Right Wing Nut House



Filed under: Politics, Tenth Amendment — Rick Moran @ 10:36 am

TENTH AMENDMENT: 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.

Does the US Constitution give the federal government the right to dictate to a state how long it must supply unemployment compensation insurance? Or where it must spend its money on health care? Or how it runs its welfare programs?

It’s called “The Forgotten Amendment” for good reason. While everyone waxes poetic about their love for the Bill of Rights - the first ten amendments to the Constitution - some of us are very selective in which of those amendments we actually recognize and support.

While the left can bore you to death telling you how much they adore the First Amendment and how only the most expansive interpretation of it can be accepted, something sticks in their throat when applying the exact same rationale to the Second Amendment. Here, only the narrowest of definitions should be used (”Militia” means militia, goddamnit!).

And when it comes to the Ninth and Tenth Amendments, liberals have thrown a cloak of invisibility over them. If they have to talk abut them, it is usually to accuse the proponents of these building blocks of federalism of being closet Kluxers. “States rights” has a malodorous stench attached to the concept due to the justification for Jim Crow by southern racists in pre-civil rights days where these misunderstood amendments were used to assert the sovereignty of the state to order its own affairs.

There is no denying this. But should this historical truth necessarily forever and in every circumstance delegitimize those who wish to assert the view that those powers not enumerated in the Constitution are reserved for the states and individuals? Should this be the only definition of states rights — that it means a roll back of civil rights gains?

Obviously, the left wishes to pimp that notion till it cries uncle. Here’s Ed Kilgore doing just that in a post yesterday:

As someone just old enough to remember the last time when politicians in my home southern region made speeches rejecting the Supremacy Clause and the 14th amendment, I may take this sort of activity more seriously than some. But any way you slice it, Republicans are playing with some crazy fire. For all the efforts of its sponsors to sell the “sovereignty resolution” idea as a grassroots development flowing out of the so-called Tea Party Movement, its most avid supporters appear to be the John Birch Society and the Council of Conservative Citizens, the successor to the White Citizens Councils of ill-fame. And given the incredibly unsavory provenance of this “idea,” it’s no surprise that these extremist groups are viewing the “movement” as an enormous vindication of their twisted points of view.

If John C. Calhoun offered the definitive articulation of the nullification theory, his nemesis, President Andrew Jackson, offered the definitive response, which holds true today. He said the doctrine was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”

This wildly exaggerated notion that the Tenth Amendment Movement is largely the creation of Birchers and Kluxers is ridiculous on its face. Neither of those groups has the organization or wherewithal to ramrod an effort that has seen resolutions asserting state sovereignty introduced in 35 states.

Further, bring up Jim Crow is a gigantic strawman. The drive to pass these measures is animated largely by the Democratic Stimulus Bill that is mandating wholesale changes to state law and in some cases, violating state constitutions with mandates for which there will be no funding once federal money is cut off.

Looking at the stim bill last March, Ronald Rotunda writing in the Chicago Tribune pointed out that the federal government was reserving for itself almost unlimited power to dictate to the states:

Because some governors might not accept the money, Congress added a unique provision, in subsection 1607(b): “If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.”

If state law does not give the state legislature the right to bypass the governor, how can Congress just change that law? Where does Congress get the power to change a state constitution?

It might appear quaint to note that the U.S. Constitution does not create a central government of unlimited powers. Congress only has those powers that the Constitution gives it either expressly or by implication. That’s a lot of power, to be sure, but it’s not unlimited.

Kilgore and his ilk are throwing around terms like “nullification” when in actuality, the states only wish to continue to exercise authority in those areas that they have traditionally been granted the power to do so by the Constitution.

It is the federal government that is trying to change things, not the states.

This is not about civil rights, or nullification, or secession, or any other bugaboo with which liberals are trying to smear and besmirch the efforts of state sovereignty supporters. And since the left is positing the ridiculous notion that the exercise of 10th amendment rights by the states threatens the republic, then one is left with the real reason for their gripe; they object to the concept of federalism as it was envisioned by the Founders.

