Concordia res Parvae Crescunt
By Dr. Troy Kickler
As I learned when recently delivering a lecture, the 10th Amendment is getting a lot of attention. Tenthers — those believing the federal government’s authority should be strictly limited to the enumerated powers in the Constitution — are passionate. Their opponents are equally passionate.
One person asked me if Tenthers’ argument had any constitutional legitimacy. My answer was, well, yes.
The 10th Amendment simply states: “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.”
Since 1789, the major political question has been concerning the paradox of dual sovereignty: To what extent shall we be national and to what extent shall we be federal? To what extent shall the United States government be sovereign and to what extent shall a state be sovereign?
Historically, the 10th Amendment has been used to preserve regional particularism and resist centralization. During the 1850s, some Northerners used the 10th Amendment as a justification to ignore the Fugitive Slave Law, and after Lincoln was elected, some Southerners used it as an excuse to preserve slavery.
During the Civil War, some northern governors invoked it to resist Lincoln’s centralizing tendencies, while some Confederate governors, including North Carolina’s Zeb Vance and Georgia’s Joe Brown, used states’ rights arguments to resist Jefferson Davis’ policies, including conscription.
A lot of contemporary liberals don’t have much sympathy for the 10th Amendment, however. “This argument has been used to stop progress, and to not keep hope alive,” said commentator Alan Colmes. “If the tenthers had their way, there would be no Medicare, no Social Security, even no public education. How about Every Child Left Behind”
What a simplification!
The 10th Amendment does not prevent states from having public education or creating welfare systems — to name two examples. In fact, North Carolina had public schools during the antebellum era.
Although it has problems, TennCare, a government-operated medical assistance program, has existed in the Volunteer State since 1994. Again, the argument is whether such programs should be created or heavily controlled and directed by the national government.
Invoking 10th Amendment concerns about sovereignty is nothing new.
In 1788, North Carolina balked over ratifying the Constitution and relinquishing more of its power to a centralized government. It remained out of the Union for a year, and in many ways, acted as a quasi-nation.
In 1818, the Tar Heel State levied a tax on out-of-state banks doing business in North Carolina, and charged each branch $5,000. The state snubbed its nose at a national bank: The Bank of the United States.
In a truly federal government, regional particularism lives. Sometimes it can be ugly and immoral. Other times it showcases genuine progress. Sometimes the argument “It’s just the way things are done here” is good enough for me; everyone doesn’t have to think like me.
In a truly federal government, Massachusetts could allow same-sex marriages and bar the Ten Commandments from public displays. In a truly federal government, Alabama could display the Ten Commandments in state courtrooms and outlaw same-sex marriages.
Until State of Missouri v. Holland (1920), migratory bird hunting was regulated at the state level, and in a truly federal government, it would be so today. In a truly federal government, states would make laws concerning abortion, health care, and many other issues.
And in a truly federal government, these states would continue to trade with each other and join forces in times of national emergency.
As government becomes more centralized, and states relinquish authority, the powerful redouble their efforts to make others act (and believe) like them.
Originally published in CarolinaJournal.com – reposted here with permission of the author.
Troy Kickler [send him email] has been Director of the North Carolina History Project since August 2005. He holds an M.S. in Social Studies Education from North Carolina A&T State University and a Ph.D. in history from the University of Tennessee. His specialty areas are nineteenth-century U.S., Civil War and Reconstruction, African American, and religious history.
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“In any event, I’m personally not inclined to just give the answer to someone like that when I know it. Lead him in the right direction, yes. But give him the answer? Hell no!â€
Yep! that’s how we got into this unaccountable mess in the first place.
Very good article. Thanks for posting.
This line gave me a good chuckle (and I need one now and again):
One person asked me if Tenthers’ argument had any constitutional legitimacy. My answer was, well, yes.
LOL! I think my answer would have been more along the lines of -- "hmmm ... that's a great question, why don't you consult the constitution on it."
Great article!!
“In any event, I’m personally not inclined to just give the answer to someone like that when I know it. Lead him in the right direction, yes. But give him the answer? Hell no!”
Yep! that’s how we got into this unaccountable mess in the first place.
Bryce,
Y'know, I don't know how many times and how many different ways I've said this in the past (a bunch, let's put it that way), but I think it bears repeating again -- if the ninth and tenth amendments are effectively rendered meaningless, then you may as well throw the entirety of the Bill of Rights (yep, including the sacred first amendment) and the Constitution itself on the ash heap, because, in that event, its all worth less than the paper its written on, right down to the dotting of the "i's" and the crossing of the "t's".
Concerning the individual who asked the question, "is there any constitutional legitimacy in the "Tenthers'" argument?," I can almost envision this person thinking to himself "hmmm., I wonder why the tenthers are called tenthers?" In any event, I'm personally not inclined to just give the answer to someone like that when I know it. Lead him in the right direction, yes. But give him the answer? Hell no!
Derek,
This is not going to be a very satisfactory answer to your question, but I'm willing to take a stab at it nonetheless, even as I'm compelled to point out that I'm by no means a constitutional expert, nor by any other means an expert on the much maligned fourteenth amendment. So here goes:
The SCOTUS has ruled numerous times over the course of the last hundred years or so that the fourteenth amendment gives the federal courts jurisdiction to apply the particular provisions of the Bill of Rights to the States. And it (The Court) seems to make no great distinction between doing so to protect the inalienable rights of the People on the one hand, and to deprive them of their rights on the other, which is merely my opinion but there ya go. Kelo et al vs. New London is a case in point, and as I recall (it's been a while since I read the court's opinion in the case, so don't put a whole lot of faith in what I say on the following point) the Court, in Kelo, cited several earlier rulings to establish this. So, Kelo is probably as good a place as any to start looking if you want to establish what the Court's position is concerning your question about the fourteenth amendment and how it might apply in such a case.
Beyond that, there is, of course, Article IV to contend with. More particularly Article IV, section I, or, "The Full Faith and Credit Clause" as it is called.
Question: If a same sex couple is wed in a state that allows such unions, and they then visit or move to a state that does not, is that state bound by the 14th Amendment to recognize the same sex union?
Exactly Terry.
It's astounding how sacred the 1st Amendment is to some people, while they may or may not know anything about the less 'popular' amendments in the bill fo rights (we're changing that) such as the 10th. It's that favorite tactic of the ignorant- minimizing the importance of what one knows little about.
Very good article. Thanks for posting.
This line gave me a good chuckle (and I need one now and again):
One person asked me if Tenthers’ argument had any constitutional legitimacy. My answer was, well, yes.
LOL! I think my answer would have been more along the lines of -- "hmmm ... that's a great question, why don't you consult the constitution on it."
"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."
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