Essential to understanding the history and meaning of the Tenth Amendment, a brief discussion of the concept of sovereignty, and more particularly popular sovereignty, is required. Although the media and academic scholars often use the term “sovereignty” loosely in modern times, the accurate and historical use of the term consists of certain elements, which we will see.
By the time Americans confronted the problem of how to form a new government in the 1770s and 80s, the concept of sovereignty had been well developed. Sovereignty was at the heart of the debate between the American colonies and Great Britain; it was at the heart of the debate between the Federalists and Anti-federalists during the battle to ratify the Constitution. The concept of sovereignty has been lurking at the core of American politics disputes since before the creation of the Republic. It is this concept of sovereignty that is necessary to understanding the Tenth Amendment.
Jean Bodin (1529-1596)
Jean Bodin was a sixteenth century legal scholar and lawyer who was one of the first political theorists to define and explain the concept of sovereignty. Bodin was born in 1529 to a prosperous French family in the town of Angers. In 1576, Bodin published his Six Books of the Commonwealth, in which he attempted to analyze the proper form and authority of government from both theoretical and practical perspectives. Although it was not his first written piece discussing political thought, the Six Books of the Commonwealth was certainly Bodin’s most famous and influential work.[i]
Bodin found it necessary to define and explain the concept of sovereignty before setting forth his ideas about the purpose and form of government. Bodin defined the term sovereignty as the “absolute and perpetual power vested in a commonwealth.” By perpetual, Bodin meant that the power and authority vested in the sovereign is neither extinguishable nor temporary. A sovereign power of course may delegate its own authority but reserves the right to recall that authority at any time. A public officeholder or bureaucrat who has been delegated authority, therefore, is not a sovereign because that authority could be recalled and is not perpetual.[ii]
A sovereign power is also absolute, according to Bodin. An absolute power is an unconditional power. No authority or power is superior to that of the sovereign. As the supreme authority, a sovereign is not even subject to its own law and may impose its will on its subjects regardless of their consent. Despite Bodin’s insistence on the absolute nature of the sovereign’s power, Bodin is careful to explain that the sovereign is subject to the “law of God and of nature.” The sovereign is also bound by its agreements with other foreign sovereigns and agreements made with its own subjects. [iii] Therefore, although the sovereign is supreme within its own realm of authority, Bodin does allow for some exceptions.
To explain his concept of sovereignty more thoroughly, Bodin then proceeds to list specific attributes of sovereignty. Among these attributes, the most important is that the sovereign has the power to make law without the consent of any superior. Indeed, it is the law itself that is the manifestation of the sovereign’s commands. The law can be in the form of statutes or the approval of customary practices, which today is called the common law. Bodin also lists the power to make war and peace, the power to appoint high officials, and the sovereign’s standing as the last court of appeal. These are attributes held by a sovereign only and cannot be shared by its subjects.[iv]
European Nation-States
By the time Bodin developed and explained the concept of sovereignty, European rulers were already taking an active role in putting the concept into practice. Perhaps no other European ruler exemplified this momentous push towards independent sovereign nation status as well as King Henry VIII of England.
By the time Henry assumed the throne in 1509, the people of England certainly were aware of their common culture and bond. Yet, the Catholic Church maintained its authority and sphere of influence from Rome, predominantly in spiritual matters. This situation became intolerable for Henry, particularly when Pope Clement VII denied his request for an annulment from Catherine of Aragon. With the Act in Restraint of Appeals (1533) and the Act of Supremacy (1534), Henry and Parliament effectively extinguished any legal authority that the Church and Pope retained in England. The Anglican “church” was now separated from Rome and Henry was recognized as the Supreme Head of the Church of England.
The French too began to move away from its feudal roots and perceived subordination to Rome towards a modern nation-state vested with full sovereignty under the reigns of Charles VII and Charles VIII. Charles VII, in assertion of French sovereignty, issued The Pragmatic Sanction of Bourges (1438). The Pragmatic Sanction established a French Central Church Council with the authority to appoint church officers.[v] This was in direct defiance of the Pope’s universal authority to appoint Church officers. French authority also became more centralized at the expense of feudal lords. After Charles VIII assumed the French throne in 1483, he was successful in creating a standing army, which was supported by a direct tax on the people. It was under the reign of Charles VIII that France assumed the attributes of sovereignty and came to be seen as independent from both the Holy Roman Empire and the Church.[vi]Thus, even before Bodin memorialized and explained sovereignty, European powers were consolidating their authority on the road to becoming sovereign nation-states. By 1648, Papal authority over international affairs had effectively been curtailed throughout most of Europe. The Peace of Westphalia, signed in 1648, ended the long and bloody Thirty Years War. The Westphalia accord acknowledged European states as independent entities.
