Every so often a certain argument pops up in constitutionalist circles; the argument is one that pertains to the 10th amendment, and whether or not the Federal government can do only what is “specifically” or “expressly” stated in the Constitution, or if they have a little more flexibility in their actions. To be clear, the Tenth Amendment to the Constitution reads:
“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.”
Former Presidential Candidate Ron Paul falls onto the side of the debate that says that the Federal government is limited to only specifically listed powers (I only use him as an example due to his recent position of fame) saying in 2006:
“Under the 9th and 10th amendments, all authority over matters not specifically addressed in the Constitution remains with state legislatures…” (1)
So Paul believes in the “specifically” theory. What makes this important however is what he says directly following the above quote:
“Therefore the federal government has no authority whatsoever to involve itself in the abortion issue. So while Roe v. Wade is invalid, a federal law banning abortion across all 50 states would be equally invalid…” (1)
What makes this so important is that Paul uses his belief on the 10th Amendment to make the claim that the Federal government cannot ban Abortion, nor can it even get involved. So was Ron Paul right on “specifically”? And even more important, is he right in saying the Federal government cannot ban abortion or even get involved? History and the Founding Fathers it seems, disagree with the good congressman.
First we shall turn to the Annals of Congress, to look at the recap of the debate over the Tenth Amendment, which took place on August 18th and 21st, 1789:
“The 9th proposition, in the words following, was considered, “The powers not delegated by the constitution, nor prohibited by it to the States, are reserved to the States respectively.” Mr. Tucker proposed to amend the proposition, by prefixing to it “all powers being derived from the people.” He thought this a better place to make this assertion than the introductory clause of the Constitution, where a similar sentiment was proposed by the committee. He extended his motion also, to add the word “expressly,” so as to read “the powers not expressly delegated by this Constitution…” (2)
So we see that this debate is nothing new; the Framers of the Constitution themselves considered putting the phrase “expressly delegated” into the 10th amendment. Now before we continue, in order to save semantic argument, it should be noted that the words “specifically” and “expressly” mean the exact same thing; if one were to look at a thesaurus they would see that they are synonyms of each other. But back to the debate, for what follows is what is really important:
“Mr. Madison objected to this amendment, because it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia. He remembered the word “expressly” had been moved in the convention of Virginia, by the opponents to the ratification, and, after full and fair discussion, was given up by them, and the system allowed to retain its present form. Mr. Sherman coincided with Mr. Madison in opinion, observing that corporate bodies are supposed to possess all powers incident to a corporate capacity, without being absolutely expressed.” (2)
So when faced with the option of making it “express powers”, it was “Father of the Constitution” James Madison who objected, saying that government must have powers by implication (that is, powers that are implied). Even more interesting is that Roger Sherman, another key Founder, agreed with him. This objection by Madison and Sherman negated Mr. Tucker’s motion and the issue was dropped for two days; but on the 21st, the issue was brought again, this time by Mr. Elbridge Gerry:
“The ninth proposition Mr. Gerry proposed to amend by inserting the word “expressly,” so as to read “the powers not expressly delegated by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people.” As he thought this an amendment of great importance, he requested the yeas and nays might be taken. He was supported in this by one-fifth of the members present; whereupon they were taken…” (2)
When the yeas and nays were taken, the proposition yet again failed, receiving 17 yes votes, but a crushing 32 no votes. When this was done: “Mr. Sherman moved to alter the last clause, so as to make it read, “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.” This motion was adopted without debate.” (2)
What we see here from official congressional records is that the congress did contemplate making the 10th amendment limit the Federal government to express (or specific) powers, but both times the addition failed, and the 10th was passed with the knowledge that government did have implied powers. But the congressional record is not the only source that says this; Joseph Story, an associate Justice of the United States Supreme Court (1811-1845) is the author of “Commentaries on the Constitution of the United States”, which is considered to be one of the most authoritative commentaries on the Constitution is existence. In covering the 10th Amendment, Story writes:
“This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution…When this amendment was before congress, a proposition was moved, to insert the word “expressly” before “delegated,” so as to read “the powers not expressly delegated to the United States by the constitution,” &c. On that occasion it was remarked, that it is impossible to confine a government to the exercise of express powers. There must necessarily be admitted powers by implication, unless the constitution descended to the most minute details. It is a general principle, that all corporate bodies possess all powers incident to a corporate capacity, without being absolutely expressed. The motion was accordingly negatived. Indeed, one of the great defects of the confederation was, (as we have already seen,) that it contained a clause, prohibiting the exercise of any power, jurisdiction, or right, not expressly delegated. The consequence was, that congress were crippled at every step of their progress; and were often compelled by the very necessities of the times to usurp powers, which they did not constitutionally possess; and thus, in effect, to break down all the great barriers against tyranny and oppression.” (3)
Story affirms that the addition to the amendment failed due to the above mentioned powers of implication, and also goes on to describe how the Articles of Confederation had included an “expressly clause”, and that it was that clause that specifically crippled the confederation. Story continues, speaking of the intent of the Framers of this amendment:
“It is plain, therefore, that it could not have been the intention of the framers of this amendment to give it effect, as an abridgment of any of the powers granted under the constitution, whether they are express or implied, direct or incidental. Its sole design is to exclude any interpretation, by which other powers should be assumed beyond those, which are granted. All that are granted in the original instrument, whether express or implied, whether direct or incidental, are left in their original state. All powers not delegated, (not all powers not expressly delegated,) and not prohibited, are reserved…” (3)
Story continues, addressing those who try to alter the meaning of the amendment:
“…The attempts, then, which have been made from time to time, to force upon this language an abridging, or restrictive influence, are utterly unfounded in any just rules of interpreting the words, or the sense of the instrument. Stripped of the ingenious disguises, in which they are clothed, they are neither more nor less, than attempts to foist into the text the word “expressly;” to qualify, what is general, and obscure, what is clear, and defined.” (3)
Story deals harshly with those who try to insert the word “expressly” (specifically) into the 10th Amendment, saying that attempts to do so are not based in fact or in any legitimate interpretation of the amendment in question. The only purpose in doing this according to Mr. Story is to obscure what is plain, clear and defined.
