Sunday, March 11, 2007

Reviewed: Powers Reserved for the People and the States: A History of the 9th and 10th Amendments

POWERS RESERVED FOR THE PEOPLE AND THE STATES: A HISTORY OF THE NINTH AND TENTH AMENDMENTS, Thomas B. McAffee, Jay S. Bybee, and Christopher Bryant (Praeger, 2006) is reviewed by David Ponet, Department of Political Science, Columbia University, in the Law and Politics Book Review. Ponet begins:
In keeping with this series, Thomas B. McAffee, Jay S. Bybee, and Christopher Bryant have set out to provide a guide to the history of the 9th and 10th amendments for lawyers, laypersons, and academics alike. At least for the non-lawyer, the 9th and 10th amendments are arguably among the more obscure of the Bill of Rights – perhaps because as these authors cogently demonstrate, the two amendments have largely fallen into obsolescence, if not permanent interment. But in the process of marching the reader through the initial emergence and subsequent fates of these amendments, the authors have tacitly and explicitly touched on certain of the vexing tensions that often, if not always, confound federal democratic systems. Indeed, according to many traditional conceptions of sovereignty, the sovereign power is supreme and indivisible, the final instance of power and authority, un-beholden to any other authority outside itself (see Bodin 1992; Hobbes 1996; Rousseau 1997; Schmitt 1985; Austin 1995). Yet the Framers of the American constitution in a sense tried to do just that – that is, divide or layer sovereignty – as they sought to create a ‘dual sovereignty’ system with state and federal governments as coexistent and coequal. Even more, McAffee, Bybee, and Bryant note that the Framers were also animated by some commitment to popular sovereignty. Although the authors sidestep the difficult task of defining sovereignty and popular sovereignty, presumably they mean that the Framers held ‘the people,’ either the nation as a whole or the people organized variously in the separate states, as the ultimate fount of power and authority.

The 9th and 10th amendments are known by many as the “federalism amendments.” The 9th seeks to clarify that the enumeration of particular rights ought not be construed as the full extent of rights retained by the people – it seems to guard against the presumption of a limited rights scheme. The authors demonstrate with their historical recasting that opponents of a Bill of Rights feared that such an enumeration posed the danger of a presumption against other rights not explicitly listed. The 10th amendment, meanwhile, cryptically reserves those other powers not expressly delegated to Congress or prohibited from Congress as being reserved to the states or the people. McAffee, Bybee, and Bryant appropriately ask at the start of the book: “What were these rights that the people retained? What rights did the states reserve? And why was the Constitution so indefinite as to reserve rights to the states or the people, without specifying which of those parties reserved the right” (p.2)? [*225] The authors argue that state legislatures represented the sovereign people and were accordingly conceived as holding plenary power unless the people expressly proscribed state power. Accepting this claim, which is likely historical in nature, it begs questions regarding the role of the House of Representatives which also constituted a locus of popular sovereignty (see Madison’s Federalist Paper # 39). In fact, the authors note an 18th century conception of sovereignty that governed for a time, wherein only one entity could be in possession of sovereignty at one time. It bears mentioning that one of the great experiments inherent in the creation of America’s federal system was the attempt to institutionalize several instances of sovereignty that were concurrent on national and local levels. While not taking on directly the competing or vague notions of sovereignty that abounded (particularly when squared with notions of republicanism or democracy), the tensions that federalism wrought with respect to sovereignty linger throughout the book.

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