Many see the Westphalia Accord as symbolic of the transformation in Europe from a political-theological world to a modern secular world based on a system of sovereign states.[vii] The people of Europe were no longer seen so much as belonging to a larger Christian community; rather, Europeans were identified by their affiliation with an identifiable European state. As Professor Robert Jackson indicates, now “[e]urope was composed of coexisting states that conducted their mutual political affairs via diplomacy and by reference to international law, which was understood as the law of sovereign states.”[viii]
Significantly, these emerging nations possessed Bodin’s attributes of sovereignty: the power to make law without the consent of any superior, the power to make war and peace, the power to appoint high officials, and the power as the last court of appeal. The concept of sovereignty as dreamed up by Bodin now had some practical effect in a secularized nation-state system that simply would not have made sense in an integrated Christendom where both Church and civil government cooperated within proper spheres of authority.
United Netherlands
Although a sovereign entity could delegate authority to a lesser entity or officer, a sovereign could not discharge its own authority and responsibilities to another sovereign and still be considered sovereign. Yet, the Dutch provinces challenged this theory of sovereignty following their revolt against the Spanish Crown. An analysis of the political and governmental structure of the Dutch Republic from 1579 to 1795 provides a unique look at how sovereignty was divided in a manner that ultimately served as model for the American founders and an important point of discussion for Alexander Hamilton and James Madison in the Federalist Papers.
Prior to 1579, the various Dutch provinces were under the control and authority of King Phillip II of Spain. Spain had grown and become powerful, primarily due to the influx of gold from her New World colonies.[ix] However, new taxes, military occupation, and alleged religious oppression led the Dutch provinces to revolt against Spain in 1572.[x] The revolt ultimately led seven of the Dutch provinces to declare their independence from the Spanish Crown.
The struggle for independence from Spain required military and financial cooperation among the Dutch provinces.[xi]Although there was not universal support for a union of the provinces initially, delegates from Holland, Zeeland, Utrecht, and parts of Gelderland signed the Union of Utrecht on January 23, 1579. Eventually the provinces of Overijssel, Friesland, and Goningen would join the Union.
According to Dutch historian Jonathan Israel, the Union of Utrecht was intended to be a league of sovereign provinces (or states) that would agree to give up their sovereignty in limited areas to a new confederate body. These areas were defense, taxation, and foreign policy. Israel opined that the Union was intended to be a confederacy in theory, but in practice operated more as a federal state.[xii] Regardless of whether the Union could be considered a confederacy or federal state, it was significant in that sovereign provinces (or at least declared sovereign provinces) chose to delegate portions of their sovereign authority to another governing body, while retaining their sphere of authority in all remaining areas not otherwise delegated. The new entity created was officially named the Republic of the Seven United Netherlands.
As sovereign nation-states asserted their authority among one another through treaties, alliances, and compacts, internal government structures were changing as well. As evidenced by the United Netherlands, the structure and nature of government was rapidly changing. New types of governments in the sixteenth and seventeenth centuries were forming that were eager to establish not only strong political foundations, but a valid philosophical one as well.
As new types of governments divorced from Rome were forming, new political philosophies were concurrently being developed to justify the existence of the governments as nation-sates. The necessity of establishing a philosophical basis for government became apparent as monarchs and governments faced internal turmoil from within their own boundaries. As such authorities imposed new laws in the form of restrictions, duties, and of course taxes on the individuals who lived within the boundaries of the nation-states, questions were raised: Why does this King have authority to tax? Why does this Queen have authority to determine which religion will be practiced? Where does this authority come from?
Under a Christian worldview, where the Church and the Gospels played an integral role in civil affairs, the answer to this question was, of course, God. [xiii] But under a post-reformation, nation-state system, the answers varied.
By establishing a strong philosophical and conceptual basis for their existence, civil powers could justify their rule to those who were subject to their authority. Naturally, European monarchs asserted their exclusive claim to their respective nation-state’s sovereignty. The question became exceedingly more complicated when the monarch’s authority or competence was questioned by their subjects. It became clear to political philosophers at the time that the concept of sovereignty needed to evolve and expand in order to explain new ideas about government and internal political relations.
