Senator Coburn’s Misreading of the Tenth Amendment

Written by Robert Justin Lipkin on July 17th, 2009

It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong.  No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings:

You know, I — people call me simple, because I really believe this document is the genesis of our success as a country. And I believe these words are plainly written, and I believe we ignore them at our peril. And my hope is that the Supreme Court will re-look at the intent of our founders and the 10th Amendment, where they guaranteed that everything that wasn’t spelled out specifically for the Congress to do was explicitly reserved to the states and to the people. To do less than that undermines our future.

But that’s not what 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 ptmpphprcldyw1.jpgeople.” This doesn’t come close to saying that “everything that wasn’t spelled out specifically for Congress to do was explicitly reserved to the states and to the people.” This might be what Senator Coburn wants the Tenth amendment to say, but that’s just judicial activism, legislating from the bench, making, not interpreting law. Indeed, Senator Coburn’s interpretation of the Tenth Amendment is closer to a similar, but much stronger “states’ rights” provision in the Articles of Confederation, the first American charter replaced by the United States Constitution. Here’s the relevant provision “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.” (Emphasis added) There’s no “expressly,” “spelled out specifically,” or “explicitly reserved to the states and to the people” in the Tenth amendment. If Senator Coburn is going to object to going beyond the plain words of the Constitution, shouldn’t he be required to know what those words are?


Comment by Bryce Shonka
2009-07-17 15:38:00

OK, so you’ve shot down Coburn’s statement.

Conversely, you failed to mention how the Constitution DOES delegate to the Federal Government power to monopolize Health Care, save Spotted Owls, take over private companies. Where is the constitutional mandate to do things like record all of our phone calls and emails…to leverage an unapportioned income tax, etc.

If you hold this secret knowledge I’d love it if you would enlighten me.

(Comments wont nest below this level)
2009-07-18 10:47:00

I must not have expressed myself with sufficient clarity. The Constitution does not contain the word “associate,” yet conventional wisdom embraces the right to association. My point was simply that if Senator Coburn is going to make certain essentially contested assertions such as the plain meaning perspective he should get the words of the Constitution right.

Comment by Kevin Gutzman
2009-07-17 16:05:38

There’s no “expressly” in the Tenth Amendment, true, but none was needed. In fact, Federalists in the ratification process assured the American people that the principle Coburn repeated was implicit in the unamended Constitution. Of course, that principle had to be implicit, or else listing a bunch of powers of Congress in Article I, Section 8 didn’t make any sense.

Virginia’s Governor Edmund Randolph, who was both a Philadelphia Convention Framer and a Richmond Ratification Convention ratifier, repeatedly told the Ratification Convention in Virginia that Congress would have only the powers that were “expressly delegated.” See my 2004 article in _The Review of Politics_, “Edmund Randolph and Virginia Constitutionalism,” on this point. For the Ratification Convention generally, see ch. 3 of my book, _Virginia’s American Revolution: From Dominion to Republic, 1776-1840_ (Lexington Books, 2007).

I suppose that you’ve gotten this great “insight” about omission of the word “expressly” from the Tenth Amendment from Ch. Justice John Marshall’s opinion in _McCulloch v. Maryland_ (1819). For the distinction between legal training (that is, reading what dead judges said about the Constitution) and an actual education, see my _The Politically Incorrect Guide to the Constitution_ (Regnery Publishing, 2007). Marshall knew better: he was on the committee of the Richmond Ratification Convention that told the Convention that Congress would have only the powers that were “expressly delegated.” Never trust a politician; read ch. 3 of _Virginia’s American Revolution…_ for yourself.

(Comments wont nest below this level)
2009-07-18 10:49:24

You say it wasn’t necessary to explicitly include the word “expressly” in the Tenth Amendment and then you go on to cite extraconstitutional sources to justify your assertion. While I disagree with your argument, that’s not the point. The point is that if your argument is correct, Senator Coburn’s argument is wrong. Plain meaning radically fails as an interpretive methodology. In short, your argument proves my point.


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