by Josh Eboch
Most articles that seek to demonize the Tenth Amendment movement are so rife with logical and intellectual fallacies that even responding to them is a waste of time. However, in the case of Dan Casey, blogger for the Roanoke Times, an exception must be made.
For starters, Casey is writing in my (and Thomas Jefferson’s) home state of Virginia, and his piece, “The Whole Tenth Amendment Business is Dumb and Crazy” actually links to the Virginia Tenth Amendment Center, which I helped to found.
But, more importantly, in his article, Casey attempts to smear the brilliant men who wrote the U.S. Constitution by claiming the document doesn’t mean what they explicitly said it meant.
As James Madison might have said, there is a host of proofs that Dan Casey is dead wrong.
Like so many others before him, Casey leads his attack with a flaccid attempt to discredit the “Tenthers” (as he pejoratively calls them) by linking constitutionalism with support for slavery.
Of course, this completely obscures actions by Tenthers of an earlier era, who used the 10th Amendment as the prime justification for the “States Rights†argument that itself was a smokescreen for the real cause of the Civil War — the South’s insistence on preserving slavery.
Behold straw man number one: The Tenth Amendment is code for racism. Casey is either ignorant of the fact that many Northern states used the Tenth Amendment as a justification for undermining slavery long before 1861, through their refusal to enforce the Fugitive Slave Acts, or he has chosen to ignore that inconvenient part of history.Â
Either way, it doesn’t matter. Historical accuracy is not Casey’s goal. He merely intends to color his readers’ perception of Tenthers by linking them, however spuriously, with Southern slaveholders. To acknowledge the truth about the history of states’ rights in the North might disrupt his narrative of unquestioning obsequiousness to centralized power.
Casey continues:
But apart from aligning themselves with slaveholders, there’s another more fundamental flaw in the whole modern Tenther argument. In a nutshell, it’s this: Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.
In fact, the larger document directly contradicts the Tenthers’ argument. That’s right — words the founding fathers quite deliberately wrote into the Constitution clearly and effectively rebut the Tenthers’ faulty reasoning.
It’s hard to imagine where Casey got this impression, considering that James Madison himself described the document he helped to write by saying
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.
Thomas Jefferson also knew the Tenth Amendment was more than just “a single sentence.” He called it the Constitution’s foundation:Â
I consider the foundation of the Constitution as laid on this ground: All powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.
It really cannot be any clearer than that. The self-serving opinions of Dan Casey and myriad federal judges notwithstanding, if the people and the states didn’t explicitly surrender a power in the Constitution, then they still retain it. Whether or not they choose to exercise it is another story.
But if federal power is limited to what is enumerated in the Constitution, Casey asks, why do we need a Bill of Rights at all?
The problem for the Tenthers here is that the First Amendment has nothing to do with what Congress can do. It’s all about what Congress can’t do.
And this is where the Tenthers’ entire argument falls apart. Because under Tenther-logic, unless the Constitution permitted the feds to establish religion, or abridge freedom of speech and so on, then the feds would automatically be prohibited from doing it.
Obviously, the founding fathers themselves did not believe that, or they never would have felt the need to write the First Amendment in the first place.
Here Casey has a point, although not the one he thinks. He is right, the feds are automatically prohibited from doing any of the things he lists, just as they are prohibited from requiring every American to buy health insurance, based on the fact that those powers are not delegated under Article 1 Section 8. Â
But, more importantly, many of the founders themselves argued against the Bill of Rights for the same reason as Casey: It should not be necessary.Â
Alexander Hamilton said
…bills of rights… are not only unnecessary in the proposed constitution, but would even be dangerous. …For why declare that things shall not be done which there is no power to do?Â
If there is any argument to be made against the Tenth Amendment, it is Hamilton, not Casey, who has made it.
The Bill of Rights should never have been needed. Every one of the first 10 Amendments is essentially legally redundant based on the text of the Constitution itself.
But, over time, activist judges and complicit politicians have turned the entire document on its head, until the only rights left to the people are those explicitly granted, while the only powers not yet claimed by government are those explicitly prohibited.
Yet Casey calls Tenthers, who only want the Constitution’s clear language enforced, ”intellectual boobs who can’t be bothered to think for themselves.” Apparently, thinking for oneself means ignoring the purpose of our founding documents, and gratefully acquiescing to federal tyranny.
Those of us who demand liberty are feared and ridiculed by weak minded men like Dan Casey who consider themselves intelligent, but are really nothing more than errand boys for the State.
As Samuel Adams once said
If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen.
I'm used the standard response about the tenth (and indeed, the 'originalist' view of the Constitution) being equivalent to support for slavery. This view usually comes from 'educated' folk — the higher the education, the more likely I was to hear that assertion. I don't know what causes such dementia, nor do I care — I will continue to cling to my 'outmoded' understanding that liberty is our birthright, that there are limits to the legitimate powers of government.
You have to begin to wonder why they attack the constitution as it is written versus the one they imagine through the philosophy of 'living constitution'. A constitution is basically the highest law in the land because no law created can conflict with what is written in the document. Neglecting the constitution's original intent or literal text interpretation allows that law to be negated constantly which allows laws created by the legislature to become the supreme law. Have you notice that statutes written by the legislature are never 'living' but static and have a concrete meaning yet the constitution's meaning always has to change in order to fit what the legislature wants? It seems almost diabolical if you ask me.
