Tuesday, May 26, 2009

Noble, But Doomed?

Ok, so it's been another two weeks since I dressed Bob and Larry up in maille. And it's been a whole lot longer since I actually wrote something substantial about anything.

Does this mean you'll actually be writing something substantial tonight?

Possibly. Although I'm not so sure it's all that substantial. Well, I think it's substantial, but I have a way of getting worked up over things that seem minor to everyone else around me. So what I think of as substantial, winds up striking everyone else as mildly humorous, in a there he goes again sort of way.

But then, I suppose that the best way to entice me out of my blogging slump is to give me a news story that tickles one of my pet theories.

(Man, Orwell would have hated that sentence. A person is slumping, so you entice him by ticking the theory he keeps as a pet....)


All Orwell aside, here's a news story I saw recently. I've actually seen similar things at other sites. But for those who don't want to plow through the article, there's a nascent political movement out there to try to bring back our Constitution's Tenth Amendment.

Tenth Amendment? What's that? And what do you mean, "bring back"? Where has it been hiding?

It's this little inkblot* at the end of the Bill of Rights:
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.
If I recall my political history correctly (and I may not), it was added to the Bill of Rights to assuage a specific fear of the Federalists, thus gaining support for its passage. And this specific fear is actually a very interesting one.

The Federalists opposed the Bill of Rights on two major grounds: first, they believed that it would be unnecessary. Since the national government would be a republic answerable to the people and to the states, the theory went, it would have natural limits on its power to oppress the people. That is, if they attempted to stifle Freedom of the Press, the people and the states would rise up and throw all those bums out, and (presumably) put new bums in who would undo what the previous bums did. I think we can safely say the Federalists got that one wrong.

But their second objection (in my opinion) was a bit more substantive. The constitution granted lists of powers to the various branches of government, with the implicit (unwritten) understanding that these lists represented all the powers that were being granted. That is, if the Constitution said you had the authority to regulate usufructs, salt pork, and left-handed tennis matches, then you only had power to regulate usufructs, salt pork, and left-handed tennis matches; you had no authority over anything else. It was understood at the time the Constitution was written that the national government's jurisdiction was over only those things that were specifically mentioned in the Constitution; everything not mentioned therein was forbidden to the Feds, and either was the province of the states, or (if the states didn't want to regulate it) belonged to the sphere of private life and commerce. This principle was called the Enumeration of Powers, and this principle--originally unwritten--was one of the bedrock principles of limited government.

The Federalists' fear was that, by listing a set of rights in the Constitution, it would make it easier for future tyrants to weaken the principle of Enumerated Powers, and even start treating those listed rights as the only rights the people have. Ok, so let's say the Constitution grants the Grand Pooh-Bah authority over usufructs, salt pork, and left-handed tennis matches; and let's say it explicitly grants the people the rights of Free Speech, Free Love and Free Bacon. Now you have two enumerations. What do you do with things that aren't listed on either list? The Federalist fear was that the very existence of the enumeration of rights creates a gray area that shouldn't be there; people might look at these two lists, and say: "The Right of the People to Sing in Public isn't listed among the rights of the people. And it's just plain annoying. And it's probably an usufruct anyway, since no one around here seems to know what the heck that means. There oughta be a law!"

The net effect of a Bill of Rights, in the Federalist view, was actually to weaken the powers of the states and the rights of the people--since it weakened the principle of Enumerated Powers, which is so important to limited government. And it would tempt those in power to read the Bill of Rights as an enumeration of the Rights of the People--meaning, if a supposed right wasn't on the list, it perhaps didn't exist....

I think the Federalists were a lot closer to the truth with this argument than they were with the other one.

So to placate the Federalists' objections and get them on board, two Amendments were added to the Bill of Rights. The Ninth Amendment was written to preempt the argument that the rights in the Bill constituted some kind of enumeration:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
And the Tenth was written to reaffirm the principle of Enumerated Powers--that the power of the National Government was limited to only those powers explicitly granted it in the Constitution:
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.
All very well and good.


