The Fifth and Tenth Amendments

By Daniel Goldman | Politicoid | 6 Sep 2019


In order to understand government and law, in the United States, we must understand the constitution, but if there are two provisions in the constitution which are of supreme importance, it is the fifth and tenth amendments. Here’s why.

The Fifth Amendment

This article isn’t the first time I’ve written about the fifth amendment. And in some ways, I am adapting one of my articles on Politicoid. But I’m hoping to expand on the importance of the fifth amendment, because it is so important to understand it.

The fifth amendment largely makes the first amendment, the second amendment, the 13th amendment, and the 14th amendment redundant. There are still good reasons to have the first two amendments in the Bill of Rights. The 13th and 14th amendment were written largely because the fifth amendment has not been properly enforced. I will expand on this idea in the second half of the article.

Many people think of the fifth amendment only in terms of “pleading the fifth.” This ignorance is a real tragedy. While it is important to understand that we cannot be compelled to self incriminate, the real power of the fifth amendment rests in the following words: “No person shall be…deprived of life, liberty, or property, without due process of law…” I added the emphasis on “person” because the provision does not say “citizen” but rather “person.”

The Tenth Amendment

The tenth amendment states that “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 makes a number of points clear. The federal government only has those specific powers which have been granted to it by the constitution. There is no such thing as an inherent power of a sovereign nation, held by the federal government. This importance of this point will become clear in a moment.

However, there is such a thing as implied powers. But whether implied or not, the powers held by the federal government are limited to those granted to it by the constitution. Now, the need for interpretation and being implied are not the same thing. So now I can respond to D. Andre’s comment.

That statement is a contradiction — implicit literally means implied, though not plainly expressed. That necessarily involves interpretation of meaning not expressly stated.

So what does it mean for something to be implied? B is implied by A, if and only if, B is a direct logical consequence of A. For instance, if I say that “the sum of two even numbers is even” then even though I did not explicitly state it, the sum of 2 and 4 is even, because the latter is a direct logical consequence of the former.

 

The second half of this article will focus on consequences of the two amendments, especially when coupled together. It may surprise many just how powerful the fifth and tenth amendments are, when you really look at what they say.

Slavery

The 13th amendment states that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” However, what is a slave? A slave can be defined as “a person owned by someone and slavery is the state of being under the control of someone where a person is forced to work for another.” The “person” component is actually very important. We have beasts of burden, even now. Are those not slaves? No. Why not? It’s because they are not people.

Up until the time that the 13th amendment was written, people of African descent were not considered people, at least not fully. If that continued to be true, then not even the 13h amendment would have done anything to end the enslavement of these people. Now let us consider the fifth amendment. A key component of the fifth amendment is that no person shall be deprived of life, liberty, or property, without due process of the law. In the fifth amendment, the constitution already had the necessary framework to ban slavery. All that was required was a shift in what was considered a person.

This realization has a few consequences. First, it shows that a war between the North and South was in no way necessary. What was necessary was a shift in perception. And perception is not changed through force. Second, it shows that another change in perception could have drastic effects. If a group of individuals, now thought of as people, eventually were thought to be less than such, our constitution would no longer protect them. Likewise, if in the future, we expand our view of “people” to include others, perhaps those outside of our own species, our constitution would immediately protect them.

Section adapted from a Politicoid piece published on October 18, 2016

Immigration

And once again, the fifth amendment says no person. It does not say “no citizen.” Going back to implicit vs explicit aspects of the constitution, “no person” implies, by direct logical consequence, that citizens may not have their life, liberty, or property restricted, without due process of the law. It also implies, by direct logical consequence, that non-citizens are protected, at least so long as we accept that non-citizens are people. The fifth amendment is one key aspect of the argument for free market immigration.

But does the power to regulate naturalization imply the power to regulate immigration, as D Andre suggests? It would, if the power to regulate immigration were a direct logical consequence of the power to regulate immigration. But it isn’t. Naturalization is the process by which non-citizens become citizens. Immigration is the process of moving from one country to another, or region to another.

The power to regulate immigration is not necessarily to regulate naturalization, and numerous people who immigrate to the United States never become naturalized citizens. Meanwhile, naturalization could occur, without immigration. If congress wished to do so, they could allow people to obtain naturalization, simply by filling out an online application while living in another country, though it would be somewhat absurd.

So by the fifth amendment, we are free to move where we please, and by the tenth amendment, the federal government lacks the authority to say otherwise.

Secession

I have a more detailed argument on the constitutionality of secession, so I’ll just quickly say that secession is not prohibited by the constitution. Nor is the power to establish the terms of secession granted to the federal government. Therefore, by the tenth amendment, the states, and the people within those states, had the authority to decide whether or not to secede.

Inherent Powers

I mentioned the concept of inherent powers of a sovereign state, in my article on immigration. The Supreme Court has ruled in a number of cases that the federal government has certain powers owing to the inherent powers of a sovereign state, including the power to regulate immigration.

An inherent power is a power that is not found in the constitution, but rather comes from the very nature of being a sovereign state. Can such a power exist? Perhaps, but not according to the constitution, as the tenth amendment states that “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.”

It is clear that the powers that the federal government holds are limited to those that are provided to it by the constitution, either directly or indirectly. Essentially, the sole source of power for the federal government is the constitution. Therefore, either the tenth amendment is null, or there are no inherent powers that the federal government holds.

The War on Drugs and Guns

The same arguments that are used against the control of immigration, and other topics that I’ve already addressed fit right in on the discussion of the war on drugs. The fifth amendment grants people the protection of the rights to life, liberty, and property. Included in these rights is the right to buy, sell, and use drugs. It also includes the right to buy, use, and sell guns, so long as the gun isn’t being used to violate someone else’s rights. In other words, the fifth amendment really covers the second amendment, though the second amendment does have another purpose.

Murder

One final point, which is somewhat morbid, but also rather interesting. Why is murder illegal? Where in the constitution does it say that people can’t kill each other? Again, the fifth amendment reigns supreme here. No person shall be deprived of life, liberty, or property, without due process of the law.

 

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Daniel Goldman
Daniel Goldman

I’m a polymath and a rōnin scholar. That is to say that I enjoy studying many different topics. Find more at http://danielgoldman.us


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