What eventually developed as a result of these inquiries into the nature of government and the relationship between rulers and the ruled became the philosophical basis for the American Revolution, the United States of America, and the Tenth Amendment: “popular sovereignty” was born.
Popular Sovereignty Explained
Simply put, popular sovereignty is a type of sovereignty that describes the locus or situs of the sovereignty within a sovereign nation. Other types of sovereignty include, but are not limited to, monarchial sovereignty and parliamentary sovereignty. In this instance, speaking of monarchical, parliamentary or popular sovereignty, refers to what person, or group of individuals, within a defined territorial boundary exercise the authority of the sovereign nation.
Popular sovereignty extends the idea of parliamentary sovereignty further. In its most simplistic form, rather than a group of individuals within a nation exercising the full sovereign power of a nation when assembled, the entire population within the boundaries of the nation exercises the sovereign authority. Like parliamentary sovereignty, individual members of the populace cannot exercise sovereign power individually. Rather, the sovereign power can only be exercised when the people of the nation are assembled as a whole.
The identity of these individuals who make up “the People,” how the People assemble to implement this sovereignty, and the mechanisms by which a large populace exercises this sovereignty has been the subject of debate, controversy, and scholarly analysis—probably because it is not obvious at all. In fact, it appears that the idea of “the People” holding sovereign authority is nothing more than a legal fiction designed to meet the political needs of political leaders.
To gain a basic understanding of popular sovereignty, only a short survey of political thought from the seventeenth and eighteenth centuries is necessary. A number of political philosophers contributed to the theoretical foundations of popular sovereignty, although John Locke and Jean Jacques Rousseau each played important roles. To them we will turn, then, to help us understand the basis and underpinnings of the Tenth Amendment.
John Locke (1632-1704)
John Locke is known for much more than his theories on popular sovereignty. He has been cited as one of most influential political philosophers of his time, and his impact on the Founding Fathers is well known. His ideas concerning separation of powers within a government and his version (some, including myself, would contend distortion) of the natural law theory have found their way into America’s founding documents, including the Declaration of Independence. The American revolutionaries clearly relied on him.
Locke was an Englishman writing during a period a political upheaval in England. At the time Locke wrote his Second Treatise of Government in 1690, King James II had been deposed and ultimately replaced by William, Prince of Orange. This period between 1688 and 1689 was known as the “Glorious Revolution”: a bloodless, English revolution where Parliament once again asserted its authority by removing a sitting monarch.
Members of Parliament were seeking political justification for deposing their King; a tall order since James II was by all rights the valid reigning monarch after his brother had been restored to the throne only a few decades earlier! Nevertheless, if Parliament was going to assert its authority, it needed to come up with a basis for its authority.
Ultimately, by calling an external convention outside of Parliament itself, the Members of Parliament determined the source of their authority was not new, but derived from the ancient English Constitution.[xiv]
The English Convention drafted a Declaration of Rights that was eventually acknowledged by King William and became known as the English Bill of Rights. These English rights were not new but had supposedly existed since “time immemorial.” The deposition of James II, the calling of the Convention, and the passing of the English Bill of Rights constituted the political environment in which John Locke found himself.
Locke, at first writing anonymously, served to provide a political, philosophical, and legal basis for the actions of the Convention and Members of Parliament during this tumultuous period. Locke suggested that man without law is free to engage in whatever activity is necessary to attain and retain the means of life. Locke refers to this condition as a state of nature. Locke indicated that in the state of nature, man is in a state of “perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.”[xv]
Locke qualified this seemingly lawless condition of man with the notion that the “law of nature” limits man freedom to act. Locke elaborates that this law of nature is reason, which “teaches mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….”[xvi][1]
Significantly, Locke contends that in this state of nature each individual is charged with the enforcement of this law of nature. Thus, “every man hath a right to punish the offender [of the law of nature] and be executioner of the law of the nature.”[xvii] Locke essentially concluded that each individual man in the state of nature is his own sovereign, and the law subject to the execution of each sovereign is that law of nature (i.e. reason). And for Locke, the fundamental basis of the law of nature was the right to life, liberty, and pursuit of property. Thus, each sovereign man in the state of nature is responsible for the protection of his own life, liberty, and property and should respect the same rights of others.
