The Tenth Amendment Is Fine the Way It Is

September 28th, 2011

By Dan Miller

Here is a good article from The Ohio Farmer, quoting James Madison in the Federalist Papers:

The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.… The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Shortly before announcing his presidential candidacy, Governor Perry said,

Our friends in New York passed a statute that said marriage can be between two people of the same sex. And you know what?  That’s New York, and that’s their business, and that’s fine with me.  That is their call. If you believe in the 10th Amendment, stay out of their business.


Discussing abortion with some journalists a few days later, he reiterated, “You either have to believe in the 10th Amendment or you don’t.  You can’t believe in the 10th Amendment for a few issues and then [for] something that doesn’t suit you say, ‘We’d rather not have states decide that.’” By the time Perry announced his presidential candidacy he had come to discover theretofore hidden wisdom in the adage that a foolish consistency is the hobgoblin of little minds. After being criticized by groups opposed to same-sex marriage and abortion, he declared himself  in favor of amending the Constitution to prohibit the former and restrict the latter.  (emphasis added)

I agree with Governor Perry’s interpretation of the Constitution. It is perverse for the federal government to violate the Constitution by doing things for which it lacks constitutional authority. With an express authorizing amendment, there is no such violation and that problem at least does not arise. The Constitution could be amended to do many things, some good, some stupid and some bad. Until that happens, the federal government’s powers are appropriately limited by the Constitution as it is.  As the author notes,

It would be very useful to have a rule drawing a bright line between where the states’ proper authority ends and the federal government’s begins.  The 10th Amendment – “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” – is probably not that rule. Court decisions and legal scholars have, for the most part, treated the amendment as a tautology, one stipulating that the federal government must not do that which the federal government must not do.

Even if conservatives can’t find or draw the bright line that makes sense of federalism, however, they do not have to think of federal power on the principle of the Cole Porter song that became popular during the New Deal – “Anything Goes.” The New Deal sensibility viewed the involvement of the federal government as the preferred and almost automatic option for addressing any social problem, placing the burden of proof on those who opposed each new expansion of the federal authority to show, specifically, how it exceeded the federal government’s proper sphere.

The Constitution was written to make constitutional amendments very difficult. That is a good thing.  While the difficulty in writing a definitive amendment defining marriage or prohibiting abortion would be relatively minimal, ratification would be more difficult.

It would be very difficult to frame an amendment defining adequately, for all times and beyond the ample clarity of the Tenth Amendment, what precise limits the Constitution must place on the exercise of federal power.   Referring to the quote provided above from the Federalist Papers, the article suggests:

The challenge, then, is not to come up with a clear, simple rule [by constitutional amendment] that fixes the federal-state boundary. It is to reestablish the pre-New Deal presumption that the logic of the Constitution places the high burden of proof on those who advocate, rather than those who oppose, federal government activism.  In the absence of a compelling case that protecting the lives, liberty, and property of the people requires such activism, constitutional conservatives will seek to forge a consensus against it, in courthouses, legislative chambers, coffee shops… and polling booths.

My personal views — and those of judges — on abortion and on what should constitute marriage should be irrelevant in interpreting what the Constitution presently means about them. They are, however, highly pertinent in deciding for which candidates I should vote.  The best way to get the federal government out of state business is via the federal electoral process. Constitutional amendments should be a last resort, to be proposed only reluctantly and very carefully.

(This article was first published at The PJ Tatler.)

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