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language of the Fourteenth Amendment seems to imply the meaning given by the Courts, as in it the States are prohibited from doing what the Fifth Amendment prohibits. If the Fifth applies to the State governments, what need of the same prohibitions in the Fourteenth ?
Article 9.-The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The very language of this article shows the impossibility of making any complete enumeration of rights. The inference might be drawn from some of the preceding articles, that what has not been therein prohibited, the government has the power to do. This article was inserted to prevent such an inference, by the declaration that other rights not specifically mentioned are not therefore to be denied. But what others? The matter is left in fact just where it was before any specific rights were enumerated.
It was well said by Mr. Hamilton "That bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. * * * They have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing, they have no need of particular reservations. * * * The truth is, that the Constitution is itself, in every rational sense, and to every useful purpose, A
Article 10.-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.
1 Federalist, No. 84.
No part of the Constitution has been so often incorrectly quoted as this. The word "expressly" has been interpolated before the word "delegated," and many, perhaps, "Expressly" believe the Constitution to speak of powers expressly delegated to the United States. But the word is not in the Constitution, either in this article or in any other. It was in the Articles of Confederation, which was not a real constitution, but only an agreement between the States.
Effort to Insert it.
A motion was made, when this Amendment was under consideration in Congress, to insert the word "expressly," but it was not carried. Mr. Madison objected to it, "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.”1 A few days afterward the motion was renewed, and again it was lost.2
This Tenth Amendment has not only been misquoted; its meaning has been strangely perverted. Says Dr. Cooper, "Congress, under the Constitution of 1787 and ment Mis- its Amendments, can exercise no rights or powers but such as are expressly enumerated and delegated, or that necessarily and unavoidably flow from those that are. Every other right and power is reserved by and remains vested in the States, to be delegated or not. The people seem to be wholly ignored by this writer. He has no idea that the general government has any power save as it has been delegated by the States. But the States, as governments, have delegated nothing. All the power has come from the people. They have delegated to the United States government, and they have delegated to the State governments. The term "United States," in this Amendment, means the United States government, and not the people. So "States" means the State governments.
1 Annals of Congress I, page 790.
2 Ibid, page 797.
gated by the
The meaning of the Amendment is plain. The people of the United States are the source of power. They have established a kind of double government,-that of the United States and that of the several States. The people of the United States have authorized the general People to both government, known as the United States, to exercise large powers, and in the same Constitution have made various prohibitions upon the State governments. Whatever there may be of the nature of governmental power, which has not been thus authorized to the general government, nor prohibited to the States, the people of a State may delegate to that State, or they may retain it undelegated. The States, as governmental corporations, have delegated nothing. The people of a State may insert in their own constitution any power not already inserted by the whole people in the Constitution of the United States, and not forbidden by the whole people to be inserted in a State constitution.
The distinction between the people and the government must never be lost sight of. The people make constitutions; governments carry on the legislative, executive, and judicial departments of civil society in conformity with the Constitution thus made by the people. This is People and the true of the whole people and of the people of the
several States. The people of the United States are under no restrictions as to the powers with which they may clothe their government, except those that are imposed by the great rules of justice and right. But the people of a State are restricted. They may not confer on their State government any powers which the whole people have conferred on the United States government, nor any which the whole people have said shall not be exercised by the State governments. "What is not conferred by the Constitution is withheld, and retained by the State governments, if vested in them by their constitutions; and if not so vested, it remains with the people, as a part of their residuary sovereignty. ** It is a general principle that all
bodies politic possess all the powers incident to a corporate capacity, without any express declaration to that effect; and one of those defects of the Confederation which led to its abolition, was its prohibiting Congress from the exercise of any power 'not expressly delegated.'"'1
These ten Amendments were proposed by Congress September 25th, 1789, and ratified December 15th, 1791.
Article II. -The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.
This Amendment, which has been considered already in connection with the Judiciary, (page 191,) was proposed March 5th, 1794, and ratified January 8th, 1798.
Article 12.-This Amendment, relating to the election of President and Vice-president, was given in full (page 155) when treating of the Executive Department. It was proposed December 12th, 1803, and was officially declared to be ratified September 25th, 1804.
Article 13, Sec. 1.-Neither Slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Sec. 2.-Congress shall have power to enforce this article by appropriate legislation.
Until this Amendment was made, the word slavery was not to be found in the Constitution. If the idea was there, it was expressed by a euphemism. Even the Amendment proposed by Congress, March 2d, 1861, to which allusion has already been made, spoke of
First use of the word Slavery.
1 Duer, page 345.
"persons held to service or labor." But now that the institution was to be abolished, it was called by its own name.
Slavery had already been abolished by act of Congress in the District of Columbia, April 16th, 1862, and in the Territories June 19th of the same year. The President had also, by proclamation, January 1st, 1863, declared all slaves in the rebel States free.
The resolution for the abolition of slavery was passed by two thirds of the Senate, April 8th, 1864. But the requisite majority was not secured in the Congress JanHouse till the following winter. It was adopted January 31st, 1865, and transmitted to the States. fication by the requisite number of States was announced December 18th of the same year.
Mr. Secretary Seward, in his certificate that the Amendment had become valid as part of the Constitution of the United States, named twenty-seven States-three fourths of thirty-six-as having ratified it. Of these, eight had been in the Rebellion; and though they had formed new free-State Constitutions under the proclamations of Presidents Lincoln and Johnson, none of them had been formally restored to the Union by act of Congress. There were then nineteen loyal States that had ratified this Amendment, and four others did so subsequently to the date of the certificate. According to the view taken in this work, that a proposed Amendment becomes valid when ratified by three fourths of the loyal States, the Thirteenth Amendment was truly a part of the Constitution at the date of the Secretary's certificate, nineteen of the twenty-five loyal States having ratified it.
Those who think the ratifications of three fourths of the whole number of States requisite, maintain the legality of the ratification in this way: The eight insurrectionary States that ratified this Amendment had been reconstructed in accordance with Executive proclamations, though without any official recognition by Congress. But as this body had not disapproved of this reconstruction, and as this Amendment had been sent to these