Tea partiers have a complicated relationship with the Constitution. They frequently profess their love for the document, yet they also seek to fundamentally alter it, for example by eliminating birthright citizenship and by inserting a crippling balanced budget amendment. However, one section of the document that tea partiers appear to be absolutely smitten with is the Tenth Amendment. Unfortunately, their boundless adoration for the Amendment seems to have prevented them from reading it very carefully.
The Tenth Amendment states: "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." Tea partiers have made truly outlandish claims of late about this short and simple Amendment. For example, both Texas Governor Rick Perry and former Alaska Governor Sarah Palin have declared the "sovereignty" of their respective states "under the Tenth Amendment," with Perry suggesting that secession might be an option for Texas in response to what he sees as overreaching by the federal government. Perry has also used the Amendment as a basis for attacking foundational parts of this country's social safety net -- including such landmark laws as Social Security and Medicare, as well as environmental safeguards -- as unconstitutional encroachments on state rights. Senator Mike Lee has made the similar claim that even federal child labor laws are unconstitutional.
The Tenth Amendment's text does not come close to bearing the weight the Tea Party has thrown upon it. As an initial matter, the Tenth Amendment did not break new constitutional ground. The main point of the Amendment was to reiterate what Article 1, Section 8 of the Constitution already made clear: the Constitution established a federal government of delegated or enumerated powers. As the Supreme Court has noted, the main thrust of the Tenth Amendment is "a truism that all is retained which has not been surrendered" (United States v. Sprague, 282 U.S. 716 [1931]). That is not to say the Amendment is unimportant or devoid of meaning; to the contrary, every Clause of the Constitution should be given meaning, and the Amendment is certainly a reminder that the powers of the federal government have limits. By the same token, no portion of the Constitution should be given meaning it doesn't have.
Second, the Founders and ratifiers of both the 1789 text of the Constitution and of the Tenth Amendment rejected the strict limits on federal authority that characterized the failed Articles of Confederation. For example, a provision of the Articles limited Congress to those powers "expressly delegated" to it. Not only does the Tenth Amendment drop the modifier "expressly," the Founders also insisted upon the Constitution's "necessary and proper" Clause, making clear that every delegated power carries with it the power "to make laws necessary and proper for carrying into execution the foregoing Powers."
Third, in an odd addition to a provision that is portrayed by tea partiers as a clarion call for states' rights, the Tenth Amendment also reiterates, with the phrase "nor prohibited by it to the states," the fact that our Constitution limits not just the powers of the federal government but also the powers of the states themselves. Those limits, combined with Article VI of the Constitution, which (1) makes the Constitution and federal law the "supreme law of the land," and (2) binds state and local officials to an "oath or affirmation" to support the national Constitution, make short work of the tea party's general claim about the Constitution's protection of inviolable state sovereignty.
In spite of the clear evidence to the contrary, many tea partiers continue to argue that the Constitution preserves state sovereignty, appealing in some cases to a mistaken view of history. For example, Governor Perry errs in his book, Fed Up, when he attempts to support this argument by quoting from James Madison in Federalist No. 39, "[e]ach state, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act" (Fed Up, p 23). The quote sounds like support for Perry's strong states rights position until one realizes that the "voluntary act" Madison is referring to is the ratification of the Constitution itself. As Yale Law Professor Akhil Amar has explained, "[a]lthough states would enter the Constitution as true sovereigns, they would not remain so after ratification. The formation of a 'more perfect Union' would itself end each state's sovereign status" (Amar, America's Constitution: A Biography, 33).
The reality of our constitutional history is that the Constitution was ratified because of a deep conviction by Americans, including George Washington, Alexander Hamilton and James Madison, that the federal government established by the Articles of Confederation was far too feeble. The Constitution, in turn, provided vast new powers to the federal government, retained some powers at the state level, and made "We the People" the ultimate sovereign in the American republic.
The Tenth Amendment, like all other Amendments, is a binding part of the Constitution that should be fully respected. However, the tea party's view of the Tenth Amendment is inconsistent with the text and history of the Constitution. When the states ratified the Constitution, they renounced their status as fully-independent sovereigns and endowed the federal government with enumerated but substantial powers. The Tenth Amendment does not give tea partiers, or anyone else, a constitutional basis for rolling back critical laws that protect Americans' health, safety, and retirement security. Tea partiers can love the Tenth Amendment all they want, but only if they read it first.
Research Assistant Ryan Woo co-authored this piece.
Cross-posted at Text & History.
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This is one of the most plausible
arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded
against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [which became the Tenth Amendment."
Any response to tenthers should include this important concept that the Bill or Rights is only a partial list of the people's constitutionally protected rights as the Tenth Amendment attests.
That is the very problem we have today with those whose estimation of the people's liberties is so pinched that if they can't find black letter in the Bill of Rights these people think there is no right. The Tenth Amendment is there to remind us that numerous unnamed rights are secured to the people.
Madison himself was tepid about a bill of rights but thought it might be useful and addressed the question of listing some rights but not others as he introduced the what became the Bill of Rights to the House of Representatives http://www.usconstitution.net/madisonbor.html#Sec10:
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. "
(contd.)
The only problem is, they want to get rid of half of it, ignore and misinterpret the rest of it, and want to add all kinds of ridiculous nonsense to it. But they just love that Constitution!
This what the South fought For, Stats Rights, not the Salve issue. It is good we no longer have Slaves.
Actually, Nixon's "Southern Strategy" (adopted by all Republicans since) was to use code words, wink, wink, to let the southern white racists, enraged by the passage of Civil Rights legislation by the Democrats, know that the Republicans were on their side and supported their desire to return to the good old Jim Crow days, if only the Republicans could have full control of government. That is why former Democrats like Strom Thurmond and Jessie Helms switched parties, and why the south has been voting as a solid Republican block ever since. Saint Ronnie added pandering to the right wing fundamentalist extremists to the Republican strategy, as well. When a party has policies that benefit only the top 1 or 2 percent in wealth, they have to have these strategies in order to get votes from dupes in the other 98 percent of the population.
I am not a teapartier, but states rights must be preserved on certain issues. The activist Supreme Court ruled that California could not impose environmental regulations on its polluters. Basically, that ruling says that the state does not even have the right to clean its own house. The United States must stay united, thus the supremacy of Federal law, but to say that these places are states means they have rights of independence, and keeping ones own house in order, free of pollutants can and should be assumed to be a state right. Also, the rights for people to seek medical care, such as the states that have approved medical marijuana should also be the right of the state to declare. There have to be limits to Federal law. When the Supreme Court ruled that CA could not demand that companies stop polluting, they have overstepped their bounds. At this moment, there are efforts to dismantle the EPA or make it completely ineffective. What is a state supposed to do in its efforts to protect its citizens the rights entitled to them "life, liberty, and the pursuit of happiness?"
If the Republicans are so enamored of a balanced budget, why didn't they object when Bush took the balanced budget and surpluses handed over to him by the Clinton administration, and within months, turned them into unprecedented deficits with his big tax cuts for the wealthy? Oh, I am forgetting something. Bush wasn't black.