquility is failing due to special interest divides, common defense is replaced with a push for open borders, general welfare suffers from the weight of specialized central welfare programs, and the “Blessings of Liberty” are not only lost on ourselves but our Posterity will never even be aware of what was within our grasp under a federalist republic system.

Democracy, factional control, and bureaucracy are delivering what they always have, a shift to the left toward tyranny. Tyranny always has led to anarchy, thus was the reason our founders worked so hard at implementing a system designed to balance American Federalism between these two extremes, defying histories constant struggle. Prosperity came to the early United States thanks in large part to having a separated system of checks and balances focused on local self-governing. It was not designed for efficiency but as a safe guard against human nature’s pull toward tyranny.

Keystones, in masonry, are “a central stone at the summit of an arch, locking the whole together.” In other areas keystones serve as “the central principle or part of a policy, system, etc., on which all else depends.” Removing keystones weaken structures while keystones left to rot will eventually lead to structural failure as if removed.

Many public debates over ratification of the U.S. Constitution focused on a central missing part, one that several states only ratified once assured these keystones would be added. The promise would take until December 15, 1791 when Articles 3 – 12 of the proposed Bill of Rights were ratified, becoming the first 10 amendments. The preamble reads in part, “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

State ratifying conventions brought forward a major concern — there was no keystone to protect states from a potential overbearing central government. Also of concern was the idea of creating an enumerated bill of rights that did not include all rights, allowing an overbearing government to deny any rights that were not enumerated. The final two amendments in the ratified Bill of Rights were the 9th and 10th, both specifically designed to shore up these major weaknesses, to act as the keystones of protection for American Federalism.

With its 21 words the 9th Amendment reads; “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” With this amendment we can literally do away with all the concerns people have for their special interest rights, without a need to petition the courts or government for a granting of specific rights, yet it is ignored and rotting.

With just 28 words the 10th Amendment clearly defined the limits on the general government (referred to as the federal government today) by stating; “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.”

So many challenges today can be resolved by simply upholding this amendment by states taking back their responsibility and the people demanding their rights to be protected by their states against general government tyranny.

Both amendments are still a part of the Supreme Law, yet too often they are ignored, judicially neglected, and totally misunderstood thanks to over a century of rotting. These keystone amendments can still be restored and used effectively, the U.S. Constitution and American Federalism along with them. They lock the “whole together” and are foundationally “on which all else depends.”

About the Author

Gary Wood is a lifetime VFW member with a passion for the Oath of Office and our Supreme Law.With nearly 40 years of devoted study of our Constitution his desire is to help others rediscover the inspiring heritage of the United States.His desire is to see a restoration through education and communication before American Federalism is lost completely.Interposition and nullification are critically important in both restoration and maintenance of the U.S. Supreme Law.