So what the heck happened?

After all, if you take the Ninth and Tenth Amendments literally, then the Federal Government has no legitimate authority over anything not specifically listed. That is, Congress wouldn't have power to legislate anything regarding education, or health care, or funding for the arts, or environmental protection, or pensions (like Social Security). All of these things would be "reserved to the States respectively, or to the people," because none of these things show up in the lists of powers granted to Congress to legislate.

But... one of the powers the Constitution does grant Congress is the power to regulate "interstate commerce."

What does that mean?

Well, here's what many, many successive Supreme court rulings have said: anything, that in any way, shape, or form, affects any transaction that might conceivably cross state lines, counts as interstate commerce. The education you get in Kansas may some day wind up being used when you do business in Mississippi, so education falls under "interstate commerce". The doctor who treats your bunions went to school in North Dakota (because all good things come from North Dakota, I'll have you know), and the medicines he uses were developed in Massachusetts, so medicine falls under "interstate commerce".

In fact, the food you grow on your own family farm, which is grown for your own family's consumption--and is never traded for money, let alone sent across state lines--still affects the market. After all, if you didn't grow that food, you'd have to buy it, so your choice to grow it has economic impact, and thus--ahem--can be regulated under the "interstate commerce" powers. No joke--the Supreme Court case that decided that one is Wickard v. Filburn, 1942.

To make a very long story short, these two amendments--the Tenth, in particular--have for all intents and purposes been nullified by successive Supreme Court cases. Everything affects interstate commerce, if you interpret the term broadly enough; and as a result, Congress can get away with passing just about any law it wants, on any topic. It's been this way since at least the time of FDR--but it was moving that way at least a generation before.


So now we're actually seeing a movement to roll back the power of the Fed. The article I linked to above notes a recent attempt by the Feds to force the state of Maine to issue Fed-approved ID cards to the entire population, and Maine said, well... no. And the Feds backed down!

So now we have the State of Montana getting into the act. Being a very outdoorsy kind of State, with a great heaping helping of that Western Libertarian character about it, it's no surprise that the population has a very strong hunting/gun culture. And they don't take too kindly to out-of-towners coming in and telling them what guns they can and cannot purchase, and what hoops they have to jump through to do it. So the governor recently signed a bipartisan bill stating that guns manufactured in Montana, to be purchased by the people of Montana, for the benefit of the people of Montana, do not come under the heading of "interstate commerce"--because there's nothing "interstate" about it. Therefore, such manufacturing and sale need not be registered with the Bureau of Alcohol, Tobacco, and Firearms, since Congress has no authority to regulate in this case.

The Feds, needless to say, are not amused.

The article goes on to mention that 35 states have jumped in the pool with some kind of legislation asserting their 10th Amendment rights to blow off Federal legislation on topics not explicitly granted in the Constitution. It mentions things going on in Georgia, in Texas, in Utah....


Believe it or not, I'm only now getting to the part that I find really interesting. I mean, I find all the above interesting, but here's the part where my frustration really starts to kick in.


I'm all for these efforts, and I hope they succeed. They have my support, and I will cheer them when they are occasionally victorious. But in the long term, I doubt there will be many lasting successes.

The underlying problem is that the state governments no longer have an effective check on the power of the Feds.

But first, I have to back up a bit. The guys that wrote the Constitution understood something about power: anyone who has it, wants more of it, and will use what power he has to gain more whenever he has the opportunity. The motives change from one person to the next, of course; some people with power want to wield their power for the Benefit of Humanity. Others just enjoy the thrill of squashing their opponents like bugs. But it's very rare to get people in positions of power who want less power than what they have. After all, given how fierce the competition is as you climb the greasy pole, it's not likely someone gets to the top who doesn't want to wield the power. If they didn't want to wield the power, they wouldn't have been climbing the greasy pole in the first place.

