Monday, October 4, 2010

The Tenth Amendment

There is quite a bit of confusion about the Tenth Amendment going around. There is one the one hand the development of the 'Tenther' tenant of the tea party movement, which claims essentially that the federal government cannot exercise power over anything not explicitly enumerated in the Constitution. On the other hand is the more general view that it is a state sovereignty clause whose purpose is to enforce the boundary between federal and state powers.

These are similar claims in the end. If the more recently dominant federalist reading of the Tenth Amendment were taken very literally, it might assuage the anger of the Tea Party organizers. On the other hand, if the states merely assumed the powers which their defenders claim belong rightly to them and not to the federal government and enacted similar policies and used a similar tax scheme, I suspect that the situation would be no more amenable to Americans that are deeply worried about our global standing, national economy, and foreign debt.

I think that both these readings- that Congress has severe limitations on its powers and that the states are the natural home of any usurped powers- severely miss the mark about what the Tenth Amendment means.

I'll be drawing fairly heavily from the historical work undertaken by Conservative Constitutional Scholar Akhil Amar for my history here. Amar draws on the two instances of the phrase "the people" in the 1789 Constitution: The preamble's "We the people... do ordain and establish this constitution for the United States of America" and Article I's election clause to alert us that "the people" means the body politic that make up the several states and the Union. His effort here is to dismiss claims that the 9th amendment protects unenumerated individual rights, but for our purposes, the history upon which he grounds this reading seems correct enough.

The framers of the first ten amendments to the Constitution seem did not retain this precise meaning of the phrase in the first amendment which protects "the right of the people peaceably to assemble", the second's "right of the people to keep and bear Arms", and the Fourth Amendment "right of the people to be secure in their homes and papers" all common-sense readings that involve rights which the courts have since declared belong to individuals. Amar does not believe that these individual rights were initially meant to flow from these documents. Though currently held to be individual, these are all precursors to a democratic government when guaranteed to the public at large. The Right to keep and Bear arms would be necessary to overthrow tyranny of the federal government which anti-federalists saw just around the corner. The right to assemble entails the freedom to design and implement a new government in its aftermath. Security in papers and the house assures that conspirators in pursuit of either of these aims would have some degree of freedom, and that individual citizens could not be bullied into abandoning political action. Even if "the people" had ceased to imply purely popular rights in the bill of rights, it would continue to signify political ones.

This leaves the Ninth and Tenth Amendments, which offer guides for interpreting other provisions of the Constitution. The Supreme Court in United States v. Darby Lumber Co. 312 U.S. 100, 124 (1941) opined that the Tenth Amendment
"... states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than delcatory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to fully exercised their reserved powers..."
Essentially, the Tenth Amendment does not mean anything extra from what was already established by designing a system of government with myriad inter-departmental checks which is some degree responsible to the political actors which support it. Certainly, there is no enforcement mechanism granted to the States by the amendment. The amendment does not provide exceptions to the Article VI supremacy clause when an agent of a state believes the federal government has overstepped its bounds; they are still required to perform their duties in deference to the U.S. Constitution. This is precisely why state nullification advocates have not been represented well throughout history. If they were right that states, as primordial political actors, had the power to cast judgment on the constitutionality of federal statutes, the tenth amendment would say so.

This state-centric view crucially misses the last three words of the tenth amendment, "or to the people". This addition differentiates the tenth amendment from its predecessor clause in the Articles of Confederation, which created a hamstrung body which did not have the power to overcome state rivalries. Indeed, the most important revision which the Constitution made on the Articles of Confederation was deriving its power not from the states as political actors, but from the people of the United States themselves. In fixing its purpose as protecting the needs and interests of the people of all states, and declaring this interstate populace sovereign, it achieved effectiveness, durability, and importance.

The centrality of the people to the Constitution should illuminate exactly the "power" which the public retains. In distinction to the statutory and policy powers granted to the federal government and reserved by the States, the people retain the primary constitutional power to define the role and arrangement of government.

This brings me to my broader critique of the Tenther movement: There are constitutional decisions which have been made over a long time garnered by our ancestors. Many of these determinations have been the fruits of prolonged and painful struggles by generations of activists such as voting, labor, and civil rights. Some of them were settled in the name of business interests and stability, the centrality of contract to economic order, and any number of laudable goals. When a vocal minority complains about the current of these arrangements and decries that it exceeds Constitutional limits, that's fine. They get to argue in the courts and in public for repeal or remedies, or whatever Fox News is pushing today. However, to say that it violates the Tenth Amendment would really be to say that it takes away the right of the people to govern themselves, that it removes from states all vestiges of sovereignty, and that the people have no recourse.

Any honest person recognizes that the public still has the tools at its disposal to govern itself. Elections are still held, constitutional conventions can still be convened. No political rights are being threatened by the federal government- at least they aren't at issue when Tea Parties are protesting.

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