April 16, 2012 – Essay #41 – Amendment X: Modern Issues of States’ Rights – Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution


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.

Modern Issues Of States’ Rights
Ninety percent, if not more, of what the central government does today is unconstitutional. All of the following legislation violates the Tenth Amendment: national healthcare, welfare, all federal education programs, federal highway construction and funding, the National Defense Authorization Act, gun control, the Federal Reserve System, etc., and these are just some of the large issues. An itemized list based on a modern federal budget would be too substantial to publish in a book length project, let alone a short essay. Proponents of the Tenth Amendment in the founding generation viewed it as a necessary check on the power of the general government and in particular the famous “sweeping” or “elastic” clauses of the Constitution, i.e., the “general welfare clause,” the “supremacy clause,” the “necessary and proper clause,” and now the infamous “commerce clause.” The Tenth Amendment was designed to keep domestic issues under the purview of the States and leave matters of commerce (meaning interstate and international trade) and defense in the hands of the general authority. In essence, every time the central government abuses its Constitutional authority it is violating the Tenth Amendment. But for the sake of argument, the most important and egregious violations of the Tenth Amendment today are as follows:

“Obamacare”: Regardless of what the Supreme Court decides in June, the “Affordable Care Act” is a gross violation of the Tenth Amendment to the Constitution. In fact, the States would do well to individually strike it down by invoking the Tenth Amendment, as Thomas Jefferson and James Madison did with the Virginia and Kentucky Resolutions of 1798 in response to the blatantly unconstitutional Sedition Act. As per Article 1, Section 8, regulating healthcare is not one of the delegated powers of the general government, and the commerce clause does not apply in this case because the general government cannot regulate the commercial exchange of individuals nor can it mandate that individuals engage in a commercial activity. Proponents of the Constitution continually argued in 1787 and 1788 that if the Constitution was mute on an issue, then the general government did not have the said power. The States, however, can, and thus if the States want to address healthcare, and the respective State constitution allows it, they are free to do so.

The National Defense Authorization Act for 2012: While this piece of legislation has support among Republicans, it unconstitutionally enlarges the powers of the executive branch and has the potential to place all American citizens under martial law, thus unconstitutionally suspending the civil court system in the United States. The general government cannot constitutionally interfere with the State judicial systems nor can it constitutionally give the executive branch the power to suspend habeas corpus. Those are not delegated powers in the Constitution and thus violate the Tenth Amendment. Abraham Lincoln unilaterally suspended habeas corpus in 1861 and while Attorney General Edward Bates supported it and the Congress retroactively “authorized” it, he was heavily criticized at the time. The Supreme Court even struck down his heavy handed tactics and later negated congressional attempts to supersede State courts with military tribunals during the Reconstruction era. Congress has forgotten or neglected to remember those decisions.

The Federal Reserve: The FED is at the heart of the current economic meltdown, and central banking has long been a contentious issue in American politics. During the Philadelphia Convention in 1787, the Pennsylvania delegation suggested giving the power for chartering a bank to the Congress but were soundly defeated. No matter. In 1791, Alexander Hamilton made a central bank “constitutional” by stretching the “necessary and proper clause” of the Constitution, something he said would never happen when arguing for ratification in the Federalist essays. The Bank of the United States failed re-charter in 1811 but was replaced with another in 1816, with James Madison’s support. His reason was dubious. Time and circumstances, he said, had made the Bank constitutional. Central banking supporters never looked back. Of course, Andrew Jackson destroyed this Second Bank of the United States, but the legislative precedent had been set. When the “Creature of Jekyll Island,” also known as the Federal Reserve System, appeared in 1913, thanks to Hamilton, Madison, and John Marshall who ruled the Bank was constitutional in the infamous 1819 McCulloch v. Maryland decision, no one questioned its constitutionality. But, if Americans followed the Constitution as ratified and amended by the Tenth Amendment, the Federal Reserve would fail the constitutional sniff test. Chartering a bank or a central banking system is not a delegated power of the general government.

All Social Welfare Legislation Including Education and Entitlement Spending: In the 1942 Supreme Court decision Wickard v. Filburn, the Court found that anything that might be considered “interstate commerce” fell under the authority of federal regulation, including economic activity such as growing your own food on your own land. In essence, the “commerce clause” has become the “Hey, you-can-do-whatever-you-feel-like Clause,” as federal judge Alex Kozinski pointed out in 2005. All federal social welfare spending falls either under the so called “commerce clause” or the “general welfare clause,” and according to the founding generation both were restricted by the Tenth Amendment. None of this legislation can be found in the enumerated powers of Article 1, Section 8 unless they are “stretched,” something opponents of the Constitution feared would happen. That was the driving force behind a “States’ Rights” amendment in the Bill of Rights to begin with. If the States had a backbone (and were not slopping at the federal trough) they would interpose their control over such issues, invoke the Tenth Amendment, and strike them from the books.

In 1788, Tench Coxe of Pennsylvania, an ardent supporter of the Constitution and member of the Continental Congress, wrote that,

[The general government] cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices, building light houses, public wharves, county [jails], markets, or other public buildings…nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive, or judicial, civil or ecclesiastical.

And later he said, “In short besides the particulars enumerated, every thing of a domestic nature must or can be done by them [the States].” Translation, the general government in Washington D.C. cannot constitutionally do most of what it does today. To proponents of a Bill of Rights, the Tenth Amendment was there to legally ensure Coxe was correct. The Tenth Amendment is more than a protection of “States’ Rights,” it is a check on a tyrannical and unconstitutional abuse of authority by the central government.

Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution (Regnery History, 2012), The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009), and Forgotten Conservatives in American History (forthcoming with Clyde Wilson, Pelican, 2012).

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7 Responses to “April 16, 2012 – Essay #41 – Amendment X: Modern Issues of States’ Rights – Guest Essayist: Brion McClanahan Ph.D., author of The Founding Fathers Guide to the Constitution”

  1. Ron says:

    Too bad the States don’t have the political courage to do what’s right. They are so dependent on federal money for almost everything they do that their own fiscal health would be in jeopardy if they had the courage to step up and demand a return of their rights.

    But, if 90% of what the feds do is not constitutional, then there is plenty of room for our national Congress to find whole agencies, like the Education Department, Energy Dept, etc. to elminate just to get started on the road to recovery.

  2. yguy says:

    The general government cannot [] constitutionally give the executive branch the power to suspend habeas corpus.

    As Lincoln himself observed, the suspension clause does not specify which entity has the power to suspend, only that it may not be done in other than exigent circumstances; so it is not clear to me that he exercised any power beyond what the Constitution gave him.

    Those are not delegated powers in the Constitution and thus violate the Tenth Amendment. Abraham Lincoln unilaterally suspended habeas corpus in 1861 and while Attorney General Edward Bates supported it and the Congress retroactively “authorized” it, he was heavily criticized at the time.

    Nevertheless he was not only not impeached, but re-elected; and since, for better or worse, We the People must be considered the ultimate judge of the fidelity of a President to his oath of office, it does not seem like much of a stretch to say We considered Lincoln to have acted in accordance with said oath.

    • Yguy:

      Your argument would make sense if the writ was not in Article I (Legislative Branch). Lincoln’s argument (and by default Bates’) were an attempt to justify a clearly unconstitutional move, a la Obama and every other president since that has usurped power from the Congress and the States.

      Of course Lincoln was not impeached. The Republicans controlled the Congress (and were just as bad if not worse than Lincoln in their flagrant abuse of the Constitution). But, Democrats did gain seats in 1862 and it was not clear that Lincoln was going to win in 1864. Battlefield success certainly helped his cause.

      • yguy says:

        Yguy:

        Your argument would make sense if the writ was not in Article I (Legislative Branch).

        That might be a salient point if one could reasonably assume such compartmentalization from the text; but even neglecting the fact that the Constitution as originally ratified bore no descriptive titles for articles or sections, I for one am hard pressed to understand what the President’s veto power is doing in A1, and what the Congress’ role in the election of the President is doing in A2, if there is anything like the impermeable textual barrier between articles that you appear to suggest.

        The Republicans controlled the Congress (and were just as bad if not worse than Lincoln in their flagrant abuse of the Constitution).

        In light of the take care clause (A2S3), what would you consider an appropriate presidential response to a state attempting to forcibly repossess land it sold to the federal government under the enclave clause (A1S8C17)?

  3. Barb Zakszewski says:

    Excellent analysis and explanation of how government today is abusing its “limited” powers and destroying our Constitution in the process!! Point taken about States feeding at the public trough. However, the Federal government has made is easy and even necessary for states to grab what they can from the Federal government, they can then pass the buck and their yearly budgets. To restore the true meaning of the 10th Amendment, States need to start saying no to bogus stimulus programs and other help, and start cutting their spending as well. Everything is so out of wack right now, I don’t know if it can be fixed. However, States that are fighting Obamacare and other programs with the 10th Amendment are on the right track. Citizens of each state have to tell their governors and legislatures enough is enough!!

  4. Brion McClanahan says:

    “That might be a salient point if one could reasonably assume such compartmentalization from the text; but even neglecting the fact that the Constitution as originally ratified bore no descriptive titles for articles or sections, I for one am hard pressed to understand what the President’s veto power is doing in A1, and what the Congress’ role in the election of the President is doing in A2, if there is anything like the impermeable textual barrier between articles that you appear to suggest.”

    You mean the Constitution as ratified that clearly states “Article I, Section 1”? That Constitution? The one in the National Archives? The one that was sent to every State for ratification (or not)? Or is there another that I am missing? Or how about the fact that the Constitution was discussed in such “compartmentalized” form in several State ratifying conventions. Have you even read those? How about Madison’s notes? And by the way, clearly every other Clause of Article 1 Section 9 deals with the powers of Congress and the founding generation by no means wanted the executive to have the power to suspend habeas corpus, which is why it was included in the section on the LEGISLATIVE branch. As for your other two points, obviously the “veto power” which by the way is not absolute in case you forgot is in Article 1 because it addresses how legislation will be finalized. And Congress is listed in Article 2 in regard to elections because that follows the section dealing with the Electoral College. Where else would it go?

    “In light of the take care clause (A2S3), what would you consider an appropriate presidential response to a state attempting to forcibly repossess land it sold to the federal government under the enclave clause (A1S8C17)?”

    To make this short and sweet, if Lincoln wanted to use force against South Carolina (who was in the process of trying to purchase the fort and settle its debt) then he needed a declaration of war. South Carolina was no longer under federal law. If you do not think so, then God Save the Queen!

    • And to add to my point, when Charles Pinckney submitted a list of proposals to the committee of detail in Philadelphia on Aug 20, 1787, he suggested that the “writ of habeas corpus…shall not be suspended BY THE LEGISLATURE….” That is the proposal the convention worked from in the following four weeks. It leaves no doubt that the executive had no role in the suspension of habeas corpus. If you don’t believe me, see Elliot’s Debates, Vol 5, page 445.

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