The debates over whether Waterboarding constitutes torture or not have been quite heated as of late. Democrats in the Senate have been saying they may not confirm Michael Mukasey as attorney general based on his unclear legal positions on the issue – but some key Dems are now saying that they will approve him.

As CNN reports:

The confirmation of Michael Mukasey as attorney general was all but assured Friday when two key Democratic senators said they will vote in favor of the nominee despite questions about his views on “waterboarding” and the president’s power to order electronic surveillance.

Sens. Dianne Feinstein of California and Charles Schumer of New York announced they would support the retired federal judge from New York just hours after the chairman of the Judiciary Committee announced his opposition to the nominee.

The concern from the opposition is that Waterboarding constitutes torture, and thus, would be in violation of the Geneva Conventions – a treaty to which the US government is a signer. Unfortunately, though, no one in a position of political leadership has even brought up the 8th Amendment – and it’s prohibition on the federal government engaging in activities that constitute “cruel and unusual” punishment – but even that’s not my main concern.

It’s the 10th Amendment which should’ve been invoked repeatedly in these hearings.

Let me explain.

The Constitution was written under what’s called “positive grant.”  What this means is quite simple – the federal government is authorized to exercise only those powers which are delegated to it by the Constitution.

This principle was so important to the founders that they codified it in law as the Tenth 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.”

Pretty simple, right?  You’d think so.  It’s pretty clear to me what this means – if the Constitution doesn’t authorize the federal government to do something, then it cannot.

Thus, here’s a few things that the 10th Amendment prohibits the feds from doing:

  • Defining Waterboarding – or any other word, for that matter
  • Engaging in Waterboarding.

As a matter of fact, a quick reading of the Constitution would verify that the practice of Waterboarding is never even mentioned.  So why is this an issue?

Because the politicians and the bureaucrats would like to make sure that we’re all distracted from the real issues.  They want to keep us in semantic arguments about what words mean – so as to avoid what they dread – the 10th amendment’s limitation of their powers.

This issue is just a microcosm of the problems facing us in regards to the US federal government.  It’s completely out of control – and the first step to reigning it in would be to start demanding a strict adherence to the principle of positive grant – as enshrined in the 10th Amendment.

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.”



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The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.