Bill of Rights: Forgotten Role of the 10th Amendment in Its Creation
The Bill of Rights was born from intense battles between Federalists and Anti-Federalists over delegated and reserved powers. This clash not only shaped its contested origins but also left its true purpose misunderstood to this day.
1. Initial Efforts Rejected
During the Philadelphia Convention on Sept. 12, 1787, George Mason proposed adding a declaration of rights to the Constitution, but his motion was overwhelmingly rejected. Only Massachusetts abstained from voting against it.
Just three days later, Edmund Randolph proposed a new approach: allow state conventions to submit amendments for consideration in another general convention.
“That amendments to the plan might be offered by the State Conventions, which should be submitted to and finally decided on by another general Convention.”
Yet this motion was rejected unanimously, signaling the deep reluctance among the framers to entertain such changes.
After the Constitution was sent to the Confederation Congress, Anti-Federalists like Richard Henry Lee took up the fight for a Bill of Rights. Lee passionately argued for attaching amendments before sending the document to the states for ratification, saying, “To insist that it should go as it is without amendments is like presenting a hungry man 50 dishes and insisting he should eat all or none.”
Despite Lee’s fervent efforts, the Constitution was sent to the states without any amendments.
2. The Federalist Argument
During the ratification debates, Federalists such as James Wilson, Tench Coxe, and Alexander Hamilton argued that listing specific rights could be redundant – or even dangerous – because it could imply that the government had powers beyond those explicitly granted.
Wilson’s State House Yard Speech emphasized that the federal government could only exercise powers expressly delegated to it, making a Bill of Rights “superfluous and absurd.”
“Every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed Constitution: for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence.”
In other words, the federal government would only be authorized to exercise those powers delegated to it in the constitution. In that structure, why add a declaration, Wilson’s argument suggested, that the government is not authorized to do what it’s already not delegated a power to do in the first place?
As Tench Coxe explained:
“The old federal Constitution contained many of the same things, which from error or disingenuousness are urged against the new one. Neither of them have a bill of rights, nor does either notice the liberty of the press, because they are already provided for by the State Constitutions; and relating only to personal rights, they could not be mentioned in a contract among sovereign states.”
Coxe provided an example, by pointing out that “there is nothing in the new constitution to prevent a trial by jury.”
In Federalist 84, Hamilton famously warned that listing rights could imply that any unlisted rights were unprotected, a dangerous precedent.
“I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”
He continued, citing a lack of power over the freedom of the press as an example of something not delegated to the federal government in the constitution, and thus, unnecessary to include in a bill of rights.
“For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
Hamilton forcefully argued that under this structure of delegated and reserved powers, “the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.”
3. Anti-Federalist Rebuttals
However, Anti-Federalists weren’t convinced, not even close.
In the weeks following the Philadelphia Convention, George Mason’s objections were widely circulated. His first and foremost concern was “There is no Declaration of Rights.”
A week after James Wilson’s speech dismissing the need for a Bill of Rights, the Federal Farmer published his fourth essay. In it, he directly challenged the Federalist claim that explicit protections were unnecessary under the Constitution’s system of delegated and reserved powers.
“It is said, that when the people make a constitution, and delegate powers, that all powers not delegated by them to those who govern, is reserved in the people”
After restating the Federalist argument, Federal Farmer drew attention to how this principle was already implemented under the Articles of Confederation, where Article II explicitly reserved rights and powers to the states. The new Constitution lacked such an express reservation, raising concerns that this safeguard was being deliberately abandoned.
“And that the people, in the present case, have reserved in themselves, and in there state governments, every right and power not expressly given by the federal constitution to those who shall administer the national government.”
Federal Farmer then argued that Wilson’s explanation of delegated and reserved powers was not an objective truth. Instead, politicians – then and now – tend to adopt whichever view best serves their political goals. This ambiguity makes explicit protections all the more necessary to prevent abuse.
