If any one will now look back to the records of congress and the courts, for the last eighty years, I do not think he will find a single mention of this amendment. And why has this been so? Solely because the amendment—if its authority had been recognized—would have stood as an insuperable barrier against all the ambition and rapacity—all the arbitrary power, all the plunder, and all the tyranny—which the ambitious and rapacious classes have determined to accomplish through the agency of the government.
The fact that these classes have been so successful in perverting the constitution (thus amended) from an instrument avowedly securing all men’s natural rights, into an authority for utterly destroying them, is a sufficient proof that no lawmaking power can be safely intrusted to any body, for any purpose whatever.
And that this perversion of the constitution should have been sanctioned by all the judicial tribunals of the country, is also a proof, not only of the servility, audacity, and villainy of the judges, but also of the utter rottenness of our judicial system. It is a sufficient proof that judges, who are dependent upon lawmakers for their offices and salaries, and are responsible to them by impeachment, cannot be relied on to put the least restraint upon the acts of their masters, the lawmakers.
Such, then, would have been the effect of the ninth amendment, if it had been permitted to have its legitimate authority.
Section XXVI.
The tenth amendment is in these words:
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.
This amendment, equally with the ninth, secures to “the people” all their natural rights. And why?
Because, in truth, no powers at all, neither legislative, judicial, nor executive, had been “delegated to the United States by the constitution.”
But it will be said that the amendment itself implies that certain lawmaking “powers” had been “delegated to the United States by the constitution.”
No. It only implies that those who adopted the amendment believed that such lawmaking “powers” had been “delegated to the United States by the constitution.”
But in this belief, they were entirely mistaken. And why?
1. Because it is a natural impossibility that any lawmaking “powers” whatever can be delegated by any one man, or any number of men, to any other man, or any number of other men.
Men’s natural rights are all inherent and inalienable; and therefore cannot be parted with, or delegated, by one person to another. And all contracts whatsoever, for such a purpose, are necessarily absurd and void contracts.
For example. I cannot delegate to another man any right to make laws—that is, laws of his own invention—and compel me to obey them.
Such a contract, on my part, would be a contract to part with my natural liberty; to give myself, or sell myself, to him as a slave. Such a contract would be an absurd and void contract, utterly destitute of all legal or moral obligation.
2. I cannot delegate to another any right to make laws—that is, laws of his own invention—and compel a third person to obey them.
For example. I cannot delegate to A any right to make laws—that is, laws of his own invention—and compel Z to obey them.
I cannot delegate any such right to A, because I have no such right myself; and I cannot delegate to another what I do not myself possess.
For these reasons no lawmaking powers ever could be—and therefore no law-making powers ever were—“delegated to the United States by the constitution”; no matter what the people of that day—any or all of them—may have attempted to do, or may have believed they had power to do, in the way of delegating such powers.
But not only were no lawmaking powers “delegated to the United States by the constitution,” but neither were any judicial powers so delegated. And why? Because it is a natural impossibility that one man can delegate his judicial powers to another.
Every man has, by nature, certain judicial powers, or rights. That is to say, he has, by nature, the right to judge of, and enforce his own rights, and judge of, and redress his own wrongs. But, in so doing, he must act only in accordance with his own judgment and conscience, and subject to his own personal responsibility, if, through either ignorance or design, he commits any error injurious to another.
Now, inasmuch as no man can delegate, or impart, his own judgment or conscience to another, it is naturally impossible that he can delegate to another his judicial rights or powers.
So, too, every man has, by nature, a right to judge of, and enforce, the rights, and judge of, and redress the wrongs, of any and all other men. This right is included in his natural right to maintain justice between man and man, and to protect the injured party against the wrongdoer. But, in doing this, he must act only in accordance with his own judgment and conscience, and subject to his own personal responsibility for any error he may commit, either through ignorance or design.
But, inasmuch as, in this case, as in the preceding one, he can neither delegate nor impart his own judgment or conscience to another, he cannot delegate his judicial power or right to another.
But not only were no lawmaking or judicial powers “delegated to the United States by the constitution,” neither were any executive powers so delegated. And why? Because, in a case of justice or injustice, it is naturally impossible that any one man can delegate his executive right or power to another.
Every man has, by nature, the right to maintain justice for himself, and for all other persons, by the use of so much force as may be reasonably necessary for that purpose. But he can use the force only in accordance with his own judgment and conscience, and on his own personal responsibility, if, through ignorance or design, he commits any wrong to another.
But inasmuch as he cannot delegate, or impart, his own judgment or conscience to another, he cannot delegate his executive power or right to another.
The result is, that, in all judicial and executive proceedings, for the maintenance of justice, every man must act only in accordance with his own judgment and conscience, and on his own personal responsibility for any wrong he may commit; whether such wrong be committed through either ignorance or design.
The effect of this principle of personal responsibility, in all judicial and executive proceedings, would be—or at least ought to be—that no one would give any judicial opinions, or do any executive acts, except such as his own judgment and conscience should approve, and such as he would be willing to be held personally responsible for.
No one could justify, or excuse, his wrong act, by saying that a power, or authority, to do it had been delegated to him, by any other men, however numerous.
For the reasons that have now been given, neither any legislative, judicial, nor executive powers ever were, or ever could have been, “delegated to the United States by the constitution”; no matter how honestly or innocently the people of that day may have believed, or attempted, the contrary.
And what is true, in this matter, in regard to the national government, is, for the same reasons, equally true in regard to all the State governments.
But this principle of personal responsibility, each for his own judicial or executive acts, does not stand in the way of men’s associating, at pleasure, for the maintenance of justice;