Here’s a pretty common question: Which is the most important amendment in the Bill of Rights?
Setting aside the fact that I agree that the natural right of self-defense is there to defend all the others, it is a natural right, meaning you are born with that right. It would exist whether we had a Bill of Rights or not.
But for many leading founders – from Thomas Jefferson to Samuel Adams – one amendment was not only the “foundation of the Constitution,” but also “the Palladium of the private, and personal rights of the Citizens.” (Spoiler: it’s all over this website!)
Hear first from Thomas Jefferson in his opinion of the constitutionality of Alexander Hamilton’s national bank in 1791:
“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’”
This was ten months to the day before ratification of the Bill of Rights, and Jefferson was hammering home that he saw the 10th Amendment as the foundation of the entire Constitution.
CONSOLIDATION
A vast majority of the founding generation viewed consolidation, or centralization of power, as a massive threat to the liberty of the people. (not counting Hamilton and friends, of course)
Patrick Henry believed it was the greatest danger, and he railed against it over and over in the Virginia Ratification Debates. For example, he said, “There is one thing in it which I never would acquiesce in. I mean, the changing it into a consolidated government, which is so abhorrent to my mind.”
He added, “Dangers are to be apprehended in whatever manner we proceed; but those of a consolidation are the most destructive.”
Months earlier, a similar debate was happening in the Massachusetts Ratifying Convention. In January, it was pretty clear that ratification would fail, so a deal was struck between the Federalists and the likes of John Hancock and Samuel Adams.
THE DEAL
The deal was to ratify with recommended amendments. The Convention agreed – and in the Massachusettts ratification document – which passed by a slim majority – the very first recommended amendment 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.”
Writing from France, Thomas Jefferson told Edward Carrington (and others) that he was a big fan of this approach:
My first wish was that 9 states would adopt it in order to ensure what was good in it, and that the others might, by holding off, produce the necessary amendments. But the plan of Massachusets is far preferable, and will I hope be followed by those who are yet to decide.
In fact, Jefferson considered that Hancock/Adams precursor to the 10th Amendment – on its own – to be a Bill of Rights, despite his wish to modify and improve on it:
There are two amendments only which I am anxious for. 1. A bill of rights, which it is so much the interest of all to have, that I conceive it must be yielded. The 1st. amendment proposed by Massachusets will in some degree answer this end, but not so well. It will do too much in some instances and too little in others.
This was echoed by Samuel Adams, “‘That it be explicitly declared, that all powers not expressly delegated to Congress are reserved to the several states to be by them exercised.’ This appears, to my mind, to be a summary of a bill of rights, which gentlemen are anxious to obtain.”
Previously, in the Confederation Congress, Richard Henry Lee attempted to attach a series of amendments to the Constitution before sending it to the states for consideration. While he wasn’t successful in his motion, he made the same point as both Jefferson and Adams:
“No power should be exercised, but such as is expressly given, and therefore no constructive power can be exercised. To prevent this is the great use of a bill of rights.”
FOLLOWING MASSACHUSETTS
As Jefferson advised, a number of states started to approach the ratification debates with “the plan of Massachusetts.”
In June, New Hampshire ratified with the exact same recommended amendment language as Massachusetts.
Virginia followed, beginning with, “First, 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.”
In South Carolina, this line in the sand of delegated and reserved powers was listed 2nd among their suggested amendments in their ratifying document,
“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.”
There was a similar approach in New York, recommending amendments starting with, “That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest, Protection and Security.”
Third on that same list reads, “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.”
THE STALL
Despite all this, when the First Congress was in session, Federalists stalled on the deal and it seemed likely they wouldn’t propose amendments after all
Samuel Adams made it clear that a line in the sand must be drawn between federal power and those reserved to the states and the people.
Writing in a letter to Elbridge Gerry in 1789, Adams said, “Without such Distinction there will be Danger of the Constitution issuing imperceptibly, and gradually into a Consolidated Government over all the States.”
He wrote similarly to Richard Henry Lee, saying, “I am impressed with a sense of the Importance of Amendments; that the good People may clearly see the distinction, for there is a distinction, between the federal Powers vested in the Congress, and the sovereign Authority belonging to the several States, which is the Palladium of the private, and personal rights of the Citizens.”
Ultimately, the federalists relented. And today, most people associate passage of amendments in the 1st Congress with the dogged persistence of Rep. James Madison.
But if it weren’t for the efforts of patriots like Richard Henry Lee, Samuel Adams, George Mason, Thomas Jefferson and John Hancock, he may never have had the opportunity. Ultimately, if, as Patrick Henry believed, consolidation would absolutely lead to the destruction of our liberties, then, as Mike Maharrey puts it, “The key to regaining liberty is ‘un-consolidation,’ or to use an actual word – decentralization.”
As John Hancock put it, “The powers reserved by the people render them secure.”
They just need to use them in support of liberty.
