Saturday, August 1, 2009

10th Amendment Battle Lines

The battle lines over states' rights are beginning to form. Citing the 10th Amendment (yes, the actually-part-of-the-constitution kind of 10th Amendment) states' rights advocates, including not just governors and state legislators, assert the federal government has pushed too far beyond its constitutional limits. This argument asserts the continued federal overgrowth over decades past has led the United States government to boundlessly trump the rights of the states and the people. It is rather easy to reach this conclusion based on the actual text of the 10th Amendment, which 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.

What is apparently a "right wing" interpretation of this amendment is that the federal government cannot act where it is not specifically given power to act, and that power is defined in the main body of the constitution; everything else is off limits. This is the fundamental tenet of Federalism.

On the other side of the battle is a massive effort to grow the federal government even further. Federalism was set up to protect the people against tyranny. The effort to grow federal control is therefore, wittingly or not, an effort to strengthen that tyranny. And it is bolstered by journalists not at all concerned about their own pretense of integrity and impartiality.

Evidently, we've forgotten what federalism is, and what it means to be a state. On July 31, 2009 CNN aired a report on this 10th Amendment movement. In this report, with anchors John Roberts and Carol Costello, we are given an excellent example as to the problems of the anti-states' rights argument.

Most of us like to think of ourselves as normal. This includes our beliefs. CNN's staff and crew are no different from the rest of us in this regard. And so when CNN asked for viewer response to a story it seems only natural that their predominantly left wing audience responds accordingly - and that CNN anchors would consider this response as "most people".

ROBERTS: Now, you would think- because states’ rights advocates are so strong in their opinions that the opinions- we’ve been asking for comments, right? Therefore, you would think that most people would be in favor of states’ rights, but it’s running, to a large degree, the opposite way.

COSTELLO: Oh, yeah. But my favorite comment so far- you know, ‘asking for states’ rights is asking, you know, the children to be the parents.’


COSTELLO: It’s comparable to that.

ROBERTS: Somebody else wrote in and said, “We’re the United States, not the divided states.’

We have here selected statements from members of CNN's predominantly left wing audience affirming their ignorance of federalism and statehood. And, of course these journalists can claim "we didn't say it" as if that were relevant, particularly with Costello's own admission that she liked a particular sentiment.

So what's the problem here? Federalism, after all, is a system in which the power to govern is shared between national and central (state) governments, creating what is often called a federation. The European Union might be an example of this. Each member of the European Union is its own sovereign country, but it should be no surprise that even this national distinction is quickly eroding. I expect to see within my own lifetime the notion that France or Germany or the U.K. or any member nation in the EU should be allowed to make their own laws independent of the EU treated as an absurdity. That's the problem with Socialism, state and individual rights are usurped by a national government.

And that is precisely what has happened in the United States. Through decades of being taught too little about American history and civic duty American society has been cultivated to think the Federal government is supreme over the states in all matters, and that the states are merely provincial denominations of that national government. Now advocates of states' rights are largely portrayed as right wing kooks by both Congressional Democrats and by left wing journalists.

But what about the "Supremacy Clause" you say? It's clear that when a state law conflicts with a federal law, the latter is the "supreme law of the land" as stated in Article VI of the constitution. This is in the context of a federal law being legal in its own right. No where in the constitution do we see authority for the federal government to impose itself in areas not explicitly granted it (a limitation imposed by the 10th Amendment), such as acts of benevolence, education, retirement and certainly not health care. Today Congress acts as if there are no bounds to the areas which it can legislate. A limitless government is precisely what our founding fathers wanted to avoid.

At its inception the United States of America was a small federal government designed to handle several specific tasks, such as interstate commerce and treaties with foreign governments. The individual states were to be otherwise regarded as independent and sovereign countries, on the same level as England, Russia, or any other nation. New Yorkers would have thought of themselves as citizens of the nation of New York. Federalism, as written in the Constitution by America's founders, did not establish a parent/child relationship between the federal government and the state governments. It separated powers along distinct lines: the federal government could do some things and yet was explicitly denied authority to do other things. The federal government does not have authority to do anything or what ever it deems as the "general welfare".

But it should not be assumed historical and civic ignorance are the real problem here, though they contribute a great deal to it. As seen in the comments given to us in the CNN news story mentioned above, and in the brief commentary offered by the anchors, those opposed to states' rights often just don't care about the reality of the situation. They want a centralized national government to be in control. Federalism no longer means powers separated between the states and the national government, now it means a parent/child relationship between the two, with the national level government treated as the parent.

