Sunday, February 2, 2020

Ehighalua on the Tenth Amendment

Iseghohime Ehighalua, a doctoral candidate at the American University, Washington College of Law, has posted The Tenth Amendment: A Reflection:
The tenth amendment is both a legal and political toolkit for proponents on opposite sides of the national government vis-a-vis state rights divide. These binary, indeed, multi-visionary visions pervaded the U.S. Constitution making process, thus, the Founding Fathers debated these and other ideas intensely before drafting the Constitution. As a measure of this polarization, some of the ideas and rights that did not make it to the Constitution were subsequently reflected in amendments. This was how the tenth amendment found its way into the Bill of Rights and is today considered part of the Constitution. In this essay, I unpack the history of the tenth amendment and how the Founding Fathers argued for its inclusion in the Constitution. I identified James Madison and Alexander Hamilton as the two outstanding Fathers who championed the fight. This essay will demonstrate that the tenth amendment will always be at the intersection of how the executive and the legislative branches interpret their powers, and how either of the branches will use it to justify or undermine the very concept of representative government. As the tenth amendment envisaged that powers not delegated to the federal government or prohibited by it to the states are reserved to the states and the people, it must be jealously guided ultimately by the people, since democracy is envisioned as a system of government of, by, and for the people. I argue that the people must remain vigilant, as eternal vigilance is the price of liberty.
--Dan Ernst.  H/t: Legal Theory Blog