Conservative Political Commentary

...usually with an attempt at historical and economic context

Thursday, December 3, 2009

Amendment X


“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.” – Tenth Amendment to the United States Constitution

It’s X because X is the Roman numeral for ten, but it could be called X because, among members of Congress and the Obama administration, it seems to be largely unknown and certainly ignored.

As the current Congress and Obama Administration extend their tentacles to take in more items and people to control more directly, the Tenth Amendment has become a significant issue. The Constitution clearly limits the authority of the federal government and, just as clearly, the federal government has managed to push the Constitution aside in order to get the power it wants in many instances.

The Tenth Amendment became part of the Bill of Rights because of the concern of some of the Founders, and the states in general, that the federal government, unless specifically restrained, might take over the internal operations of the states, and abuse their authority. Federalists and anti-Federalists agreed that the power of the federal government was limited, but disagreed on the necessity for the Tenth Amendment. [1]

“Thomas Jefferson described the Tenth Amendment as ‘the foundation of the Constitution’ and added, ‘to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.’ Jefferson's formulation of this doctrine of ‘strict construction’ was echoed by champions of state sovereignty for many decades.” [2]

States have occasionally succeeded in thwarting federal laws. A recent example is the REAL ID law that, while on the books, is not being implemented due to state resistance. Twenty-five states, led by Maine, have passed laws nullifying it within their states. [3]

Constitutional questions have arisen as to the federal government’s authority to take over health care as described in the House and Senate versions of Obamacare. There is no specific authority for the federal government to do so. Some argue that the Preamble statement of a purpose “to promote the general welfare” covers this, but if it does, it covers a multitude of possible sins of legislation, being so broad and vague. Or, perhaps the Interstate Commerce clause grants the authority? But is refusing to buy insurance an example of interstate commerce? I think not.

If there is a case to be made for constitutional authority for government-run health care for everyone, it probably would arise from the following:

United States Constitution, Article I, Section 8, Clause 1:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
....
Clause 18:
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”


Lacking any compelling necessity for such a law, it would seem that the Tenth Amendment is strong enough to override the claim that such a law is constitutional.
But who knows how the courts might decide? If this is ruled acceptable, the whole private sector is in danger, because then the government can think up excuses to take over any industry or sector it wants. They’ve already done some of that with the bailouts.

The Tenth Amendment’s effect has risen and fallen over the years from having some impact, to having virtually none (as in the Reconstruction days following the Civil War). [4] But a good many of the states these days are working to dust it off and claim their own sovereignty through nullification laws. Several such laws have been introduced, but most have yet to become law. . Check www.tenthamendmentcenter.com for updates on these activities.

Governor Rick Perry of Texas expresses the concern and frustration of many with the continuously expanding power of the federal government at the expense of states’ rights:



Thirty-eight states have introduced Tenth Amendment resolutions. The are in various stages of consideration, and two (Tennessee and Alaska) have been signed by governors, according to Tenth Amendment Center.

The Tenth Amendment should be a defense against Obamacare, cap and trade and other intrusive federal laws and proposals. The Tenth Amendment is certainly at the heart of the Tea Party protests. More people are becoming aware of their constitutional protections. We can’t really rely on federal officials to live up to their oath of office. They will have to be held to it by citizens.

“The world needs to be reminded that all human ills are not curable by legislation, and that quantity of statutory enactment and excess of government offer no substitute for quality of citizenship.

“The problems of maintaining civilization are not to be solved by a transfer of responsibility from citizenship to government, and no eminent page in history was ever drafted by the standards of mediocrity....”
— President Warren G. Harding



[1] Forrest McDonald; revised by Robert M. Hardaway and Adisa Hubjer, “Amendment X to the U.S. Constitution,” Answers.com at http://www.answers.com/topic/amendment-x-to-the-u-s-constitution

[2] Ibid.

[3] Tenth Amendment Center at http://www.tenthamendmentcenter.com/the-10th-amendment-movement/#realid

[4] “Law Encyclopedia: Tenth Amendment,” Answers.com, see [1].

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