And when you have this kind of situation, with Government run by a class of people who want to Change the World and squash their enemies and retire as comfortably and as young as possible, little obstacles like Constitutional Thou Shalt Nots are easily ignored. After all, if everyone else in government concurs with your overreach, then who's going to stop you? And who's to call it an overreach, anyway?

So when every position in Government is filled by power-grubbers, each of which wants to expand their little empires, how the heck do you keep Government small, under control, and accountable to the electorate?

The Founders' answer: you set it against itself. You design it in such a way that no one's power grows, except at the expense of someone else's; and you give this someone else a veto on whoever it is who's trying to usurp the power. When you've got a government designed like this, it's slow, and inefficient, and rancorous--but when it does pass something it means that whatever it is has some kind of real consensus behind it, and is less likely just to be a power play.

So we have what we glibly call checks and balances: The President can't do something without Congress, and Congress can't do something without the President, and the President must consider the People or risk becoming ex-presidential, and Congress has to defer to the people or risk becoming ex-congressional, and the judges are selected for their positions by the President, with the advice and consent of the legislature. Despite my distaste for the things that come out of Washington these days, the system works pretty well, most of the time; all things considered, our government is still more limited than most developed nations' governments, and I think that's a really good thing.


Back in 1913, I think we made a terrible mistake.

Here's the trouble. Prior to the 17th Amendment to the Constitution, senators were selected in a manner directed by the legislators of the various states. If the legislators of one state wanted the senators to be elected by the people, well and good; but if in another state they wanted the senators picked by the governor and ratified by the legislature (like ambassadors are now), that was legal.

And yes, this produced a bunch of highly corrupt machine politicians. Yes, yes, yes; I know all that.

But it also gave the state governments a seat at the Federal table, and that made a huge difference in what got passed. This goes back to what I said earlier about checks and balances: in order to keep one power player from getting to powerful, you set it against another power player with the power to veto him. Well, prior to the 17th Amendment, the States could effectively veto the Feds. After all, when a state's senators were selected by the governor or legislature, those senators had to do the governor's or legislature's bidding in Washington, or they quickly found themselves ex-senators.

And this meant that, if the Federal government tried to run roughshod over the rights of the states back prior to 1913; if they'd tried to push unfunded mandates on the states; if they'd tried giving orders to the states on how to run their health care or their educational systems; the Senate--answering the desires of the state governments--would have put a big, fat no on whatever plan that was. The Senate was the check against the power of the central government; any attempt to increase Washington power at the expense of the states, pretty much had to get the states' consent first.

But now the Senate, being popularly elected, isn't much more than a somewhat more pompous version of the House, and it provides the states no protection against Fed encroachment. The states have lost their check, and governmental power has become unbalanced.

In such an environment, it should come as no surprise to anyone that the 9th and 10th Amendments have become little more than inkblots--there's no governmental body dedicated to defending them anymore. That used to be the Senate's job; but it's no one's job now. And no matter how much one may like the ideas behind these (or any other) Amendments, if there isn't a governmental body dedicated actively to protecting them, then they might as well be inkblots*.


So what of the Federalism movement? Well, I'm for it. And I'm not the only one who thinks the 17th Amendment was a bad idea. Apparently Democratic former senator Zell Miller thought so too, and introduced a bill to repeal it just before he retired from the Senate.

I'm all for states standing up and defending their rights, too. After all, one thing the Constitution definitely does not do is give the Feds the power to give orders to the states. For that matter, the Constitution doesn't give a general police power to the Federal Government, either; nor does it require the states to enforce the federal laws. If a state decided simply to refuse to enforce a law on behalf of the federal government--as California does with medical marijuana--the Feds have a much, much harder time keeping the people in line. In fact, in many cases the only leverage the Feds really have over the states, is the lure of federal funding--that is, if you comply with these laws, we will give you cash for X, Y, and Z. And in most cases up until now, the states have taken the bait. As the article said:

Robert Natelson, a law professor at the University of Montana who was involved in drawing up that state's sovereignty resolution over a decade ago, argues that states up until now have been unwilling to take action of any real consequence in checking federal power.

