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....)


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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.


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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.


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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....


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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.

Sigh.

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.

But...

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*.


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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....