When I’m not grading exams, I’m working on the new book about the Bill of Rights. (On Chapter 4 at the moment.) One issue that I’m still working through is when the issue of whether the Bill of Rights was the first eight, the first nine, or the first ten amendments was settled in favor of ten. I have yet to identify a magic moment where ten emerged victorious, though I did find the following passage interesting. It was a dissenting report by segregationists to the Democratic National Platform in 1960:
The Tenth Amendment to the Constitution of the United States is a part of the Bill of Rights equal in force and dignity to the First Amendment and all of the other amendments which comprise the Bill of Rights. When a court or a legislative group or an executive disregards or violates the rights of a state under the Tenth Amendment, thereby the rights of the people under the First Amendment to worship, to read, to speak, to print are jeopardized. A mere majority which can today ignore the Tenth Amendment can tomorrow ignore the First Amendment and all the others.
Of course, this was a dissenting position, but it was the clearest effort made up to that time to prop up the Tenth Amendment through the Bill of Rights. I have yet to find the critical source that made it into the majority position. You would think it would be from something President Reagan said, but I’m not finding anything. Nor does there seem to be a Supreme Court case on point.