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.