by Josh Eboch
Most articles that seek toÂ 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 writingÂ in my (and Thomas Jefferson’s)Â 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 whoÂ wroteÂ the U.S.Â Constitution by claimingÂ the documentÂ doesn’t mean what they explicitly said it meant.
As James Madison might have said, thereÂ is a host of proofs that Dan Casey is dead wrong.
Like so many others before him, Casey leads his attack with a flaccidÂ attempt to discredit the “Tenthers” (as he pejoratively calls them) by linkingÂ constitutionalismÂ 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 â€œStates Rightsâ€ argument that itself was a smokescreen for the real cause of the Civil War â€” the Southâ€™s insistence on preserving slavery.
BeholdÂ straw manÂ 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,Â throughÂ 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.Â Historical accuracy is notÂ Casey’s goal. He merely intendsÂ to color his readers’ perception of Tenthers by linking them, however spuriously, with Southern slaveholders. To acknowledge the truth about the history ofÂ states’ rights in the North might disrupt his narrative of unquestioning obsequiousness toÂ centralized power.
But apart from aligning themselves with slaveholders, thereâ€™s another more fundamental flaw in the whole modern Tenther argument. In a nutshell, itâ€™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 Tenthersâ€™ argument.Â Thatâ€™s right â€” words the founding fathers quite deliberately wrote into the Constitution clearly and effectively rebut the Tenthersâ€™ faulty reasoning.
It’s hard to imagine where Casey got this impression, considering that James MadisonÂ himself described the document heÂ 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.
ThomasÂ Jefferson alsoÂ knewÂ the Tenth Amendment was more than just “a single sentence.”Â He called itÂ 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 toÂ the states, are reserved to the states or to the people.
It really cannot be any clearer than that.Â The self-servingÂ opinions of Dan Casey and myriad federal judges notwithstanding, if the people and the states didn’tÂ explicitly surrender a powerÂ 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, whyÂ do we needÂ 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. Itâ€™s all about what Congress canâ€™t do.
And this is where the Tenthersâ€™ 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 fromÂ doing any ofÂ the thingsÂ he lists, just as they are prohibited from requiring every American to buy health insurance,Â based on the fact that those powers are not delegated under ArticleÂ 1 Section 8. Â
But, more importantly, many of the founders themselves arguedÂ againstÂ the Bill of Rights for the sameÂ reason as Casey: It should not beÂ necessary.Â
Alexander HamiltonÂ said
If there is anyÂ argumentÂ to be made against the Tenth Amendment, it isÂ Hamilton, not Casey, whoÂ 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,Â activist judges and complicit politiciansÂ have turnedÂ theÂ entire documentÂ on its head, untilÂ the only rights left to the peopleÂ are those explicitly granted, while the only powers not yet claimed by government are those explicitly prohibited.
Yet CaseyÂ callsÂ Tenthers, who only want the Constitution’s clear languageÂ enforced,Â “intellectual boobs who canâ€™t be bothered to think for themselves.”Â Apparently, thinking for oneself means ignoring the purpose of our founding documents, and gratefully acquiescing toÂ federal tyranny.
ThoseÂ of us whoÂ demand libertyÂ areÂ feared and ridiculed by weak minded men like Dan CaseyÂ 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.