Montreal, October 15, 2011 • No 293


Larry Deck is a librarian who lives in Montreal.



Fighting over the Tenth Amendment


by Larry Deck


          Is limited government possible? A growing number of people in the United States believe that the answer is “yes,” and that the only thing they need to shrink their federal government to a size it hasn’t seen in over a century is... the Tenth Amendment.


          The Tenth Amendment to the Constitution of the United States, ratified in 1791, reads as follows:

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.

          The dry and measured eighteenth-century prose of that sentence would not seem to be the sort of thing to inspire passion on the modern political scene, but it has. Enthusiasts of the Tenth argue that the spirit and indeed the letter of this amendment have been violated repeatedly throughout the history of the United States, and that the powers of the federal government—clearly limited by this amendment to those powers listed in the body of the Constitution itself—have been expanded at the expense of the States and the people.

          Fans of the Tenth Amendment believe that it makes various things, from Social Security and Medicare to membership in the United Nations, unconstitutional, and demand a very strict interpretation more in keeping with the spirit of an earlier formulation from the Articles of Confederation that read:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

          Critics of Tenth Amendment enthusiasm have sometimes insisted that the absence of the word “expressly” from the constitutional version means that the powers of the federal government include, but are not limited to, those expressly enumerated in the Constitution. In particular, critics argue that other parts of the Constitution imply that the federal government can arrogate to itself various new powers as necessary. And indeed, history has so far confirmed this interpretation.

A Troubled Past

          The Supreme Court has not traditionally seen the Tenth Amendment as much of an impediment to the expansion of federal powers. Constitutional challenges based on the Tenth Amendment have been few and far between: the last one that was even mildly successful was a challenge to certain provisions of the Brady Handgun Violence Prevention Act of 1993 that would have compelled state and local law enforcement to conduct background checks on prospective purchasers of firearms. Those provisions were struck down, but not the rest of the law, and to nobody’s great surprise, most state and local forces continued to exercise the power to conduct background checks even though they were not compelled to do so. Also to nobody’s great surprise, similar challenges to laws compelling states to enforce federal laws regarding the cultivation of marijuana for medical purposes have not been successful.

          I mention this because it shows how unlikely it is that the Supreme Court is going to be gripped by a fervour to reverse its own past decisions and congressional decisions on the sole basis of a renewed commitment to the Tenth Amendment. Justice Antonin Scalia, who sided with the liberal majority in deciding that states have to enforce federal marijuana laws, has been equally clear in responding to suggestions that the Tenth Amendment precludes certain types of budgetary shenanigans. “It’s up to Congress how you want to appropriate, basically,” he told a group of Republicans who asked him about it.

          If the SCOTUS cannot be counted upon to uphold this version of the constitution, perhaps it’s time for Congress or the executive to re-assert the prerogatives of the Tenth somehow. One candidate for the Republican nomination, former house speaker Newt Gingrich, has said, “My campaign is going to offer a lot of very large changes, including a 10th Amendment implementation bill which enforces the 10th Amendment to the constitution and takes a great deal of power out of Washington and sends it back home.” That’s stirring but vague, and comes from someone with a vanishingly small chance of winning the nomination.

          The presumed favourite for the nomination, former Massachusetts governor Mitt Romney, has also name-checked the tenth, albeit in a more low-key way, saying that he thinks the Affordable Care Act (“Obamacare”) is unconstitutional “on the Tenth Amendment front.”

"Advocates of limited government are apt to wave their hands at this point, but the question always re-asserts itself: Is limited government possible? If so, how, exactly?"

Smearing the Tenth

          These statements from Gingrich and Romney reflect the fact that enthusiasm for the Tenth Amendment has grown so much in Tea Party and Republican circles that some critics have taken to calling it “Tentherism” in an attempt to lump it in with Birtherism and Trutherism as just another paranoiac obsession of the political fringe. Radley Balko has rightly denounced this as a smear, since

unlike any convincing evidence that Obama isn't a U.S. citizen, or proof that the Bush administration orchestrated the September 11 attacks, the Tenth Amendment actually exists. You can actually go to the National Archives and read it. There's also a historical record of its drafting and ratification. Really.

          Balko quotes Ian Millhiser of The American Prospect as an example of the smear-job in action:

More important, there is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance.

          But as this exchange indicates, one of the basic issues here is democracy itself and to what extent the United States is, or should be, a democracy.

          Conservatives are frequently at pains to explain that the founders intended the United States to be a constitutional republic and not a democracy as such, because, as James Madison explains in The Federalist No. 10, they wanted to limit the “mischiefs of faction” to which a pure democracy is especially susceptible. For that reason they carefully established a separation of powers and an intrinsically conservative upper house and so on. But of course, the House of Representatives was always composed of democratically elected representatives and by degrees the democratic principle was extended to include direct election of senators (1913), and the right to vote was extended to men of all colours (1870), to women (1920) and finally to anybody over the age of eighteen (1971).

          This progression has the air of inevitability about it, and it’s not easy to see how a democratically elected government resists the popular extension of democratic imperatives. Some American conservatives have said that the founders’ intention was to limit the franchise to property-owners and that Americans should attempt to re-establish that narrowly restricted franchise, but it’s not at all obvious that they should, and how would they do it even if they wanted to?

A Deeper Change

          Advocates of limited government are apt to wave their hands at this point, but the question always re-asserts itself: Is limited government possible? If so, how, exactly?

          It seems pretty clear that in the United States, even with its Constitution originally intended to limit the growth of government as much as possible, it will take a lot more to limit that growth than pointing at the Tenth Amendment and saying, “Behold!”

          Calling enthusiasts of the Tenth Amendment “Tenthers” in order to marginalize them and their desire for smaller government a smear; but promoting the abstract and legalistic idea of limiting the state by decree, without much wider and deeper popular support for such limitation is, at this point, merely the mischief of a faction. Even if it succeeded in a limited way for a short time, the majoritarian imperative would reassert itself eventually. Something deeper in the culture has to change, and ultimately it may be easier to do away with the state than to try to limit it.