The Ultimate COA (What’s wrong with the 10th Amendment)

So you think there must be a real doozy of an Amendment to round out this country’s Top-10 list? Maybe you’re right. But . . . umm . . . nope, I’m pretty sure you’re just wrong.

Amendment X: 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.

Remember all that talk during our discussion on the 9^th Amendment about the delegates wanting to get out of town soon, thus hurrying to get the last couple Amendments penned? Well, I stand by that assessment having read the 10^th Amendment. The two go hand-in-hand, seemingly just as rushed as the 9^th. And as was the case with the penultimate entry of the Bill of Rights, I had little idea as to the actual intention of the final one.

Rather than extrapolating to the n^th degree while attempting to suss out a deep meaning, I did what anyone seeking legal advice is warned not to do—I consulted Google. The following simple explanation of the 10^th Amendment’s meaning is from ConstitutionCenter.org:

The Tenth Amendment . . . emphasizes that the inclusion of a bill of rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers . . . The only question posed by the Tenth Amendment is whether a claimed federal power was actually delegated to the national government by the Constitution, and that question is answered by studying the enumerated powers, not by studying the Tenth Amendment.

So there you have it—the key to interpreting this Amendment lies with study of the powers laid out elsewhere in the Constitution. This helps emphasize the much bandied about idea that the Constitution is a living, breathing document. On the surface, it may appear this Amendment is just that cut-and-dried. As though it’s saying, “Move along, now! Nothing more to see here.” Or in British English: “Bugger off, ya wanker!” But that doesn’t seem to be the case.

A 2016 Harvard Law Review article, “The Constitution Means What the Supreme Court Says it Means,” discusses exactly what the title says. (Apparently some organizations like titles to clue their readers into exactly what they’re about to read. Who knew?) We learn from this article that the very words contained in the Constitution are somewhat meaningless. The modern-day interpretation of those centuries-old words are what truly matter. Extrapolating that idea one step further, we can read the 10^th Amendment as a decree allowing federal government to do as it pleases. But only after such time, effort and expense are invested to acquire the necessary Supreme Court ruling. It’s little wonder so much fuss is made regarding whether an outgoing or incoming President should have the right to appoint the successor to a vacant Supreme Court Justice seat.

The 10^th Amendment seems to serve the sole purpose of limiting the reach of the federal government. But it doesn’t exactly spell out what those limitations are. First, you have to read and interpret the entirety of the Constitution. Did you find any direct mention of what you’re looking for? No. Did you search to see if there have been any Supreme Court rulings on the issue? Yup, but there weren’t any. In that case, reread the 10^th Amendment.

It’s—in a sense—circular reasoning. It’d be like if the Wikipedia page for “Universe” only had the “See also” section that linked to, literally, every other Wikipedia page. After reading them all, you still can’t exactly define the Universe, so you do another search for “Universe.” Around and around you go.

Admittedly, this isn’t much of an argument. But it’s all I’ve got, and it’s all I want to say about this Amendment. So, as we’ve come to the end of the Bill of Rights, let’s peer back on the previous 10 months of arguments before venturing onto the next 17.

There’s a saying about the 3 things you need to do when giving a great speech or presentation:

1. Tell them what you’re going to tell them
2. Tell them
3. Tell them what you’ve told them

Looking through the Bill of Rights, I’m reminded of that saying. The 1^st Amendment starts off strong, like the topic sentence of the first, powerful paragraph. It begins with a bang, highlighting major freedoms that make so many people native to other lands desire to immigrate to our great country. Asylum is sought in the United States for our 1^st Amendment protections: to escape religious persecution; to gain the luxury of speaking their minds or penning their grievances without threat of persecution; and to live under a government that serves its people, rather than subjugating them under oppressive rule.

Face it, nobody has ever said, “I want to live in America—the beautiful land whose 3^rd Amendment guarantees we don’t have to share our home with soldiers.”

After that impactful opening Amendment foreshadows what’s to come, Amendments 2-8 tell of the further freedoms guaranteed to United States citizens. Ultimately, the Bill of Rights closes with late 18^th century versions of “Included but not limited to . . .” and “In conclusion . . .” They’re used as a combination to COA that the list of freedoms referenced may not be all inclusive, and to reiterate the extent of the rights protected by the Constitution. All together, the first 10 Amendments culminate in an enduring presentation of freedom.

So, you still think the Top-10 list of Amendments must end with a real doozy? The Bill of Rights reminds me of David Letterman’s Top-10 lists. The final one was often a real stinker, so he’d quickly move on to his next segment. Except Letterman went in reverse order, starting with #10. Meaning #1 was usually the one that should have been aborted. You know what, never mind. Anyway, the word doozy can be interpreted positively or negatively. So, I guess, yeah, come to think of it . . . You’re Probably Right.

[042] May 12, 2021