Then a months hiatus set in. Massachusetts did not become Number Six until February 7, and her approval of this explicit and solemn Compact was not unqualified:
It is the opinion of this convention that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth, and more effectually guard against an undue administration of the Federal government.(59)
It will come as no surprise that the very first amendment recommended by Massachusetts was that it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.
Two months later, on April 28, Maryland ratified. Then there was another lapse of nearly a month before South Carolina, on May 23, became Number Eight. South Carolina accompanied her resolution of ratification with a pointed statement that she considered it essential to the preservation of the rights reserved to the several States and for the freedom of the people, that the States right to prescribe the manner, time, and places of Congressional elections be forever inseparably annexed to the sovereignty of the several States. Then South Carolina added:
This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the States do not retain every power not expressly relinquished by them and vested in the General Government of the Union.(60)
New Hampshire, in voting its approval on June 21, closely paralleled the action of Massachusetts, but New Hampshires declaration as to reserved powers was even more explicit. The people of New Hampshire wanted it understood that all powers not expressly and particularly delegated were reserved.
So, too, with New York, which became Number Eleven on July 26. The convention at Poughkeepsie wished to make it known:
That every Power, Jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said
Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for
Interestingly enough, New Yorks convention also wanted certain things made known about the Supreme Court of the United States, to wit,
That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be encreased enlarged or extended by any Fiction Collusion or mere suggestion;And That no Treaty is to be construed as to alter the Constitution of any State.(62)
With New Yorks ratification, a quite extended period of inaction began. It was not until November 21, 1789, nearly a year and a half later, that North Carolina became Number Twelve in the Union. And North Carolina, for her part, inserted a declaration:
That each State in the Union shall, respectively, retain every power, jurisdiction and right, which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal government.(63)
Finally, after another lapse of half a year, Rhode Island completed the chain of member States. On May 29,1790, Rhode Island, with great caution and reluctance, joined the Union. The margin of ratification, we have noted, was a bare 34 to 32. Clearly, the necessary votes would not have been obtained if the resolution of approval had not included eighteen detailed paragraphs of understandings, plus no fewer than twenty-one proposed amendments. The third of these impressions declared:
That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several States, or their respective State governments to whom they may have granted the same. . . .(64)
And the very first of Rhode Islands recommended amendments proposed that:
The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this Constitution expressly delegated to the United States.(65)
All these various recommendations as to Constitutional amendment were grouped together by the First Congress in a resolution on March 4, 1789, submitting what is now the Bill of Rights to the member States. Twelve proposals in all were offered. Numbers One and Two failed of ratification; the first would have fixed representation in the House according to a precise guarantee by population; the second would have provided that no law changing the salaries of Congressmen could take effect until an election of Representatives shall have intervened. The remaining ten amendments won a sufficient number of States; and the tenth of these, as it is now embedded in our Constitution, forever proclaims that:
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.
In recent years, the Supreme Court of the United States has undertaken to repeal the Tenth Amendment by treating it as a meaningless appendage to the Constitutionmere surplusage, a tautological expression of self-evident facts. The Tenth Amendment added nothing to the instrument as originally ratified, said the Supreme Court in 1931.(66) The Amendment states but a truism, added Chief Justice Stone ten years later.(67) But the overwhelming preponderance of evidence proves that when the Tenth Amendment was nailed into the Constitution, the ratifying States regarded this statement of reserved powers as a vital, indeed an absolutely necessary addition to the Constitution.
The Supreme Court, it may be suggested, has no authority to repeal any provision of the Constitution. Mr. Justice Frankfurter, no less, is a recent authority on the point: Nothing new can be put into the Constitution except through the amendatory process, he said recently for the court. Nothing old can be taken out without the same process.(68) And so long as the Tenth Amendment remains a part of the Constitution, it is elementary that it must be given full meaningthat the intention of its framers must be acknowledged and respected. Plainly, the intention of the Tenth Amendment was to restrict the Federal governmentto hold it within the strict boundaries of the delegated powers. To be sure, John Marshall, not long after the Union was formed, was to seize upon the fact that the restriction went only to the powers not delegated, and not to the powers not expressly delegated, as if this made some large difference. But by that time Marshall was at the helm, and the powers of the States already were being eaten away by slow judicial erosion. The process continues, at an accelerated pace, to this day.