Indeed, The 10th Amendment was great idea, but there is An Impending Showdown between the federal government and the states.

Let us not presume our individual liberty is uninvolved in this conflict. After all, individual liberty was the whole point of the constitution. Does our freedom have a place in a Socialist society?


  1. A meaningful discussion of the 10th Amend. cannot take place without a discussion of the limits of the interstate commerce clause.

    It is the US Supreme Court's interpretation of that clause during and after FDR's administration, combined with the federal supremacy clause, that stripped the 10th Amend. of any real meaning.

    So, what, in your view, is the proper understanding of the meaning of the interstate commerce clause?

    Does Congress have the constitutional authority to build/fund interstate highways? Does it have the authority to enact the "cash for clunkers" program?

    Since nearly anything can be said to effect interstate commerce, what isn't included within Congresses "delegated" powers? Not much, according to post-FDR US Supreme Court decisions.

  2. I would say a "proper understanding" of the commerce clause would depend on attitude. Clearly, rendering portions of the constitution moot produces internal conflict, and so legislation/interpretation causing this conflict should not be permitted. Also, what ever laws are passed by the federal government should respect the sovereignty of the states, just as with any foreign nation. To treat the states as provinces of the United States (child entities as related to a parent federal government) is clearly beyond the language of the constitution, including the "necessary and proper" clause of Article 1.

    No, Congress does not have the constitutional authority to enact the Cash for Clunkers program, but apparently it has traditional authority and consent of the governed. If the states consent to allowing the fed to build interstate roads I don't see a problem with it. But I don't see a good reason for the states to allow that, as it merely invites further federal interference (i.e. the former federal speed limit). They should have built their own portions of such roads and maintained autonomy over that, just as Canada did/does.
    Can you imagine the U.S. trying to impose a speed limit in Canadian territory?

    As you say, not much is beyond the authority of the federal government with the FDR attitude.

  3. I think you are on to something with the "rendering portions of the constitution moot" thought. Certainly, the 10th amend. was ratified after the insterstate commerce clause, so if anything, the commerce clause should yield to the 10th amend., not the other way around, if the two are in conflict.

    However, look at the actual language of Article I, Section 8, Clause 3. "[The Congress shall have the power] to regulate commerce...among the several states...." What does that mean?

    When I read it for the first time back in jr. high civics class, I thought it meant that Congress could decide trade disputes between the states. I thought that it dovetailed with Act. III, section 2, "The judicial power shall controversies between two or more states..." However, it appears that the framers didn't argree with that interpretation. Instead, they viewed the commerce clause more broadly than I did.

    So, if Congress has an explicitly granted power to regulate commerce among the several states, what sorts of things may Congress do with that power? The 10th amend. didn't repeal the commerce clause, so it must mean something.

    Does the interstate commerce clause give Congress the authority to criminalize locally grown marijuana even if the state says that doing so is okay? I would say, "maybe so." But, if so, then the Congress would also have the same authority to regulate any other commodity, like low-gas-mileage vehicles.

  4. I'm inclined to think "among" the several states should be interpreted the way you originally did in jr. high. Notice in the situations you mentioned there was always the context of more than one state being involved - "among" regarding the states' involvement with each other, treating states as separate sovereign entities.

    Today Congress seems willing to regulate anything in any state, even to the point of regulating what any one state can do - "among" interpreted as within, without and through, treating states as denominational territories of one central government, not as separate sovereign entities.

    I would think "regulate commerce...among the several states...." should be read as no different than this alteration: "regulate commerce...among foreign nations...." I would hardly read this to mean the USA could tell Canada what it can and cannot make and sell among its own people, but certainly the USA has the right to decide what to allow to cross its borders. As such I would have no problem with California being prohibited from selling marijuana across state borders, but telling California it cannot permit that product to be produced or sold within its own borders seems troublesome to me.

    I think it's called the "interstate commerce" rather than the "intra-state" commerce clause for a reason.

    Notice Art. 8, section 2:
    "To borrow money on the credit of the United States" - which establishes the United States as an entity which engages in commercial exchange


    section 3:
    "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes" - it does not say "with" the several states, as though the USA were engaging in commerce with the states, but rather "with foreign nations" so that the individual states do not engage in commerce with foreign nations.