With this background in mind, Locke recognized that out of necessity, convenience, and inclination, men form civil societies. Political society is formed when “any number of men, in the state of nature, enter into society to make one people one body politic, under one supreme government: or else when anyone joins himself to, and incorporates with any government already made.”[xviii] The only way, Locke continues, for an individual to divest himself of his natural liberty is
“by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another…[and] when any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest… [a]nd thus that, which begins and actually constitutes any political society, is nothing but the consent of any number of freemen capable of a majority to unite and incorporate into such society. And this is that, and that only, which did or could give beginning to any lawful government in the world.”[xix]
Locke’s statement appears to reiterate the straightforward, well-known philosophical basis for modern liberal political societies understood throughout modern western culture. But to understand the Tenth Amendment, it is necessary to dig deeper into Locke’s ideas and address how power is transferred from the individual persons to this newly incorporated community or government.
First, does this newly constituted government maintain authority over those who never consented to its creation in the first place? Locke answers affirmatively. Locke argues that beyond those who give their express consent to such government formation, everyone within the community who receives protection of their possessions of persons give their tacit consent to such authority. Whether one is living within the community permanently or traveling through temporarily, the sovereign authority extends to “the very being of anyone within the territories of that government.” [xx]
Secondly, what authority does a sovereign individual give up to this new government formed by the consent of the People? Locke responds that each individual must surrender to society only as much sovereign authority necessary that society will require to protect the individual and mankind. Each individual also surrenders his inherent, natural right to enforce sovereign rights, and transfers this authority to the executive power of society—providing the government with the authority to enforce its laws.
Locke is careful to remind his readers that man is only choosing to surrender these sovereign rights to a government established by the People to be used as “the good of society shall require” and as a remedy to the dangers found in his state of nature.[xxi] Man is not, and could not, surrender all natural rights to a sovereign entity.
For Locke, despite the ability of each sovereign individual to consent to transfer or alienate a portion of sovereign authority to the state, the People will always retain the supreme power to remove the government when that government does not exercise its fiduciary duty of preserving the liberties and properties as Locke envisions them. This is because, Locke explains, man can logically only surrender authority that he possesses in the first place, and under the laws of nature, man does not have the authority to destroy himself. When the government fails to protect those natural laws which Locke insists government was instituted to protect, the People have an inherent right and duty to reclaim that sovereign authority for themselves. [xxii]
Jean-Jacques Rousseau (1712-1778)
While John Locke provided the intellectual heavy lifting when it came to the development of popular sovereignty, Jean-Jacques Rousseau offered the final puzzle piece necessary to understanding the role of the People in the United States.
Rousseau took Locke’s idea of popular sovereignty one additional step. The People, according to Rousseau, do not transfer their sovereign authority to the government; rather, the People are the sovereign authority.
One of Rousseau’s most well-known political works, The Social Contract or Principles of Political Right, was published in 1762. In The Social Contract, Rousseau recognized the need to form a “common force” that will protect each person and their goods, while preserving the freedom of each individual. When individuals come together and enter into such a force, or association, a “social contract” is formed.[xxiii]
According to Rousseau, the “terms” of this social contract can be summarized as follows: “Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.” Rousseau continues:
“At once, in place of the individual personality of each contracting party, this act of association creates a moral and collective body, composed of as many members as the assembly contains votes, and receiving from this act its unity, its common identity, its life and its will. This public person, so formed by the union of all others persons…is called by its members State when passive, Sovereign when active, and Power when compares to others like itself. Those who are associated in it take collectively the name of the people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the State.”[xxiv]
The sovereign power according to Rousseau, therefore, lies with the People. The People is that body of individuals who have agreed to form a social contract and thereby a state. The specific individuals who make up the People necessarily have two roles. First, each individual is a citizen of the state, and subject to the sovereign authority of the People. Second, each individual makes up one part of the People as whole.