We all know about “enumerated powers” expressed in the Constitution itself. No one is arguing with those. It is the “reserved powers” justified by the “necessary and proper” clause in the the Constitution that are at issue. What “implied” powers does the federal government possess? Liberals seem to be saying that those powers are defined by Congress and the feds alone — anything Congress wants to do relative to the exercise of state powers, it can do.

This is what the Tenth Amendment Movement is seeking to fix; a constitutional basis for the exercise of state authority in matters clearly not the business of the federal government.

Can Congress mandate that states increase the number of weeks that an unemployed worker can receive benefits without also paying for it? Whether you happen to think this is a good idea or not (and I think it was necessary in these hard times), the question of whether Congress can mandate such a change in state law - especially since once the stim bill money is cut off, the states are responsible for increasing taxes to pay for the measure - becomes a matter of state power versus federal power.

Wasn’t the Tenth Amendment designed to keep the federal government from dictating in such a manner to the states while preventing the feds from overriding state law? I am not a constitutional scholar but it makes sense to me that even an expansive, broad minded reading of the Constitution would get into trouble when trying to justify such actions.

I accept the notion of federal primacy where civil rights are concerned, as well as regulatory authority relating to the health and safety of Americans. But as Professor Rotunda mentioned above, this authority has its limits. And the supporters of the Tenth Amendment Movement are seeking to define those limits to prevent the power grab being made by this Democratic Congress and Administration, using the excuse of an economic crisis to aggrandize power unto themselves at the expense of the traditional rights of the state and individuals.

There are several angles that the Tenth Amendment Movement is beginning to play out across the land. In Montana, the state legislature is seeking to assert sovereignty over a limited interpretation of gun rights:

In a bill passed by the Legislature earlier this month, the state is asserting that guns manufactured in Montana and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background check and dealer-licensing rules because no state lines are crossed.

That notion is all but certain to be tested in court.

The immediate effect of the law could be limited, since Montana is home to just a few specialty gun makers, known for high-end hunting rifles and replicas of Old West weapons, and because their out-of-state sales would automatically trigger federal control.

Still, much bigger prey lies in Montana’s sights: a legal showdown over how far the federal government’s regulatory authority extends.

It is fighting federal mandates on state spending that is driving this movement forward, not Bircher paranoia or hopes by the Klan to return to the days of Jim Crow. And how this issue is finally settled will decide the fate of federalism and with it, the limits on power we wish to see on the federal government.

We are a federal republic. It’s about time we started acting like one again.


  1. Good stuff Rick. Lots to think about. Thanks.

    Comment by Chuck Tucson — 5/7/2009 @ 10:51 am

  2. Re: Ronald Rotunda

    “If state law does not give the state legislature the right to bypass the governor…”

    Doesn’t it seem clear that if the State’s law does not provide for this that it wouldn’t actually happen? It seems pretty clear to me that that provision was included for the states that do allow a 2/3 State House majority to be binding and have force of law.

    So my gut reaction is “tempest in a tea pot”. Offering money with certain strings on how it is to be spent is a very common means of federal influence in federations (republic or otherwise).

    Now the Montana firearms situation is much more interesting. I suspect there are going to be certain qualifications that get applied to that by the courts. Specifically to do with certain types of arms due to the realities of personal mobility and the desire to keep that (i.e. not having motivation to set up border checkpoints around Montana).

    Comment by Dwight — 5/7/2009 @ 12:01 pm

  3. That should read:

    “Doesn’t it seem clear that if the State’s Constitution…”

    Comment by Dwight — 5/7/2009 @ 12:07 pm

  4. Thank you. I believe your statement that “the states only wish to continue to exercise authority in those areas that they have traditionally been granted the power to do so by the Constitution” is the key to the whole understanding of the matter.