Well done, Josh. And who would have thought you could make your point without calling Mr. Casey names. Astounding! Simply astounding!
More thoughts here: http://taccommunications.blogspot.com/2011/02/sti…
"As James Madison might have said?" That's the keeper in this post.
"The Bill of Rights should never have been needed. Every one of the first 10 Amendments is essentially legally redundant based on the text of the Constitution itself."
Great point! Every power not granted is denied irrespective of the so-called Bill of Rights.
The failure of Casey to grasp this principle shows he is truly ignorant and/or nothing but a mouth piece for the liberal left that believes in bigger and more powerful government.
"The Bill of Rights should never have been needed. Every one of the first 10 Amendments is essentially legally redundant based on the text of the Constitution itself."
Exactly what I tried to explain to Dan Casey in the comments section of his blog post. I brought Federalist #84 to his attention. He responded by saying:
"The drafters of the U.S. Constitution carefully considered Hamilton’s argument and rejected it, and I am siding with their argument."
I guess he doesn't know that Hamilton left the Philadelphia convention very early on and that he didn't write Federalist #84 until long after the Constitution had already been drafted and submitted to the states for ratification. He's going to "address this more at length in a post Monday." I can hardly wait…
The necessary and proper clause basically states that congress has the power to write whatever laws needed for the implementation of existing powers. It does not say congress has the power to write whatever laws it wants but rather it says that congress only has the powers to write laws for existing powers stated in the constitution.
Even if the nececssary and proper clause in the original document had provided Congress the power to write any law it felt was 'necessary and proper', that ability stopped once the Constitution was amended by the 10th Amendment!
The argument that earlier/original language controls an amendment is specious. By definition, an amendment changes the existing document and necessitates that the existing document conform to the parameters defined by the amendment. The concept that an amendment must comform to the document it has CHANGED is ludicrous!!!
I think you misunderstood what I was saying. I was saying the NandP clause only gives congress the power to write laws necessary and proper for the existing powers given to it in the constitution. It can't write laws for necessary and proper for the execution of powers it does not have. The clause itself limits the scope of laws it can pass that are needed for existing powers only and nothing else or it would have said it had power to write laws necessary and proper for the anything it wanted. It does not say that. It says that it can write laws needed for the execution of existing powers.
I really don't know what you are saying in the second paragraph…
Do you actually read a book in the same way? Does you interpretation of the text change as you advance from one chapter to the next? Doing so would allow you to alter the beginning of the story to whatever form you want in order to conform to your current interpretation as advance through the story. The proceeding events in the story will always change in order to conform to your present interpretation and by the time you are done you would have imagined as many different stories are their sentences in the book. The author of the story definately does not write a thousand different stories. They write one story with a clear meaning for the reader.
nice analogy!
Dan Casey's own blog description: "Metro Columnist Dan Casey knows a little bit about a lot of things but not a heck of a lot about most things."
Need anything else be said?
As a whole–the constitution allowed slavery (keep reading). There was no specific ban and there was no argument strong enough that could be made to make it illegal. It ultimately took a war and an amendment to end slavery. Despite the flaw in the constitution it still doesn't negate the benefits of a constitutional legal system nor does it mean the principles of what the constitution was written on were bogus to begin with. It just means that the law, up till that point in time, was insufficient for dealing with the problem. The writers of the constitution made many attempts to fix an already existing condition but could not do so because of the political forces involved. It took a war and an alteration to the supreme law of the land to finally do what the writers attempted to do in the first place.
People who try to say that the original viewpoint of the constitution is a form of racism are simply trying to make it immoral to have an originalist view of the constitution by equating it with something deeply immoral.
I do not believe the US Constitution had ever authorized the federal government to force our free States, to convert their jails into slave pens, or to force their citizens, to become slave catchers.
I can't remember if it was Byron Paine or Sherman Booth who made exactly that point when Wisconsin was in the process of nullifying the Fugitive Slave Act of 1850.
I believe that Judge Smith of the Wisconsin Supreme Court had historically espoused such likewise sentiments, and I have indeed noticed Byron Paine’s point, that there seems to be far more reason to believe that the free States would not have consented to the union, if they had supposed that a clause had granted congress the power to make slave hunters of their people, then to believe that the South would not have consented to the union without such a clause.
My argument is this: Since Dan likes to (incorrectly) point out that if the Bill of Rights prohibit certain acts of the federal government then the rest of the Constitution allows everything else. The truth is that in Federalist #44, James Madison argued that since the Powers given to Congress in Article I, Section 8 are limited, they are the Ends, whereas the “Necessary and Proper” clause is the Means. Without the “Necessary and Proper” clause the Constitution would be a dead document (you can’t grant powers and then tell them they can’t use them). If the Federal Government has such broad powers only limited by the Bill of Rights, why, I ask, was the “Necessary and Proper” clause included? If the Federal Government had such broad and sweeping powers, the “necessary and proper” clause would have been unnecessary (no pun intended).