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Thursday, May 07, 2009

Constitutional Question of the Day

(Full disclosure: I probably won't be able to do this everyday.)
Articles of Confederation, Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Constitution, Amendment X: 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.
Are these significantly different? If so, why?


Anonymous said...

I'm having trouble seeing a differance. Seems like different wording for the same thing.

Charles said...

One difference is that the Articles speak of "every power, jurisdiction, and right" whereas the Constitution only mentions "powers". This may seem like a hair-splitting distinction, but "rights" and "powers" are not the same thing. Rights are (or at least were believed by some of the founders to be) inalienable, whereas powers can be granted or taken away as necessary. Those who advocate "states' rights" on Constitutional grounds are thus confronted with the fact that the Tenth Amendment does not actually mention states' rights at all.

Anonymous said...

Well of course from a radical libertarian anarchist perspective states don't have rights, whether they are national or local. Add good ole Spoonerian opposition to constitutionalism to that and this question becomes even more moot from a libertarian anarchist perspective.

Thomas Bell said...

Both are essentially the same, but the quote from the Articles is stronger.

Rob said...

I'd say that there is a major difference between the two. The original article from the Confederation emphasizes that the States retain their "sovereignty, freedom, and independence", which is not mentioned anywhere in either the original articles of the Constitution nor in the 10th amendment.

If the 10th amendment had copied the wording of the original Article II, would the "Civil War" have even happened? Lincoln would certainly have had a much harder time convincing anyone with his "the Union is older than the States" nonsense.

Greg said...

The Articles of Confederations "prohibits" nothing to the States. The Constitution adds the phrase "nor prohibited by it to the States", and prohibitions elsewhere in the text.

Sheldon Richman said...

Article II is certainly more complete than Amendment X. But I want to emphasize two differences. First is that Article II has the word "expressly" before "delegated." Amendment X does not. The framers deliberately chose not to import the article into the Constitution, though of course they were perfectly capable of doing so. When what would become Amendment X was being debated in Congress, Rep. Thomas Tudor Tucker proposed to insert "expressly," but James Madison arose in opposition, arguing that all constitutions must have "powers by implication." Thus he endorsed the modern constitutionalists' hated "implied powers" doctrine. The proposal was defeated three different times.

Second, Crosskey draws attention to the differences between the words "retained" (Article II) and "reserved" (Amendment X). "Retained" indicates that something possessed previously is still possessed. "Reserved" does not do this. Crosskey said the word was chosen to indicate that what was being reserved was something new, powers arising under the new constitutional order. In the full context of events, this argument has much persuasive force.