by Thomas B. McAffee, Jay S. Bybee, and Christopher Bryant. Westport, CT: Praeger, 2006. 308pp. Hardback. $144.95/£80.00. ISBN: 0313313725.
Reviewed by David Ponet, PhD, Department of Political Science, Columbia University. Email: david.ponet [at] gmail.com.
In keeping with this series, Thomas B. McAffee, Jay S. Bybee, and Christopher Bryant have set out to provide a guide to the history of the 9th and 10th amendments for lawyers, laypersons, and academics alike. At least for the non-lawyer, the 9th and 10th amendments are arguably among the more obscure of the Bill of Rights – perhaps because as these authors cogently demonstrate, the two amendments have largely fallen into obsolescence, if not permanent interment. But in the process of marching the reader through the initial emergence and subsequent fates of these amendments, the authors have tacitly and explicitly touched on certain of the vexing tensions that often, if not always, confound federal democratic systems. Indeed, according to many traditional conceptions of sovereignty, the sovereign power is supreme and indivisible, the final instance of power and authority, un-beholden to any other authority outside itself (see Bodin 1992; Hobbes 1996; Rousseau 1997; Schmitt 1985; Austin 1995). Yet the Framers of the American constitution in a sense tried to do just that – that is, divide or layer sovereignty – as they sought to create a ‘dual sovereignty’ system with state and federal governments as coexistent and coequal. Even more, McAffee, Bybee, and Bryant note that the Framers were also animated by some commitment to popular sovereignty. Although the authors sidestep the difficult task of defining sovereignty and popular sovereignty, presumably they mean that the Framers held ‘the people,’ either the nation as a whole or the people organized variously in the separate states, as the ultimate fount of power and authority.
The 9th and 10th amendments are known by many as the “federalism amendments.” The 9th seeks to clarify that the enumeration of particular rights ought not be construed as the full extent of rights retained by the people – it seems to guard against the presumption of a limited rights scheme. The authors demonstrate with their historical recasting that opponents of a Bill of Rights feared that such an enumeration posed the danger of a presumption against other rights not explicitly listed. The 10th amendment, meanwhile, cryptically reserves those other powers not expressly delegated to Congress or prohibited from Congress as being reserved to the states or the people. McAffee, Bybee, and Bryant appropriately ask at the start of the book: “What were these rights that the people retained? What rights did the states reserve? And why was the Constitution so indefinite as to reserve rights to the states or the people, without specifying which of those parties reserved the right” (p.2)? [*225] The authors argue that state legislatures represented the sovereign people and were accordingly conceived as holding plenary power unless the people expressly proscribed state power. Accepting this claim, which is likely historical in nature, it begs questions regarding the role of the House of Representatives which also constituted a locus of popular sovereignty (see Madison’s Federalist Paper # 39). In fact, the authors note an 18th century conception of sovereignty that governed for a time, wherein only one entity could be in possession of sovereignty at one time. It bears mentioning that one of the great experiments inherent in the creation of America’s federal system was the attempt to institutionalize several instances of sovereignty that were concurrent on national and local levels. While not taking on directly the competing or vague notions of sovereignty that abounded (particularly when squared with notions of republicanism or democracy), the tensions that federalism wrought with respect to sovereignty linger throughout the book.
The strongest aspect of this book lies in its lucid description of these federalism amendments and their applications – from their moment of inception to the present day.
The authors chronicle the debate that unfolded as to whether a Bill of Rights was necessary. George Washington, for instance, argued against a Bill of Rights because everything that was not expressly relinquished, he maintained, was clearly retained. James Wilson of Pennsylvania said, “The consequence is that an imperfect enumeration would throw all implied power into the scale of government; and the rights of the people would be rendered incomplete” (p.30).
The authors show how such fears gave rise to the 9th and 10th amendments, and how these amendments were at the very center of debate over the omission of a Bill of Rights. Ultimately, they contend, in agreement with Akhil Amar (1998), these amendments (particularly the 10th) reinforce the Article 1 provision of limited national government. In the case of the 10th amendment, some argue it emphasizes power reserved to the states, while others say it underscores the sovereign power of the people. All the same, the authors note that “The tenth amendment is a general reservation of undelegated powers; it is not a fundamental rights provision” (p.44). They cite Amar who reads it as an exclamation point regarding general themes of popular sovereignty and federalism – of course these two concepts are not one and the same thing and may work at cross-purposes. Without straying too far, consider that a doctrine of popular sovereignty might assert the primacy of the people’s will understood as an organic whole, while federalism balks at the notion of a unified whole or common will in favor of separate and distinct state sovereigns or wills.
For those uninitiated to the twists and turns of the 9th and 10th amendments, the book will prove engaging, for the evolution of these amendments arguably tracks the evolution of the country. While aware of the potential tensions between different spheres of government, the authors observe that the [*226] “federalism premise begins from quite a different premise that states have the general power of a sovereign and the national government is of limited powers” (p. 66). Nevertheless the devil may be in the details. Thus McAffee, Bybee, and Bryant show that with the Sedition Act, for example, an expansive reading of Article 1’s ‘necessary and proper’ clause could lead to the interminable accretion of federal power.