Only when the People act together, with purpose, is the power of the sovereign exercised. Rousseau notably refers to the exercise of this power as the General Will. For Rousseau, when the General Will acts, it is always in the right because the focus of this public body will always be for the objective good of the People as a collective whole, rather than serve the particular interests of the private individuals that actually constitute the People. [xxv] As Rousseau notes, there must be a common interest among the individuals who form the collective whole of the state, otherwise there would be no reason for individuals to enter into the social contract in the first place.[xxvi]
A significant difference between Rousseau and Locke’s theory of sovereignty was that Rousseau suggested that the social contract requires a complete alienation of natural rights to the sovereign power. Rousseau argued that a complete abandonment of all sovereign authority from each individual to the collective sovereign was necessary because if individuals were to retain certain rights there would be no common intermediary between that individual who retained his rights and the public as a whole, presumably should a dispute arise. This would result in a return to the state of nature where only might would determine who is right.[xxvii] Locke, of course, noted that the individual only surrenders those rights and freedoms necessary to remedy the dangers found in the state of nature.[xxviii]
Rousseau demanded that private individuals, who as a collective constitute the People, must swear allegiance to a type of “civil religion” that would act to benefit society as whole. In such a manner, the civil religion, or allegiance to the collective, would necessarily replace allegiance to any economic, cultural, or even religious views that may oppose the General Will. Such ideas would inspire the French Revolution and various communist regimes of the twentieth centuries.
Despite these differences between Locke and Rousseau, at the end of the day, they agreed in principle on the idea that the People constitute the sovereign authority, and that this authority is not granted to this nebulous, ill-defined notion of the People from God above, but rather rises up from the desire and will of the individual.
Popular Sovereignty and the Tenth Amendment
How then does popular sovereignty affect our understanding of the Tenth Amendment? As will be seen in subsequent chapters, it is believed that Americans accepted popular sovereignty and recognized that government, whether state government or a national government, derived its sovereign authority from the People. But a problem arose when crafting the founding constitutional documents.
Although the delegates to the United States Constitutional Convention in 1787 understood well the concept of popular sovereignty, there were thirteen states (former colonies) already in existence and operating under the Articles of Confederation. Each state possessed and cherished its own government, infrastructure, customs, and laws.
If the sovereign authority of the new government was to be derived from the People as popular sovereignty required, the question that arose, and one where no past template existed to provide guidance, was which group of individuals constituted the People? Upon adoption of the 1787 Constitution, would the People of each state be dissolving themselves, and reconstituting themselves into one single identity, that is, the People of the United States? Was it possible for the People of each individual state to retain their identity, and thus their sovereign authority within their own state, while at the same time pledging their sovereign authority to a national government?
The arguments and debates over the identity and authority of the People played out in multiple forums including: the American Revolution, the First and Second Continental Congress, the creation of the Articles of Confederation, the 1787 Constitutional Convention, the ratification debates, and the halls of the United States Congress. The Tenth Amendment was born of these debates.
[1] A key problem with Locke’s conception of reason as it informs his idea of the law of nature is that it is divorced from faith. While Locke gives lip service to God, his theory is really one developed without any need for God. A discussion on the problems with Locke’s notion of the law of nature exceeds the limited scope of this work focused on the Tenth Amendment.
[i] Jean Bodin, Six Books of the Commonwealth, ed. and trans. M.J. Tooley (Oxford: Alden Press, 1955), https://constitution.org/2-Authors/bodin/bodin_.htm.
[ii] Ibid., Book I, chap. VIII.
[iii] Ibid.
[iv] Ibid, Book I, chap. X.
[v] Colin Jones, Cambridge Illustrated History of France (Cambridge: Cambridge University Press, 1994), 121-23
[vi] Ibid., 127.
[vii] Robert Jackson, Sovereignty (Polity Press, 2007), 50-51.
[viii] Ibid, 53.
[ix] Norman Davies, Europe: A History (Oxford, Oxford University Press, 1996), 529-31.
[x] Jonathan I. Israel, The Dutch Republic: It’s Rise, Greatness, and Fall 1477-1806 (Oxford: Clarendon Press, 1995), 167-69.
[xi] Ibid, 199.
[xii] Ibid, 276.
[xiii] Romans 13:1
[xiv] Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America, (New York: W.W. Norton & Company 1988), 107-17.
[xv] John Locke, The Second Treatise of Government, (New York: Barnes & Noble, Inc. 2004), 3.
[xvi] Ibid.
[xvii] Idid, 5.
[xviii] Ibid, 47.
[xix] Ibid, 52-54.
[xx] Ibid, 64-65.
[xxi] Ibid, 69.
[xxii] Ibid, 83.
[xxiii] Jean-Jacques Rousseau, “The Social Contract”, in Great Books, vol. 35, ed. Mortimer J. Adler (Chicago: Encyclopedia Britannica, Inc., 1993), 391.
[xxiv] Ibid, 392.
[xxv] Ibid, 397.
[xxvi] Ibid, 395.
[xxvii] Ibid, 391.
[xxviii] Locke, 69.