    The current interest in the 10th Amendment is not about gaining new/improved rights for the states, but rather to roll back the juggernaut of federal government interference in state matters. On difficulty is that the states have not pushed back on this for better than a generation, leaving many younger citizens thinking that the status quo of federal government control was constitutional, or at least legal.

    Comment by Michael — 5/7/2009 @ 12:09 pm

  5. Michael, the broad interpretation of the Commerce Clause, on which much direct federal control is based dates back nearly two centuries. There was a lull in it’s use for some time till it was nearly neutered by Carter v. Carter Coal Company in the early 30’s. But a couple years later two of the judges switched from that extremely narrow interpretation and the pendulum swung hard the other way at SCOTUS.

    It has little to do with whether or not the States, and indeed individuals, aren’t pushing back. I would suggest that they constantly do. It is merely that:
    1) they have taken their licks at the Supreme Court
    2) the indirect influence, such as over the length of unemployment coverage, is NOT direct interference but merely political pressure that ultimately can only be brought to bear by the voters of the State

    In the end the calls “what about the Tenth Amendment?”, especially in the case of the later, are just another means of political saber rattling.

    Comment by Dwight — 5/7/2009 @ 12:54 pm

  6. Exactly what is the difference between what is attempted by subsection 1607(b) and what is currently happening with the bank who (foolishly) accepted TARP funds ?

    They can’t give it back and they are bound the the “ex post facto” provisions.

    Comment by Neo — 5/7/2009 @ 12:57 pm

  7. Ex post facto provisions?

    Comment by Dwight — 5/7/2009 @ 2:01 pm

  8. Point of clarification:
    Militia means Tim McVeigh and his friends in the “thumb” of Michigan. Anybody else know of a Militia in the backwoods of their home state?

    Comment by bsjones — 5/7/2009 @ 2:37 pm

  9. “‘Militia’ means militia, goddamnit!”

    Boy . . . when you say it like that, it sure does sound kooky. Only a real idiot would think militia means militia. I feel so liberated. From now on, I’m going to use ‘militia’ to mean ‘atomic powered pogo stick’. Saint George would be so pleased.

    “Here’s another expression I question: ‘in your own words’. You hear it in classrooms. And courtrooms. They’ll say, “Tell us … in your own words … .” Do you have your own words? Personally, I’m using the sames ones everybody else has been using. Next time they tell you to say something in your own words, say “Nigflot blorny quando floon”.
    George Carlin
    Napalm & Silly Putty

    Comment by busboy33 — 5/7/2009 @ 3:59 pm

  10. “Further, bring up Jim Crow [in the context of the Tenth Amendment] is a gigantic strawman. ”

    Correct, it is a strawman argument.

    The analogy would be to accusing you of being a communist because you believe in free speech includes the right to express communist beliefs. Insert Voltaire quote here.

    Federalism is a KEY component of the architecture of our free society. hats off to those reminding others of its importance. The best government is self-government and the next best government is that which is closest to the people.

    States rights is about the right of states and the people to hold on to their freedom.

    Comment by Travis Monitor — 5/7/2009 @ 9:46 pm

  11. OK, militia is militia, but then so are the people the people; you know, the guys and gals that keep guns and know how to use them. These are the ordinary people that used to make up militias when called to form up, that are now called up or drafted by the US Army, Air Force, Navy or Marines.

    Just plain people: gun-loving, gun-hugging guys and gals–citizens all. We seem to have needed lots of them every few years, people that can shoot straight…and will again and again, which is an odds-on bet.

    Comment by mannning — 5/7/2009 @ 9:48 pm

  12. “Michael, the broad interpretation of the Commerce Clause, on which much direct federal control is based dates back nearly two centuries.”

    Nonsense. Wickard decision was important in 1940s precisely because it was new; that New Deal FDR-appointed SCOTUS was the first SCOTUS to decide thusly in favor of the commerce clause being a Congressional blank check for economic regulation.

