A ‘living constitution’ is a dead constitution, because it does not do the one and only thing a written constitution is supposed to do: provide parameters around the power of officials.
The American Claimant, http://goo.gl/aZbPY
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by Steve Palmer, Pennsylvania Tenth Amendment Center
- The act of usurping, especially the wrongful seizure of royal sovereignty.
- A wrongful seizure or exercise of authority or privilege belonging to another; an encroachment
As readers of this web site are doubtless aware, the Tenth Amendment says,
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.
Often when people paraphrase the Tenth Amendment, they will say something like this, “The federal government is only allowed to do certain specific things which are listed in the Constitution. The federal government is not allowed to do anything which isn’t listed in the Constitution”.
This is true as far as it goes, but I’d like to draw attention to the words “are reserved” and ask you to think carefully about them. “The powers not delegated… are reserved to the States… or to the people”.
What do those words really mean? On December 14, 1791, the Constitution existed without the Bill of Rights. Then, on December 15, 1791, the Bill of Rights was ratified, including the Tenth Amendment. With that ratification, the People and the States established a set of powers, consisting of nearly all powers, and in effect, said, “As-of today, we claim authority for any power which we have not delegated to you”. Symbolically, this was the equivalent of planting a flag on a newly discovered piece of land. The states said, “We know about these powers, and they are ours; not yours.”
Do you see the distinction? It’s a matter of tense. We tend to think of the Tenth Amendment in the present tense (understandable, given that it’s written in the present tense), but in actuality, a reservation can only be made once, and once made, it is complete and permanent (unless relinquished). The Tenth Amendment reservation of powers was made on December 15, 1791 and the Tenth Amendment should now be applied in the past tense. The question we need to ask when evaluating the Tenth Amendment is, “Was this claimed power among the powers that were reserved for the States or for the People on December 15, 1791?”
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