MCCULLOCH stands out as a preeminent federalism opinion. On the authors’ account, Maryland held to an 18th century conception of sovereignty when they argued that states alone were the true sovereigns. Chief Justice Marshall rejected their argument and maintained that ‘the people’ were sovereign, that ‘the people’ were represented by the federal government and therefore the federal government was supreme in its orbit of action. The authors, however, point out that Marshall set up a false dichotomy between the sovereignty of state government and sovereignty of the people. He neglected the critical middle which was the people as organized by states or the more complex notion of a people within separate and distinct states. By asserting that the people as a whole adopted the constitution – even if this argument relies on fiction, for in fact, the constitution was ratified by states – Marshall finds no presumption against the exercise of federal power. On Marshall’s interpretation, the 10th amendment protected implied powers for the federal government and militated against reserved state powers.
The authors impute a tension to the Framers’ thinking. On the one had, the Framers believed in natural, inalienable rights that limit government, while on the other hand, they espoused a notion of unlimited sovereignty. Further, the Framers believed the authority to make basic decisions about government was itself inalienable. In the course of offering such astute observations, however, the question regarding the true locus of sovereignty eludes the reader, as perhaps it eluded the Framers, not to mention the Courts over the ages. One point the authors do make is that deployment of the 9th and 10th amendments in the service of protecting individual rights is a betrayal of the amendments’ history.
The most transformative period vis-à-vis the relationship between the federal government and states is arguably the New Deal era. Rulings like BUTLER and DARBY led to the expansion of the federal government based on a logic that treated the distinction between direct and indirect effects on interstate commerce as one of degree rather than kind. “Darby thus inaugurated a period of near prostrate judicial deference to Congress’s views about the scope of its power under the Commerce Clause” (p.159). As a trend, though, the authors witness the diminution of state sovereignty in the 2nd half of the 20th century, an unraveling of the dual sovereignty view, and a reading of the Commerce Clause that rendered the enumerated powers scheme “nugatory.” The authors discuss Justice Brennan’s view that Congress is composed of state representatives who would therefore be unlikely to disregard state concerns and [*227] Justice Blackmun who argued it was the proper role of Congress – not the Courts by way of invoking the 9th, 10th, or any other amendments – to protect federalism. Indeed, between 1936 and 1995 the Court upheld every federal statute regulating private conduct that was challenged for lying beyond the scope of Congressional power under the Commerce Clause. Nevertheless, McAffee, Bybee, and Bryant argue that the real concern of the 10th amendment was the “vitality of reserved powers” (p.192). Their view most clearly comes to light when they state: “Unless and until the Court honors the substance as well as the form of the enumerated powers doctrine, however, the Tenth Amendment will either be reduced to a dead letter or stand for some proposition irrelevant to its text, history, and original purpose” (p.194).
The 21st century, to be sure, has fared no better, as the Courts have fallen to inconsistent rulings. What is more, the 9th amendment’s trajectory has tracked that of the 10th. Intended to prevent federal expansion, the 9th has strangely, been invoked to expand federal power. Traditional interpretations have regarded the 9th amendment as protecting a system of enumerated powers and the rights thus secured against the threat posed by enumerated limitations on national power. The authors trace the historical debates surrounding the 9th amendment’s adoption and argue at its core it was a federalism amendment, not a fundamental individual rights provision as contemporary courts have errantly suggested. “The deriving of national powers from the inclusion of limits on powers was precisely what the Ninth Amendment was trying to prevent” (p.232). To the detriment of most mainstream accounts, they argue, the federalism provenance has been ignored.
In all, McAffee, Bybee, and Bryant do a good job of shedding light on the history and development of the 9th and 10th amendments, and present the reader with a rich appreciation for the tangled relationship between state and federal governments in the US constitutional system. Sovereignty continues to be a contested idea (at least in political theory literature), particularly within federal arrangements; exploration of the history of the 9th and 10th amendments gives flesh to that contest.
Amar, Akhil Reed. 1998. THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION. New Haven: Yale University Press.
Austin, John. 1995. THE PROVINCE OF JURISPRUDENCE DETERMINED. New York: Cambridge University Press.
Bodin, Jean and Julian Franklin ed. 1992. ON SOVEREIGNTY. New York: Cambridge University Press
Hobbes, Thomas. 1996. LEVIATHAN. New York: Cambridge University Press.
Rousseau, Jean-Jacques and Victor Gourevitch ed. 1997. THE SOCIAL CONTRACT AND OTHER LATER POLITICAL WRITINGS. New York: Cambridge University Press. [*228]
Schmitt, Carl. 1985. POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY. Cambridge, MA: MIT Press.
MCCULLOCH v. MARYLAND, 17 U.S. 316 (1819).
US v. BUTLER, 297 U.S. 1 (1936).
US v. DARBY, 312 U.S. 100 (1941).
© Copyright 2007 by the author, David Ponet.