The Tenth Amendment as a Bill of Rights
affiliation not provided to SSRN
Western Political Science Association 2010 Annual Meeting Paper
While it is commonly agreed upon that one of the primary Anti-Federalist objections to the Constitution was the absence of a bill of rights, the significance of that objection is commonly misunderstood. The essential purpose of a bill of rights, for the Anti-Federalists, was to preserve the prerogatives of the several states - those subtle and often fragile political, legal, and social arrangements which evolved over a long period of time at the state level - against the powers of the national government. The Anti-Federalists, finding little comfort in a constitution which did not explicitly reserve powers to the several states, unapologetically sought unambiguous constitutional protection for the prerogatives of the states. The Anti-Federalists underscored state prerogatives pertaining to matters such as liberty of the press, religious liberty, and criminal procedure, especially trial by jury. These liberties were conserved in state constitutions, state statutes, and the common law. Explicit constitutional language for the protection of these prerogatives was culled, not only from states' bills of rights, but from Article II of the Articles of Confederation. For any Anti-Federalists, such a reservation of powers to the states, which would be proposed by the First Congress and ratified as the Tenth Amendment, was effectively an abridged bill of rights.
working papers series
Date posted: March 29, 2010
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