Conservatives rally around the Tenth Amendment

Millhiser and other progressives have dubbed conservative supporters of the Tenth Amendment “tenthers,” in order to delegitimize their interpretation of the Tenth Amendment. It’s a play on the term “birthers” which refers to those who believe Obama wasn’t born in America. Millhiser calls conservatives’ interpretations of the Tenth Amendment “no less radical [than the birthers] but infinitely more dangerous.”

But conservatives wouldn’t necessarily be the only ones to benefit from the “tenther” interpretation of the Tenth Amendment. Strict enforcement of the Tenth Amendment could be a boon to many progressive issues as well, from ending the drug war to abolishing the Patriot Act. Already, many localities have protested federal immigration laws through the establishment of sanctuary cities, which don’t deport illegal immigrants.

Earlier this month, a Massachusetts judge struck down the Defense of Marriage Act, which defined marriage as solely between a man and woman, on Tenth Amendment grounds.

Boldin said it’s a mistake to think of the Tenth Amendment as Democrat or Republican, liberal or conservative.

“It’s about liberties and limiting the federal government to certain enumerated powers,” he said.

There’s also some disagreement between politicians and activists as to what the Tenth Amendment should mean. Bishop said the Tenth Amendment was less about abolishing certain programs and more about restoring balance between the federal government and the states.

Boldin said that wasn’t good enough.

“Obviously it’s not a popular position to say, oh, Social Security is a violation of the Constitution. But the way we see it, it is,” he said.

The controversy over the Tenth Amendment goes back to early American history. The Anti-Federalists, concerned about a monarchy, included the Tenth Amendment in the Bill of Rights to limit the government’s power. Upon its passage, Thomas Jefferson called the Tenth Amendment “the foundation of the Constitution.”

The battle over the Tenth Amendment later became pronounced between James Madison, who had a strict interpretation, and Alexander Hamilton, who had a much looser interpretation.

But generally Jefferson’s view of the Tenth Amendment ruled until Franklin Delano Roosevelt’s New Deal. After Supreme Court judges struck down many of FDR’s reforms on Tenth Amendment grounds, Roosevelt threatened to expand the high court with his own appointees. Judicial opposition quickly collapsed.

The Constitution’s complement to the Tenth Amendment is the Commerce Clause, which states, “[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

Many progressives contend that this gives the federal government broad power to regulate anything that affects commerce. This reasoning was adopted by the courts during the New Deal.

Others claim that “regulate” meant something different during the late-1700s — literally to “make regular.” They argue the Commerce Clause was just supposed to block states from establishing tariffs and sanctions against each other that could hamper regular trade.