"Back then they passed the resolution, but they didn't turn down any federal dollars," he said.

"If the states are serious about returning the federal government to its historical origins, they're going to have to do more than pass resolutions. They're going to have to turn down money and litigate."

Very true. And so whenever I hear of some governor turning down Federal money--as Sarah Palin did recently with the Federal economic stimulus money--it really does warm my heart. When a state rejects such money--and the strings that come with it--it often leaves the Feds with no leverage in the matter, no ability to bully the state government back.

Well, I can hope that we'll see more of this eventually. I'm not completely hopeful at this point; it's still a little too much windmill-tilty. But it's fun to see this sort of thing happen, even if it is only a little bit here and there, around the edges.

*Inkblot--I'm referring here to an argument by legal scholar and former Supreme Court nominee Robert Bork. In his view, the 9th Amendment is so indeterminate in meaning, that if it were blotted out with an inkblot, this wouldn't actually change the practical meaning of the constitution in any way. As such, I think "inkblot" is an appropriate epithet for any clause that is conveniently interpreted away by the courts....


silvermine said...

I hope it isn't doomed, because it's our only hope.

Anyway, Montana is a very interesting place. Not only did they pass the law about guns, but they also passed a law saying that you could, inside the state, optionally use gold as currency.


The homeschool laws look pretty decent too... Uh, yea, I am looking for backup states, since I also live in CA...

Roger Z said...

I'm glad I'm not the only one struggling to post lately... I'm being sucked into Facebook so all my dumb postings go there, which leaves very little to blog about! :) Let us "endeavor to persevere" together Tim (what movie is that quote from... ooooh I remember now, do you know???)!

Little brother said...

Couple thoughts and musings from your little brother, the even-more-longwinded-than-you, California public high school government teacher :-)
[This will appear in the next couple comments]
--Little brother

Little brother said...

Lots of what you are talking about is "fuzzy"--it has gotten tweaked and interpreted by the courts. Something I think you forgot to reference in your historical analysis of the development of the 9th and 10th amendment are two spectactularly important chunks of constitution. First, Article 6 Section 2, commonly referred to as the "Supremacy Clause" of the constitution requires that the state laws not violate the constitution and federal law. Of course, if the federal government is violating the constitution with it's interpretation of the "Interstate Commerce Clause" (I.8.3), then it could be argued that the states are actually defending/upholding the constitution more by REFUSING to honor the theoretically illegal federal laws.

Little brother said...

The second issue is that of the 14th Amendment, specifically the "Process of Incorporation," which comes from the second sentence of the amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This clause has been interpreted to mean that all of the prohibitions imposed on the federal government (such as the inability to impose a state sponsored church from the 1st amendment) are now extended to the states. The argument can be made, therefore, that we have had two or three of the constitutional amendments overturned--not just the 18th by the 21st, but the 10th and maybe 9th by the 14th.

Little brother said...

Whatever. Bygones. The simple reality of it is that we cannot ignore the more recent constitutional amendments. We have to follow them. If we want to reverse them, it takes a constitutional amendment. If the Supreme Court was wrong on a decision, it's decisions must be overturned by another decision (Plessy v Ferguson with Brown v Board of Ed.). Regardless, though, the text of the Constitution, and it's 27 amendments DOES give the authority to the federal government to have more expansive authority.

For example. Education is the business of the state governments. The federal government has the obligation (under the 14th Amendment) to guarantee "equal protection of the law" to all people in this country. So if the education level in a richer state like Connecticut is so much better than a poorer state like Mississippi or Alabama (or a poorer performing state like California), does that mean that geography or personal economics destines unequal protection to certain financially disadvantaged persons? (Consider Gideon v Wainwright--the constitution only guarantees the right to "the assistance of Counsel for his defense" (6th Amendment). The court ruled in 1963 that Gideon's inability to pay for an attorney should not destine him to lose the assistance of counsel). So should the federal government have the duty (or the right) to provide resources for education as an equalizer to economic inequality within society? (By the way, my "underperforming" California high school just had it's first graduate admitted to Harvard).