    Comment by Travis Monitor — 5/7/2009 @ 9:51 pm

  13. Yeah, it would be cuh-ray-zee to suspect the Party of the South (formerly the GOP,) the party that (for a while) achieved majority by overt and later covert race-baiting, the party that still contains within its ranks virtually every person who answers in the negative when asked, “would you vote for a black man,” the all-white, all-anglo, all-straight party of having, shall we say, obscured motives.

    Did conservatives call for states rights when we were talking about medical marijuana? No? Not so much? How about assisted suicide? How about in Bush v. Gore? Terri Schiavo? Have conservatives not called repeatedly for national laws to outlaw all abortions? Have they not pushed legislation to ban gay marriage, regardless of state’s rights?

    You’re as big a bunch of hypocrites on this as you are on balanced budgets. You believe in state’s rights when it gets you what you want, and set it aside when it gets in your way. The same old, same old.

    Comment by michael reynolds — 5/8/2009 @ 2:57 am

  14. @Travis


    1. There was a case in the 1830s where the Commerce Cause was found to apply to a company that had no operations outside of the borders of New York state. As well it found that the clause extended past the simple exchange of goods. The Carter v Carter Coal arguably strained precedent in it’s logic.

    The switch on the matter occurred a year prior to any Roosevelt appointments. Maybe the year of his first appointment? But it definitely required sitting judges to change their mind. Roosevelt appointed a lot of judges (although less per year than Hoover prior, 8 in 12 years vs 3 in 4 years). But he didn’t appoint any till his second term.

    P.S. Jim Crow isn’t directly relevant. Unfortunately there are modern parallels, one specifically in niggers=homos.

    Comment by Dwight — 5/8/2009 @ 7:05 am

  15. I just looked it up. The first SCOTUS retirement under Roosevelt was after this ruling. Van Devanter, who dissented on the case incidentally, retired only after the end of that session.

    Comment by Dwight — 5/8/2009 @ 7:47 am

  16. I wrote about this after Idaho joined more than 30 other states who’ve passed resolutions. Of course the neolibs will cry “racism!” But I think the movement to restore states’ rights comprises a combination of issues–from matters such as strings for federal money (Obama just threatened to cut California off), to late term abortion and UN policies that (now that the Dems permitted it) allow taxes to be levied directly on US citizens for UN programs.

    Intuitively I’d say the movement stemmed from the Ron Paul sector of the party and also from groups that have pushed this for years.

    And it has nothing to do with racism. The federal government is the only obese entity neolibs love.

    Comment by Kay B. Day — 5/8/2009 @ 8:19 am

  17. BTW that “1830s” is not a typo…although it is incorrect. It was the 1820s. Here is the case.

    If you don’t bother reading the whole of it (I don’t see a summation handy) here is an interesting excerpt regarding the Commerce Clause.

    We are now arrived at the inquiry-What is this power?

    It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.

    Comment by Dwight — 5/8/2009 @ 8:21 am

  18. SCOTUS says: I am altering the deal. Pray I don’t alter it any further.
    Yeah, it would be cuh-ray-zee to suspect the Party of the South (formerly the GOP,) the party that (for a while) achieved majority by overt and later covert race-baiting, the party that still contains within its ranks virtually every person who answers in the negative when asked, “would you vote for a black man,” the all-white, all-anglo, all-straight party of having, shall we say, obscured motives.

    Someone needs to review his history. Bull Conner and his friends were all Democrats. There are still plenty left.

    Comment by Locomotive Breath — 5/8/2009 @ 8:24 am

  19. @Locomotive Breath

    Here for your reference is a handy list of States admitted [the first time] with that 1824 precedence in place.

