Conservatives rally around the Tenth Amendment

Matt Purple Fellow, Defense Priorities
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It’s only 28 words long: “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.”

But the Tenth Amendment to the Constitution is having a powerful effect on conservative ideology these days. Libertarian activists are citing the amendment with renewed fervor and many politicians have been heard reciting it recently as well.

“The reality is the Tenth Amendment really defines what the Constitution was supposed to mean,” Michael Boldin, founder of the Tenth Amendment Center, told The Daily Caller.

On Capitol Hill, a group of Republican congressmen recently founded the Tenth Amendment Task Force, with the goal of “Dispers[ing] power from Washington and restor[ing] the constitutional balance of power through liberty-enhancing federalism,” according to their website.

Utah Republican Rep. Rob Bishop, one of the founders of the Task Force, told TheDC that the issue of the Tenth Amendment really resonates right now because of the ideological battle going on in Washington.

“We have an administration for the first time in a long time that is not necessarily pragmatic, but is very philosophical. And it’s sharpened the debate as to what should be the role of the federal government,” he said.

Other members of the Tenth Amendment Task Force include Republican Reps. Marsha Blackburn of Tennesee and Jason Chaffetz of Utah. Bishop insists that their cause is bipartisan and they plan to reach out to Democrats as well.

And it’s not just House Republicans that have a revived interest in the Tenth Amendment. Several state attorneys general are suing the federal government over the new health care bill on Tenth Amendment grounds. Minnesota Republican Gov. Tim Pawlenty has voiced support for the importance of the amendment and Virginia Republican Gov. Bob McDonnell has also mentioned the Tenth Amendment favorably.

The Tenth Amendment is particularly popular at the state level. After Barack Obama’s election, a handful of states introduced state sovereignty resolutions, which pledged to fight unconstitutional laws.

States have also rebelled on issues ranging from gay marriage to medical marijuana. After Congress considered adopting a national identification card in 2007, 25 states passed laws in opposition, effectively killing the idea.

The Tenth Amendment is one of the most controversial parts of the Constitution, since many argue that it would require a massive transfer of power from the federal government to the states. Its language forbids the federal government from taking on powers that aren’t assigned to it in the Constitution.

This made the Tenth Amendment a key issue during the health care debate for many on the right. Since health care isn’t specifically mentioned in the Constitution, went the argument, the federal government couldn’t regulate it.

Many progressives say that’s absurd. Ian Millhiser, a policy analyst at the Center for American Progress, cautions that conservatives are interpreting the Tenth Amendment too narrowly, and that such a reading would abolish popular programs like Social Security and Medicare.

“[T]here is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance,” Millhiser wrote in an article for the American Prospect.
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.