Positive Liberty

I’ve argued many times that the Constitution was adopted by a single people–the “people of the United States”–as opposed to being adopted by the states as sovereign entities grouped by a treaty. Randy Barnett’s new article on the Ninth Amendment has an interesting note supporting this contention. He points out (p. 79-80) that the Confederate Constitution adopted the Tenth Amendment, but altered the wording slightly:

The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.

The addition of the word “thereof” is interesting, because it shows that the drafters of the Confederate Constitution thought it at least arguable that the original Tenth Amendment reserved rights ot the people of the United States, as opposed to the people of each state. The same is true of the Ninth Amendment, which the Confederate Constitution changed from “retained by the people” to “retained by the people of the several States.” To the Confederate Constitution’s drafters, “the people” was at least arguably “the people of the United States,” meaning that the drafters understood that the Constitution of the United States was not a treaty between sovereign states.

I had not know this before, and although it’s not exactly conclusive, I think it’s interesting additional evidence for my (and James Madison’s, and Patrick Henry’s) reading of the Constitution.

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