    West Virginia
    North Dakota
    South Dakota
    New Mexico

    Comment by Dwight — 5/8/2009 @ 8:55 am

  20. This is my (least?) favorite abuse of the Commerce Clause

    The migratory bird rule. In 1985, an EPA [Environmental Protection Agency] internal memorandum concluded that CWA [Clean Water Act]jurisdiction could be extended to include isolated wetlands that were or could be used by migratory birds or endangered species. In 1986, the COE [Corps of Engineers]issued memoranda to its districts explaining that the use of waters by migratory birds could support the CWA’s jurisdiction. In 1993, the United States State Court of Appeals for the Seventh Circuit agreed, holding that isolated wetlands actually used by migratory birds presented a sufficient connection to interstate commerce to give the EPA and the COE jurisdiction under the CWA.


    Got it? Migratory birds conduct interstate commerce.

    Comment by Locomotive Breath — 5/8/2009 @ 9:22 am

  21. Got it? Migratory birds conduct interstate commerce.

    Either you are being very disingenuous with that statement or you really haven’t given this much thought. Birds hunting [tourism] is a business that relies on these birds. What happens to these bird populations in other states impacts how many are available, and therefore has direct impact on the local bird hunting.

    Little wonder they didn’t need to go to the Supreme Court to get that straight, as it’s pretty straightforward.

    Comment by Dwight — 5/8/2009 @ 9:52 am

  22. >>Little wonder they didn’t need to go to the Supreme Court to get that straight, as it’s pretty straightforward.<<

    Speaking of the Supreme Court, recent actions from that branch of the Federal government have also spurred the growth of the 10th Amendment Movement.

    The case last year in Lousiana, where the SC was asked for a ruling on whether the death penalty was OK to use in a case of child rape, is a perfect example. The Court should have declined to hear the case, as it is clearly the states authority to set punishments for crimes within its borders. Instead, it heard and made a ruling.

    If the court wanted to declare the death penalty cruel and unusual, and therefore make it off limits in all states, it could have done so. But it had no business telling Louisiana what penalty is appropriate for what crime.

    With all 3 branches of government whittling away at this amendment, the Movement may be more important than it seems on the surface.

    Comment by Bob — 5/8/2009 @ 10:26 am

  23. Read the link. Not at all straightforward.

    With the enactment of the federal water pollution control amendments of 1972 (more commonly known as the CWA), the federal government adopted a very aggressive stance towards the problem of water pollution. Broadly speaking, the CWA essentially eliminates the discharge of any pollutants into the nation’s waters without a permit. Section 404 of the CWA makes illegal the discharging of dredge or fill material into the “navigable waters of the United States” without obtaining a permit from the Secretary of the Army acting through the Corps of Engineers (COE). Until 1975, the Corps construed the term “navigable waters” to mean waters that were actually navigable. In accordance with regulations promulgated in 1975, however, the Corps expanded its jurisdiction to “other waters” of the United States, including streams, wetlands, playa lakes, and natural ponds if the use, degradation or destruction of those areas could affect interstate commerce. A series of court decisions beginning in the mid-1970s also contributed to the COE’s increasing jurisdiction over wetlands. Indeed, in 1983 one federal court held that the term “discharge” may reasonably be understood to include “redeposit” and concluded that the term “discharge” covered the redepositing of soil taken from wetlands such as occurs during mechanized land clearing activities. Furthermore, since 1975, the COE and the Environmental Protection Agency (EPA) have defined “waters of the United States” such that the agencies assert regulatory authority over isolated wetlands or wetlands not adjacent to “waters of the United States” if a link exists between the water body and interstate commerce. This interpretation has been upheld judicially.

    Which is why they claim authority of a puddle in a farmer’s field.

    Comment by Locomotive Breath — 5/8/2009 @ 10:44 am

  24. Sorry, you are right. I should have followed through to the link. You’re [even more than I suspected] bullshit statement through me off.

    But I don’t find the navigable waters argument surprising in the least:
    1) You can indeed navigate wetlands.
    2) Water tends to flow downhill…a long ways.

    This isn’t some super special alien logic. The US isn’t the only federation that has come to the same conclusion. It’s quite natural to come to this conclusion given the physical realities of how shit works.