Little brother said...

So back to the issue of "Noble, But Doomed..." Is the federal government violating the constitution in providing education funding to the states? If the Federal Gov't were to REQUIRE states to take the money, it would be one thing... definitely. But any federal money for schools is on an opt-in arrangement. Your state agrees to follow Federal guidelines, or you don't get federal money...any federal money. This includes Title 1 poverty money (which includes discounted AP and SAT tests, giving poor students the ability to be competitive in colleges), school loans (Stafford loans, of which I took out about $60,000 to go to Pepperdine, in fact any sources of education funding that even involves the Federal government. Simply put, if you want to send your kid to any university, anywhere, unless you want to pay full price for a private university with no financial aid, your state has to get some federal funding. Probably the only way to put this back into the hands of the states (where it has really never been) is to lower federal tax, have offsetting higher state tax, then watch as ALL Connecticut students go to college and all the poor kids in Mississippi have to drop out of high school and go back to the Plantation because Mississippi doesn't have the tax base to support the education system that is needed there.

We need to be careful about trying to go back to the 1790s with our Constitutional thinking. There are things that they agreed to at the Constitutional convention that civilized people (I would assume everyone reading this site) would find abhorrent. The Founding fathers agreed to allow for slavery. They agreed that people could be seen as property. Women were nothing more than vessels for bearing children--no vote in society. People could be sent off to go fight and die in a war without ever having a say in who sent them. There is a reason that we have these amendments. In some cases they were to fix mistakes in the Constitution. In some cases they were to modify to Constitution to make it fit the circumstances of the day (moving up the inauguration). Before we try to revert the Constitution back to its original form, we've got to understand that the Constitution was changed for a reason.

Just some thoughts.

Tonya Power said...

Hey little brother,

I just wanted to correct something you said in your last comment about the role of women in society without the vote. They were not just seen as vessels for bearing children. Yes, many men in society under-valued the women in their lives. Not all women were saints and not all women were weak incompetents. There was just as much variety in the amount of respect women received and the deference made to their opinions as there is today. As well, there was great variety in the amount of respect and deference each woman earned and deserved. The only difference that I see is that by having the vote, politicians actually see the need to woo them for their vote. The men in their families usually valued the place the women held in the family and relied greatly on their contributions. Society also valued them and relied on them in a variety of ways. I would actually make the case that the role of being a vessel of childbearing was more respected back then than it is today.

As much as I am glad that I have a vote now, I think we tend to buy into feminist propaganda too much. Women did not live empty, pointless lives before they had a political voice in society because of the vote.

Roger Z said...

Tim- Little Brother brought up a point about the 14th Amendment that I was going to bring up, so I won't belabor it. It's important and gets to a real conundrum of "originalist" thinking about the Constitution, because if the current interpretation of the 14th Amendment is correct it really does negate the 9th and 10th Amendments.

That said, couple other points. First, with regard to balance of power, it's worth pointing out that there are other balances of power in society as well: specifically, the family (or our private social speheres) and the marketplace. Those two are significant barriers to government expansion- one would need to undermine both in the United States to successfully consolidate power. It can be done, and probably rather easily if history is an example, but it can't be forgotten.

More broadly, I heard my dad berating the 17th Amendment recently too. I'm not sure repealing it would lead to any strengthening of states rights down the road. You get to a key issue: he who controls the purse strings (she? Or is this Europe with their man-purses?), makes the rules. SO... why not a constitutional amendment whereby the states collect federal tax receipts? I just thought of that reading your article, no idea how it would work but I think it could be rather mischievous to discuss. :)

Little Sister-in-law said...