“It is said, on the other hand, that the people, when they make a constitution, yield all power not expressly reserved to themselves. The truth is, in either case, it is mere matter of opinion, and men usually take either side of the argument, as will best answer their purposes.”
He then closed with the central warning: governments inevitably seek to expand their own power, especially in areas where the limits of authority are unclear. To counteract this tendency, Federal Farmer insisted that wise constitution-makers explicitly define how powers are delegated and reserved.
“But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favorably for increasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefully described the powers parted with and the powers reserved.”
In the Virginia Ratifying Convention, Patrick Henry argued that this federalist view of delegated and reserved powers was novel – because it had always been the other way around.
“I repeat, that all nations have adopted this construction – That all rights not expressly and unequivocally reserved to the people, are impliedly and incidentally relinquished to rulers; as necessarily inseparable from the delegated powers. It is so in Great-Britain: For every possible right which is not reserved to the people by some express provision or compact, is within the King’s prerogative.”
For Patrick Henry and many other Anti-Federalists, this new kind of system – without an express declaration – dangerously left the reservation of rights and powers to implication:
“If you intend to reserve your unalienable rights, you must have the most express stipulation. For if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.”
A stark example from the Articles of Confederation – which was adopted during the fight with Great Britain – emphasized his point: unless the Constitution included a reservation of rights and powers as had been done under the Articles, the federal government would be far more prone to abuse of power.
“How were the Congressional rights defined when the people of America united by a confederacy to defend their liberties and rights against the tyrannical attempts of Great-Britain? The States were not then contented with implied reservation. No, Mr. Chairman. It was expressly declared in our Confederation that every right was retained by the States respectively, which was not given up to the Government of the United States.”
Responding to the idea that a bill of rights was “superfluous” and unnecessary because the nature of the Constitution was one of delegated and reserved powers, Richard Henry Lee agreed, with an important caveat.
He noted that a bill of rights was “not necessary in the Confederation because it is expressly declared that no power should be exercised, but such as is expressly given.”
Here, Lee was referencing Article II of the Articles of Confederation, the precursor to the 10th Amendment.
“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.”
Clear language about delegated and reserved powers so “no constructive power can be exercised,” Lee noted, was the fundamental principle at hand. He said preventing such misconstruction of power “is the great use of a bill of rights.”
In short, Richard Henry Lee took a position similar to that of Alexander Hamilton. As long as it was expressly declared that the powers delegated were the limit of powers that could be exercised, then the entire document – or just Article II of the Articles of Confederation – could function as a “bill of rights.”
Thus, a full Bill of Rights wasn’t even needed under the Articles of Confederation because it was spelled out that what wasn’t delegated, was reserved.
The 10th
For much of the ratification process, Federalists insisted that the Constitution be approved or rejected in its entirety, vehemently rejecting any suggestions for amendments. This stance quickly changed when it became clear that Massachusetts would likely vote against ratification.
A loss there – Federalists understood – would send them reeling in states where it was expected to be a very close call at best – like New York and Virginia. In other words, the entire proposal was close to being doomed.
That was when Federalists made a deal with two powerful, but mostly silent, likely opponents – John Hancock and Samuel Adams: Support the Constitution if the ratification included a number of recommended amendments.
On Feb. 6, they did just that, and the very first recommended amendment was a precursor to the 10th Amendment.
“First. That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.”
This language was crucial in addressing Anti-Federalist fears that the Constitution would lead to unchecked federal power.
South Carolina quickly followed their lead with a similar recommended amendment
“This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”
And on June 21, New Hampshire sealed the deal in favor of ratification by also including as their first recommended amendment the same precursor to the 10th Amendment from Massachusetts.
Virginia, and then New York both followed suit, also with precursors to the 10th prominently included in their lists of recommended amendments.
In the end, the debate over a bill of rights – and ratification itself – boiled down to an explicit line in the sand between delegated and reserved powers.
It’s no wonder that Thomas Jefferson, who repeatedly approved of “the plan of Massachusetts” later called the 10th Amendment “the foundation of the Constitution.”
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