by Paul Gottfried

One of the stupidest attacks on advocates of the Tenth Amendment that I’ve recently seen was written by Brian Hicks and published in The (Charleston) Post and Courier on March 20. According to Hicks, South Carolina state legislators who are paying undue attention to the Tenth Amendment are “a bunch of guys obsessed with nineteenth century history” but “haven’t learned much from it.”

“The last time they got uppity and began mouthing off about states’ rights, we got our butts kicked.” Hicks goes on to explain that states’ rights really mean for most of its proponents the “race issue.”

And even before that became the case, according to one history professor at the College of Charleston, the term “has a tragic history in the life of our state. It harks pretty clearly to the nullification controversy. It began with the unsuccessful attempt of South Carolinian to resist the high tariff signed into laws by Andrew Jackson in 1832 and ended in disaster. The controversy dragged on for a couple of years, egged on by John C. Calhoun, until the state finally backed down.” But “resident busybodies didn’t shut up and kept fanning the flames until finally they just decided to secede. And we all know how that turned out.”

Yes, we all know how that turned out. Since the defeat of the secessionist South in 1865, the feds have been in charge of the military means of making any defiant state government compliant with its orders.

Therefore, it was only a matter of time before we reached our current condition, in which the states became only submissive tools for carrying out the will of a centralized federal administration (which in fact has no constitutional standing except as an indeterminate extension of executive power).

This, by the way, has nothing to do with defending the institution of slavery, which we are certainly well rid off. It’s about a growing federal bureaucratic dictatorship, which neither of our two publicly financed national parties is willing to touch.

For Hicks’s information, James Madison, one of the authors of the Constitution, defended the doctrine of nullification, most famously in the Virginia and Kentucky Resolutions of 1798. The notion that state governments could “interpose” themselves between an odious federal law, as were the bloated tariffs of 1828 and 1832, and the citizens of their states has a pedigree going back to the late eighteenth century.

The authors of the Tenth Amendment clearly believed in the right of nullification, and if Jackson put down the resistance to it mounted by the residents of the seaport of Charleston, he did so by threatening military force. He was not making a constitutional argument of any kind.

There is one point on which Hicks may be correct, namely that South Carolina Republicans who are unhappy about usurpations of power under Barack Obama did not seem to care when “the last administration was stripping away all our constitutional rights with the Patriot Act.”

But there are two obvious responses to this partly justified charge. One, for many decades all kinds of supposed defenders of states’ rights have invoked this principle quite selectively. If New Deal-Great Society Democrats discovered the Tenth Amendment when they were opposing the racial integration of public and private institutions in Southern states, the putative allies of Mr. Hicks are at least as hypocritical when they scream states’ rights in order to allow gay marriage and the legal use of marijuana.

How can Hicks be so blind to the fact that it is liberal Democrats who are out in front in the hypocritical appeal to states’ rights on behalf of their socially liberal agenda?

Two, it is simply untrue that those who favor a new emphasis on the Tenth Amendment are all fans of the Bush administration and its liberal internationalist foreign policy. Certainly this judgment would not apply to Ron Paul, Chuck Baldwin or the millions of followers of these recent presidential candidates.

The Constitution Party, the Campaign for Liberty and other groups that are part of the Tenth Amendment movement are overwhelmingly composed of critics of the Bush administration. While there may be GOP politicians who have climbed on board, most of the Republican supporters I’ve met do not strike me as stand-ins for Karl Rove and John McCain.

Moreover, it is possible that some Republican legislators did vote for the Patriot Act because they were genuinely concerned about national security after 9/11. This vote does not mean these legislators also favored a further extension of the federal administration into such domestic matters as social policy and taxation.

On the other side, however, are the assorted hypocrites in Hicks’ camp, who complain about federal surveillance in dealing with terrorism but who adore federal snooping to uncover “discriminatory” business practices and “gender-discrimination,” or to regulate the flow and direction of tobacco smoke.

Why is having the ATF or another part of the federal government control our smoking or hiring habits any less of a federal interference than the Patriot Act? The answer is of course self-evident. All forms of federal interference that serve the ideological ends of people like Mr. Hicks are perfectly acceptable.

Paul Gottfried is Raffensperger Professor of Humanities at Elizabethtown College in Pennsylvania, and a Guggenheim recipient. He is an adjunct scholar of the Ludwig von Mises Institute, and a contributor to Taki’s Magazine, and many other websites.  He is the author of eight books, with his most recent being Conservatism in America: Making Sense of the American Right (Palgrave-Macmillan, 2007)

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