When most people hear the phrase “Checks and Balances”, they normally think about the three co-equal branches of the US government, the Executive, the Legislative and the Judicial. That’s expected as this is the most common idea of the Constitution taught in schools – at least before civics was replaced with teaching third graders how to put a condom on a banana. Of course, the idea is that each branch has the duty and responsibility to keep the others in line as each has powers that the other doesn’t and at least theoretically, no government action can occur without agreement of all three.
Another fact of American governance, and one less understood, is that beyond this commonly stated concept of our government, the Constitution established another set of checks and balances, one less understood but far more powerful.
In Amendment 10 – Powers of the States and People. Ratified 12/15/1791, it states:
“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.”
The Tenth Amendment establishes an even more powerful triumvirate, the federal government of the United States, the several states themselves and the people. The interesting aspect of this triumvirate is that 1) the powers of the federal government are enumerated and limited by the US Constitution, 2) the powers of the several states are also similarly limited by the state level constitutions but 3) the powers of the people are unlimited.
This hierarchy of American power is based on the idea that the people created government, the government didn’t create the people. The very idea that a government could be established to protect and preserve freedom and liberty was something completely new as the new country evolved. However; this was not a new idea, just one boldly executed by a people seeking to preserve independence and liberty for all. In Sec. 222 (Chapter 19) of his Second Treatise of Civil Government (1690), philosopher John Locke wrote:
“The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society…”
The common form of governance up until the creation of the United States was a “top down” affair – the government, typically a monarchy or some sort of authoritarian arrangement, was established for the people to serve it and it to rule over them. In America, the people created the several states (evolving from the original 13 colonies) and then the several states created the federal government. In the words of Lincoln, it was a government of the people, by the people and for the people. Government in America was created as a servant of its citizens, a “bottom up” approach.
The Tenth Amendment is often thought of as the “States Rights” Amendment and a tool that representatives of the soon to be Confederate States of America used to preserve slavery in the days preceding the Civil War – that much is true – but because the argument was used to preserve a reprehensible and evil institution does not invalidate the clear language of the Amendment. The Tenth Amendment established an important hierarchy of power that the federal government only has the powers specifically given to it in the Constitution or given to it (or taken away) by agreement of the several states and both the states and the federal are answerable to the people.
Decades of indoctrination by progressive educators and ideologues resulted in the Tenth Amendment being viewed as the “Dirty Amendment”, that there is something inherently evil about it due to its use in support of slavery – but far from being a “dirty” utterance that must be minimized and ignored, it establishes the second – and perhaps most important – set of checks and balances in a government designed to serve its citizens.