    It is indeed a curious and tenuous distinction. The USA can regulate what enters its borders, even "its" internal borders, as if the state borders were federal land. However, "among" the states - they can engage in commerce with each other, and the fed can regulate what crosses borders, but not what the states do within their own borders (as far as commerce goes).

    In other words, if a law can be construed as to render state sovereignty moot (in general, not in specific situations - i.e. slavery) then is that what the founders meant? I really don't think so. No comparison intended here, but slavery and eliminating state sovereignty both violate the very premise of the constitution: freedom.

    We handled the slavery issue with constitutional amendments, so individual freedom is protected and no longer includes the ridiculous and manufactured distinction between some people who are people and some people who are not. State freedom is supposed to be protected by an amendment already in the constitution, but Congress simply ignores it - no need for interpreting it in any fashion. If they can ignore the 10th they can ignore the 1st and all the rest. To interpret the commerce clause this broadly is to render all the amendments moot, except the 16th. Congress likes that one.

  5. Now, I'm confused. You seem to be saying that Congress does have the power to make laws about commodities that cross state lines. If so, wouldn't cars be a prime example of that? If Congress has the constitutional authority to forbid certain types cars from crossing state lines, wouldn't Congress also have the authority to do something less extreme, like pay them to destroy their cars?

  6. Technically, that could happen only at the borders. Interstate, not intra-state.

  7. Not really. Cars are shipped all over the place. They are items of interstate or foreign commerce---made in Detroit or Japan, etc. and shipped all over the place. Perhaps residents of Michigan would not be eligible. But, everyone else would.

  8. Is the question about how it works today, or how it is constitutionally supposed to work?

  9. I am assuming "Original America"---how it was supposed to work. But, the question is one of constitutional authority to act at all, not how to go about it. The "necessary and proper" clause pretty much gives the feds carte blanche on executing its wishes, within the scope of its "delegated" powers.

    I don't think your Canada analogy fits what the Framers did. That's more of an Articles of Confederation construct.It's not like the powers of Congress and the President could only be exercized at the borders between states.

  10. With this interpretation it sounds like Congress can regulate any and all things regarding commerce even within state borders, suggesting the states have no sovereignty in this area. Can that be right?

  11. Not necessarily. Let's assume, for the sake of this aspect of our discussion, that the commerce clause properly only allows Congress to regulate commerce that has or will involve a product or service that crosses state lines. The local farmer who sells his produce at the local farmers market is competing, in theory at least, with the grocery stores who import their produce from all over the place. So, in a sense, the local farmer's market could be construed as "interstate commerce", but let's say that's too broad an interpretation. In that case, the feds would not have the authority to do anything at all with respect to that transaction (unless it is via some other grant of authority other than the commerce clause).

    But, if I make handmade do-hickeys and sell them over the internet to people in far-flung places, isn't that insterstate commerce? I think it is. And, unless the commerce clause is given my jr. high interpretation (and my reading indicates that the Framers did not intent that interpretation), the feds would have the constitutional authority to regulate it. Once that constitutional authority is there, then does the 10th amendment have any further role in the discussion?

  12. In this scenario, I think your suggestion the 10th no longer applies is sound, regrettably. It sounds to me the concept of interstate commerce and/or Congress' authority to regulate it is out dated. 100 years ago this scenario of a local farmer's market being immune to federal regulation but the supermarket who imported food is not sounds appropriate. With modern technology it is a very different world, and perhaps government authority needs to be updated to reflect that.

  13. After I submitted that last comment, I realized that I have more to say. Despite advanced technology having caused sweeping growth in the legitimate scope of the commerce clause, I still think there is room to complain that the 10th amend. has been ignored and that the scope commerce clause has been expanded beyond what it was originally intended to mean.

    For example, the so-called "dormant commerce clause" involves a judicially created inference that I think is in conflict with the 10th amend. Also, the recent California marijuana case goes so far that the commerce clause is said to apply to locally grown, locally sold products. The post-New Deal court got us to that point, and I do think they are too broad a construction of the commerce clause. Unfortunately, I think the "need" for those constitutional re-interpretations came about because of pre-New Deal constitutional interpretations that were overly protective of big business. If the "Four Horsemen" had allowed the states to regulate big business, the political force likely would not have been amassed to allow the feds to do it.