    Comment by Dwight — 5/8/2009 @ 11:02 am

  25. #18

    No, I have my history pretty straight. Yes, the Democrats were the party of race-baiting until they bequeathed that job to the GOP, which took it over enthusiastically.

    Comment by michael reynolds — 5/8/2009 @ 12:09 pm

  26. In 2010, it is imperative that we send a message to Washington D.C. and elect true Constitutional liberty candidates, such as:

    1. R.J. Harris in Oklahoma for the U.S. House: http://rjharris2010.blogspot.com/2009/04/wake-up-america-its-time-to-fight-for.html & http://www.rjharris2010.com/

    2. State Senator Randy Brogdon for governor of Oklahoma:

    3. Ray McBerry for governor of Georgia:

    4. Debra Medina for governor of Texas:
    http://www.runmedina.com/ & http://debramedina.us/

    5. Adam Kokesh in New Mexico for the U.S. House:
    http://draftkokesh.com/ & http://kokesh.netboots.net/

    6. Peter Schiff from Connecticut for the U.S. Senate:

    7. Dr. Rand Paul from Kentucky for the U.S. Senate:

    Comment by Nick — 5/9/2009 @ 12:21 pm

  27. It seems like you’re saying that the purpose of the 2nd is to allow the people to develop expertise with guns, so that when they get called up or drafted into the military they will be well versed in weapondry.

    But the military trains its recruits in how to use weapondry. Assuming there is a draft or a call to arms, they don’t just take the gun owners — they take the gun owners and the non-gun owners alike. If the purpose was to insure that the citizenry are “pre-trained” in the use of guns, then making gun ownership voluntary seems to defeat the purpose.

    The Amendment makes perfect sense when you put it in the context of the time: There was no Army/Navy/AirForce/Marines. If the nation needed a military, it summoned the State mititias. They didn’t have stockpiles of weapons either, so the guns the militia members owned were the bulk of the ones used to fight wars.

    Comment by busboy33 — 5/9/2009 @ 6:59 pm

  28. Comment #26 was supposed to be directed to manning @ #11

    My apologies for not including that in the comment.

    Comment by busboy33 — 5/10/2009 @ 3:42 am

  29. Great informative post, but I must correct the statement attributed to the left: “”Militia” means militia, goddamnit!” What they REALLY say is, “It says ‘Militia’ and that means whatever we want it to mean,” while ignoring the original definition, ignoring the original intent of the Amendment, ignoring the clear language used elsewhere, ignoring the writings of the time that clearly defined both “militia” and the Amendment as an individual Right, and ignoring individual rights entirely while creating a government right — THIS ONE TIME AN NOWHERE ELSE.

    Don’t let ‘em redefine the Constitution, even in a throwaway quote. OK?

    Comment by DoorHold — 5/12/2009 @ 6:02 pm

  30. Congratulations Mr. Moran very eloquent, the 10th Amendment as important as it was necessary to get the states to accept the Constitution has been ignored since the courts of Brennan and Brown vs Board of Education, and it was the regulation of interstate commerce as an excuse that the Supreme Court gave themselves jurisdiction in education which had always been a state matter. Not to say that the outcome of Brown vs board of Education voiding the separate but equal precedent of Plessy vs Ferguson was not a good outcome, it was. But if you really care about the Constitution where our inalienable rights are protected, then the ends do not justify the extralegal means to get to non-discrimination in education by trampling on state’s rights in the 10th Amendment

    Comment by Redbeard777 — 5/12/2009 @ 8:08 pm

  31. Bold and insightful post; The authors clarity on the issue of the american activism council and truth it brings to bear on the prospects for the future give us all reason for hope. The question is: Are people ready to hear the good news yet? I for one AM!

    Way to go, we’ re all behind you, and were all in this together.

    Comment by Gaberiel Garcia — 5/13/2009 @ 11:10 am

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