Monday, July 21, 2014

Tenth Amendment advice to my Republican, Conservative, and Libertarian friends

As many of the recipients of this blog know, I am a recovering constitutional law professor. Although I risk relapsing if I think, let alone write, about constitution law, now that current popular discourse is so permeated with the subject, there is an itch I have to scratch. 

The Tenth Amendment to the Constitution of the United States of America provides in unambiguous language that "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."

To paraphrase, so no one can misunderstand. 

           If in the Constitution a specific power is not specifically delegated to Congress, principally in Article I, Section 8 (e.g., "lay taxes," "regulate commerce," "establish post offices," "borrow money" . . .

          And if that specific power is not expressly prohibited to the states in Article I, Section 10 (e.g., "enter into any treaty," "coin money," "pass any ... law impairing the obligation of contracts") . . . 
           That specific power (e.g., to enact criminal or marriage laws) is reserved to the states, which may legislate if authorized by its (the states') citizens.

In light of this unambiguous language and the equally incontestable intention that wrote it, why then do Republicans, Conservatives, and Libertarians when speaking of the Tenth Amendment invoke "states' rights"?

Not only was the Tenth Amendment not intended to safeguard rights, not only does it say nothing about states' rights, not only is it clear beyond rational argument that the Amendment speaks only to power expressly delegated to Congress and other power expressly reserved to the states, but states do not have rightsOnly individuals have rights.

Thus, it is doubly wrong for my Republican, Conservative, and Libertarian friends to speak of “states’ rights.” Doing so misunderstands the delegation/reservation intent and meaning of the Tenth Amendment, and in the process completely ignores the real source of rights expressly articulated in the Bill of Rights and Fourteenth Amendment. Especially in the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”1

Moreover, my friends who want to invoke the Tenth Amendment in legal and political argument today are missing the constitutional boat. At stake in the current battle over engorged federal power is not a meaningless two words. Obama and his not-so-merry band of progressives in Congress and the regulatory agencies are not violating “states’ rights.”

They are making war on state sovereignty: 
“A doctrine in political theory that government is created by and subject to the will of the people” (Merriam-Webster Dictionary).

They are warring against the “people,” whom the Tenth Amendment makes the repository of all power not expressly delegated to the federal government.

So please, Republicans, Conservatives, and Libertarians, get it right.2

1 Another reason the phrase “states’ rights” should never be used is because of its connotation, if not denotation. During the thankfully bygone era of racial discrimination and segregation southern, states used the principle of “states’ rights” to justify first slavery and then Jim Crow laws.

2 The implications of this understanding for politics are substantial, because many voters can easily be made to grasp in concrete terms how a federal attack on their state and individual sovereignty affects them.