History then shows us that Ron Paul and those who spout the same position as him are wrong when it comes to government being limited to what is only “specifically granted.” This revelation also means that Paul is wrong when he says the Federal government has no place in the abortion topic, for his entire argument is based on a false interpretation of the 10th amendment. Paul says “…abortion simply is not a constitutional issue…There is not a word in the text of that document, nor in any of its amendments, that conceivably addresses abortion.” But Paul is dead wrong in his interpretation. We must remember that the constitution gives the federal government implied powers, and one of these powers is to protect life. We as humans have the God-given rights to Life, Liberty, and Property; it is the government’s job to make sure our rights are protected.
Paul is right in one area, the Constitution does prohibit a national law legalizing abortion; the 5th amendment says that no person shall be deprived of life, liberty, or property without due process (a fair trial), and the 9th amendment tells us that nothing in the constitution shall be used to deny rights to the people. So Paul is right, constitutionally speaking, in that the Federal government cannot make abortion legal because it would be denying the right to life to certain people (the aborted) without a fair trial. Where Paul slips up is to assume that this means abortion is a state issue as he ignores a key amendment in the bill of rights, and that is the 14th amendment.
First, we must address a logical fallacy of Paul; by saying abortion is a state issue, he is saying that state governments have the power to decide whether or not to legalize or ban abortion, which means that he thinks that state governments have the right to decide that they can deprive the right to life to certain individuals if they so choose, they will be the deciders of who lives and who dies. Now some may argue that it is possible that all 50 states ban abortion, and so it is, but there are two things that we must consider; first that this still gives states the power to deprive the right to life to innocent individuals if they so choose, and second, that unless the culture somehow changes, the states of California, New York, and Massachusetts will be hard pressed to ban abortion, meaning that if left to the states, innocent babies will still be deprived of their God-given rights.
But Constitutionally Paul has a problem as well, as the 14th amendment shows us that abortion is not the state issue that the congressman says it is. The 14th amendment says in section one:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This amendment is excruciatingly clear. No state has the right to deprive ANY PERSON of life, or liberty, or property, and every state must provide equal protection under the laws. This negates the idea that it is the states’ job to legalize or ban abortions, seeing that no state has the right to deprive anyone of their life. A state deciding to legalize abortion, to legalize the killing of the unborn, is one that is denying the right to life to those children and thus violating the 14th amendment of the Constitution. Mr. Paul would (and has) claimed that the 14th amendment does not trump the 10th amendment, and he is right; neither trump each other, instead, they work together! All powers not given to the federal government are reserved to the states and the people, BUT that being said, no state has the right to deprive anyone of life without due process!
The conclusion we draw from all of this is that due to the 5th, 9th and 10th amendments, the federal government cannot legalize abortion, and due to the 14th amendment, the state governments also do not have the right to legalize the killing of the unborn; thus, with the knowledge that the federal government is there to protect our rights, it is part of the powers of implication of the Federal government to protect life by banning abortion.
In the conclusion of his article Federalizing Social Policy, Paul asks us why we are so afraid to follow the Constitution, but then goes on to apply his false understanding of the text, on how states should decide this and all social issues. To Mr. Paul I say, we who are trying to get a Federal ban on abortion ARE trying to follow the Constitution, for we are trying to invoke their power to protect the right to life.
What we need is to follow the Constitution and what it actually says about this issue; but this will probably not happen as long as we have lawyers and activist judges who are educated beyond their intelligence and continue to act in direct contradiction to our founding law. With this being the case, what we really need is a constitutional amendment to clearly encode what is already implied in the text; if people refuse to see what it is already there, make it undeniable.
History shows us that the Constitution does not limit the Federal government to only specific powers, that indeed the government does have power of implication, and this must be understood in the abortion debate. For as long as people like Paul (who are no doubt well intentioned) keep pushing a false understanding of the tenth amendment, all the pro-life cause will do is spin our wheels, and more innocent children will die for our lack of action.
1. Federalizing Social Policy by Ron Paul: http://www.lewrockwell.com/paul/paul301.html
2. Annals of Congress, via “The Founders Constitution”: http://press-pubs.uchicago.edu/founders/documents/amendXs6.html
3. Commentaries on the Constitution of the United States by Joseph Story via “The Founders Constitution”: http://press-pubs.uchicago.edu/founders/documents/amendXs9.html