Tenth Amendment: Power From the People

Chapter 1: Natural Rights are the Foundation. 

In a speech at the hotly-contested Massachusetts ratifying convention on Feb. 5, 1788, Theophilus Parsons affirmed one of the central principles from America’s revolutionary tradition.

“No power was given to Congress to infringe on any one of the natural rights of the people by this Constitution; and, should they attempt it without constitutional authority, the act would be a nullity, and could not be enforced.” [emphasis added]

No one asked Parsons what he meant by “natural rights” because everyone knew what he was talking about. That is, all human beings are by nature free and equal, and the only legitimate government is one that is derived from the “consent of the governed.” 

The philosophy underpinning the entire American system rests on a foundation of natural rights. Thomas Jefferson put those principles into words in the Declaration of Independence. It made clear that the moral order, defined by our natural rights, comes first. The political and legal order, which was structured to help ensure that those rights could thrive, comes second.

But Thomas Jefferson didn’t invent these ideas. In a letter to Henry Lee, he noted that the object of the Declaration was “not to find out new principles, or new arguments.” But rather, to express the “harmonizing sentiments of the day,” as they were understood from people such as “Aristotle, Cicero, Locke, Sidney, Etc.”

These ideas were, so to speak, “in the air” for many years.

In 1764, James Otis, Jr. put it this way in The Rights of the British Colonies Asserted and Proved:

“The Colonists are by the law of nature free born, as indeed all men are, white or black.”

John Dickinson’s Letters from a Farmer in Pennsylvania, published in 1767 in response to the hated Townshend Acts, were the most widely-read documents on American liberty until the publication of Thomas Paine’s Common Sense in January 1776. They earned him the name “Penman of the Revolution.” In the last of these 12 letters, Dickinson expanded on this budding natural rights tradition.

“Let these truths be indelibly impressed on our minds – that we cannot be HAPPY, without being FREE – that we cannot be free, without being secure in our property – that we cannot be secure in our property, if, without our consent, others may, as by right, take it away”

While it might be one of the least-known documents from the revolutionary era, The Rights of the Colonists by Samuel Adams may have had the greatest impact on the members of the Second Continental Congress. As noted in Life of Samuel Adams, “Upon this paper was based all that was written or spoken on human liberty in the Congress which declared independence.”

Approved by Committee of Correspondence to the Boston Town Meeting (Nov. 20, 1772), it started with this:

“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.”

Life. Liberty. Property. And the right to support and defend.

These are natural rights. And they are derived from the “first law of nature,” as Adams described it.

The “Father of the American Revolution” was not just building a case for putting natural rights front and center, he was reiterating and expounding on what so many Old Revolutionaries wrote years before.

This natural rights foundation drove an evolution in the understanding of “sovereignty” in American political thought.  

When people today talk about the Revolution, they generally mean the war with the British. But a more fundamental revolution began long before the first shot was fired, ultimately driving the American colonists to seek independence. It was a revolution of thought based on natural rights, and it radically altered the conception of “sovereignty” – or final authority, which had always rested in the hands of a single person or a small group of rulers.

In an 1818 letter to Hezekiah Niles, John Adams described the American Revolution in just such terms.

“But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations. … 

This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.” [emphasis added]

As the founders and old revolutionaries helped build and expand on the idea of natural rights, this led to a radical notion that drove the colonists to eventually part ways with England – the idea that government doesn’t hold sovereignty, or final authority. If people have natural rights that cannot be violated, it follows that government has limits and, in fact, can only exist by the “consent of the governed,” as Jefferson asserted in the Declaration.

In fact, the idea goes all the way back to the earliest colonial settlements. The Mayflower Compact reflected these ideas. By signing it, the parties did two things: First they set forth their common goals. Then, to accomplish their goals, they agreed to “combine ourselves together into a civil body politic . . . and . . . enact . . . such just and equal laws . . . as shall be thought most meet [appropriate] and convenient for the general good of the colony; unto which we promise all due submission and obedience.” 

In other words, the signatories agreed to establish laws by common consent.

This conception of political power served as the foundation for the constitutional system the United States would eventually adopt.

In a speech during the Pennsylvania ratifying convention, James Wilson eloquently summed up this revolutionary American understanding of sovereignty.

“The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed, the superiority, in this last instance, is much greater; for the people possess over our constitutions control in act, as well as right.” (26 Nov 1787) [Emphasis added]

This reaffirmed George Mason’s April 1775 Remarks on Annual Elections for the Fairfax Independence Company:

“In all our associations; in all our agreements let us never lose sight of this fundamental maxim – that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour.”

Natural Rights. Sovereignty. Final Authority. 

The goal was always to support and advance liberty, which we’ll cover next.