Analysis Of The Original Constitution Of 1788

The original Constitution of 1788 contained very few specific restrictions on the ways in which the power of the national government could be exercised against the people. It guaranteed the right to trial by jury in criminal cases, placed limits on prosecutions and punishments for treason, forbade bills of attainder and ex post facto laws, limited any restrictions on habeas corpus to certain designated emergencies, and prohibited the granting of titles of nobility. But the Constitution that emerged from the 1787 Constitutional Convention contained nothing like a comprehensive bill of rights. Most state constitutions of the time had bills of rights, and many citizen, and members of the Constitutional Convention, expected the new national constitution to have one as well. The state delegations at the Constitutional Convention voted 10-0 against including a bill of rights in the Constitution.

It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone’s rights, but whether it exceeds the national government’s enumerated powers.

In this sense, the Tenth Amendment is “but a truism.” United States v. Darby (1941). No law that would have been constitutional before the Tenth Amendment was ratified becomes unconstitutional simply because the Tenth Amendment exists. The only question posed by the Tenth Amendment is whether a claimed federal power was actually delegated to the national government by the Constitution, and that question is answered by studying the enumerated powers, not by studying the Tenth Amendment. That was the understanding of the Supreme Court for nearly two