The Tenth Amendment, then and now, in Red and Blue States

by Martin Harris

It’s declasse in sophisticated Progressive circles to cite quotes about the Constitution by any of the Founding Fathers: the former is so obsolete that it can only be understood by means of detecting and deciphering the “emanations and penumbras” in the archaic language, and the latter is composed of a bunch of irrelevant dead white guys who paid no income tax. Thus, in 1965, the Supreme Court discerned a nowhere-found-in-print “right to privacy” regarding contraception to reverse a Connecticut decision (so much for States’ Rights to be differently-governed “laboratories of democracy” in the Brandeis model) and similarly in 2003 discerned the legality of racial preferences for college admissions in Gratz v. Bollinger, even though Founding Father and first Court member John Marshall had specifically said that “the Constitution is color-blind.” Until recently the modern Court has dealt with the inconvenient fact of the ancient Tenth Amendment (guaranteeing to States, and the public, all governance decisions not specifically spelled out for Federal control in the Constitution) by ignoring it. This explains how, in 1942, SCOTUS rolled the Commerce Clause to rule that an Ohio farmer growing wheat for on-farm-only consumption could be Federally regulated: because the offending crop might have been sold across a State line. Read a summary of Wickard v. Filburn. But just as SCOTUS (following the election returns, to quote a cynical –and fictional– Irish bartender, the Mr. Dooley invented by columnist Peter Dunne) reversed its separate-but-equal Plessy v. Ferguson decision of 1896 with its Brown v. Board decision of 1954, and, some Court-watchers predict, will soon reverse Gratz v. Bollinger with Fisher v. U. of Texas, it may well be that the new red-state/blue-state map will mysteriously motivate the Court to (try to) regain its public credibility by endorsing more State-level Tenth Amendment actions.

Historically, the great Tenth-Amendment-destroyer was Prez 16, who used military force first to attempt tariff collection and then to restrain States which resisted on TA grounds; but more recently the attack from the Left has been more subtle –discrediting “States’ Rights” by repetitive reference to 19th century pro-slavery issues– while quietly exercising their own TA in two major (and lots of minor), areas: one such has been public education, where educators demanded (and got) the right to substitute their own, easier and higher-score-producing, in-State student achievement tests to replace, for publicity purposes, the national scoring system; and the other is now the new health care law, where States have been ordered to set up their own “exchanges” and those who decline (19 and counting, as of this writing) are now being accused of secretly preferring a strong central government over “States’ Rights”. Ya gotta admire (a little red-neck lingo, there) the dialectical skills of the Left (mostly Gentry-, in the corridors of power) in constructing memorable talking points for vigorous reinforcement, as in Michigan, most recently, by the Left (mostly Chicago-, in the streets of cities) in ways which have been remarkably successful in selling their ideology (and “stuff”- promises) to their multi-sector voter base. Indeed, it’s that very success, in both language and tactics, which has so frustrated the traditional-voter Right and thereby raised a nearly-forgotten Tenth Amendment issue from historical oblivion. Indeed, the thuggish behavior of the street-and-stuff Left, earlier this year inside the Wisconsin State House, and outside the New York Stock Exchange, and just recently exercised by a fist-enforcement platoon within a large Lansing rally against right-to-work legislation, is itself evidence of a Tenth Amendment question, although not so far identified as such: shall State governments decide, or shall a Prez-44-dominated National Labor Relations Board decide, the enforcement of union-membership (and, critically, dues-money-flow) rules? Shall private enterprise decide or shall central government decide in which States, say, aircraft-builders can set up shop? In historical irony, it was Leftist (Progressive) Justice Brandeis who endorsed States’ Rights in such matters, via “laboratories for experiment”, and Rightist (Republican) President Lincoln who endorsed central government dominance, via military force as needed.

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While clear ties of recent State-government decisions to the Tenth Amendment principle are sometimes not specified, (think Vermont’s embrace of local student-achievement tests –NSRE and NECAP– to conceal far-more-dismal scores from Federal NAEP tests) sometimes they are. The Oklahoma Tenth Amendment Center (yes, this heartland State with all counties shown red on the recent election map, has one, while Vermont, with all counties shown blue, doesn’t) lists a range of such issues on its website: they range from deeply substantive actions to shallow symbolic gestures. In the former category falls newly-adopted HB 1804, requiring law enforcement to arrest illegal aliens for their illegal presence in the Sooner State; in the latter category falls newly-adopted HB 1330, calling for the placement of a Ten Commandments plaque at the front entry of the Oklahoma City State House. Within the OK TAC, there’s a sense of irony as well.

That perhaps explains why its writers took pains to publish a fairly lengthy historical review of the Tenth Amendment starting with the Jefferson-Madison 1798 Virginia and Kentucky Resolutions and finishing with Vermont’s TA-based Nullification of the 1857 Dred Scott SCOTUS decision. The historians duly report that, under Chief Justice Taney, the Court held that slaves are property, not citizens, and can’t sue for freedom after being re-located to a “free” State, and then they list (with some relish, I’d guess) such now-blue and now-anti-TA States as Vermont, and some of the other five New England States, among the Tenth-Amendment-based Nullifiers. Forgotten history, now being retrieved. The actual language of the Founders is compelling, which perhaps explains why it wasn’t taught in public school even in the old days when your Humble Scribe learned more of it than is taught today. Consider this slightly-shortened quote from Virginia’s Resolution: “…in the case of exercise of powers by the Federal government not granted by the said Compact, the States who are parties thereto have the right and duty to interpose for maintaining the liberties appertaining to them.” As Virginia’s pols wrote in 1788, re their ratification of the Constitution, it was a two-way limited agreement between governments, not a surrender of authority from States to Federal.