You should check out Gordon S. Wood's book "The Radicalism of the American Revolution." (I have no idea how to make that book title italicized...I'm HTML illiterate.) The basic idea is that the founders established a republic, but the United States became a democracy by the time Jackson was president. So within the first thirty years of existence--even by the time Jefferson died--the United States wasn't what the founders thought it would be. That's something to keep in mind when bemoaning all the changes in our society and government over the past 200+ years. Things are bound to change. Besides death and taxes, that's about all you can be assured of.

Secondly, I agree with Roger Z. I don't have enough faith in state governments to think that if the 17th Amendment were repealed, things would be much better. Call me cynical.

Thirdly, I think you've missed the mark on education. The first time the federal government funded education was in the late 1950s after the USSR launched Sputnik. There was a great fear that the US was falling behind in the arms race and space race and they had to do something...quick! So Congress passed the Elementary and Secondary Education Act, funding math and science education for high schools and colleges. So education wasn't originally funded for interstate commerce, but as a military necessity. It also falls under the necessary and proper clause given to Congress.

Finally, in response to Tonya, I don't think Little Brother was referring to the idea that women were never respected in the 1790s, but that legally they were considered property. That was certainly the case before women had suffrage. It is evident from his writings that John Adams greatly respected Abigail's opinion, but there was no way he was going to give her the right to vote and she certainly didn't--and couldn't--own the family farm. Legally, she was completely beholden to him, which is why she told him "don't forget the ladies."

My own little musings.

Tonya Power said...

Hi Little Sister-in-law,

As far as I know, you are right that women were seen as property in 1790. But I think you need to rethink your statement that that was the case before women's suffrage. I looked back at the 19th amendment and it didn't say anything about women no longer being considered property. The 13th amendment took care of that one. The ramifications of that amendment in women's daily lives were probably handled more by case law.

Yes society was slow in making that change. I am just trying to correct what I see as an incorrect world view (and I realize that I'm off topic here). The modern feminist movement would have us believe that the world was a horrible place and that women were in the midst of the worst servitude and living their lives in darkness, but when the power to vote came sunlight came streaming in with a breath of fresh air and women's chains dropped off their wrists and ankles and society was soon transformed for the better since only women could make the world better.

Hogwash. Life was hard then for both men and women. Life in many ways is better now. Life in many ways is worse now. It is different, because we live in a different world. But people are still people.

Back to the main topic: Little brother was making the point that the makers of our Constitution didn't rectify wrongs in our society and actually institutionalized them. Yes they did. Mainly because they couldn't agree among themselves or think that they could get the votes from the people to make those changes Little brother mentioned. However, I think one point that should be mentioned in this discussion is that those same men did seem to have a keen understanding of human nature to understand the need for checks and balances.

Now instead of talking about what happened historically, maybe we should be trying to figure out how to restore a working system of checks and balances for our current government.

Anna said...

I'm not sure if I'm more intrigued by the post or the familial discussion in the comments.

But, to your post... very thought-provoking. Some of this I heard in high school, and promptly forgot. I am thrilled to see the states fighting for their rights again. I hadn't heard about Montana's gun laws, that is just fantastic!

I am heartsick and frustrated with the amount of federal control being grabbed at this point. I do NOT want the Feds to own the banks. (Jacksonian history is about one place I DO know some history!) I do NOT want the Feds to own a car company. I don't want them controlling my health care.

But what are we, as individuals, to do about it? And is there anyone who will run for office that has any sense of individual (or state!) freedoms?

Anonymous said...

I agree that federal vs. state law is a very confusing and hard to interpret situation. It's coming up a lot now that 13 states have legalized medical marijuana- except marijuana is still illegal by federal law. So legal dispensaries were still being raided by the feds in legal states because they were growing marijuana, which is still illegal. Now Obama said the raids will end, so I'm very interested to see how everything is going to pan out in the future. It's quite an interesting topic and a good example of what happens when state laws are different than federal law.