Some regular followers of the Tenth Amendment Center’s work may wonder why we spend time focusing on some state and local policies, such as the increasing militarization of law enforcement or state and local police drone surveillance. After all, aren’t these sorts of thing left to the states, according to the Tenth Amendment?
Some might argue that the TAC should stick to focusing on the feds and not pay attention to bad policies at the state or local level. On the surface, this argument seems logical, but it misinterprets both a practical and philosophical understanding of the Tenth Amendment.
When the founding fathers drafted the Constitution at the Philadelphia Convention, certain limited powers were delegated to the new federal government. All remaining powers were left to the states and the people. But limitations on federal authority don’t infer that states should indiscriminately exercise every conceivable power. The Constitution wasn’t written simply to promote state governments. The American political system was conceived to limit centralized authority in a federalist system.
Why? Because decentralization best preserves liberty.
Put differently, just because the states aren’t prohibited from doing certain things under the U.S. Constitution doesn’t mean state government should do those things.
Apart from the Supremacy Clause, limitation of state authority is an issue that is left to the people of those respective states. When states threaten freedom, the people should endeavor to limit state power. The Tenth Amendment was ultimately written to protect individual liberty, not just the powers of the state governments.
We must remember that it is not the states that are sovereign, but the people who comprise them. That’s why the phrase “or to the people” is included in reference to reserved powers. Politically, this means all government authority originates from the people, not the government institutions themselves. Thomas Jefferson expressed this sentiment in the Declaration of Independence when he wrote that the just powers of government derive from the consent of the governed.
As historian Tom Woods writes:
“In the American system no government is sovereign. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.
In short, laws that violate individual rights are immoral, no matter what level of government passes it, and the Tenth Amendment was not designed to restrict opposition to state tyranny.
There are also practical reasons why we should call out bad state and local policies. The most aggressive state or local policies are generally those helping the federal government enforce or implement unconstitutional federal programs, laws, or goals. In other words, the feds have their hands in many of these policies that appear purely state or local on the surface.
For example, the feds fund automatic license plate reader programs at the state and local level, then tap into the information gathered. It allows the DEA to run its national license plate tracking program without having to maintain and staff its own equipment. If states limit the information their police can collect, and prohibit sharing it, it thwarts the federal program.
One notorious way the feds work through and manipulate state policy is through federal grants.
In the 1937 case of Steward Machine Co. v. Davis, the SCOTUS ruled that the feds could provide states with funds to implement programs that Congress itself had no power to write into law. As a result, state and local governments conform to the will of D.C. in order to obtain federal dollars. The feds use the money as leverage to manipulate the states into serving their interests. In essence, federal grants provide the federal government a way to do an end-around past its constitutional limits.The amount of federal money handed out has steadily increased from $24 billion in 1970 to $640 billion in 2015.
An example of this is the Common Core educational standards, Many states adopted these federal guidelines in the hopes of getting their hands on as much of the $4.35 billion in federal grant money being offered as possible. The feds have no authority to implement educational standards. By dangling of cash, they can do it anyway.
Then there is the War on Drugs, which has given the feds an excuse to fund and equip local police departments to the point where they resemble paramilitaries. Within a ten year period alone, police departments throughout the country received a total of $34 billion in federal grants. In 2011, the Pentagon gave away $500 million as part of a program for improving law enforcement capabilities.
Police departments can pad their budgets from asset forfeiture, a practice mainly used to enforce unconstitutional drug laws. Or, they can take advantage of a federal gadget transfer program.
So, not only can the states erode liberties on their own accord, but frequently we find that they are merely being pulled by strings held by their federal puppet master. To avoid addressing these laws is to give the feds a loophole to crawl through. By stopping the states from pursuing these policies, we also limit the power of the federal government.
The Tenth Amendment was not included in the Bill of Rights to put shackles on proponents of liberty for the sake of state powers. It was to protect powers not delegated to the federal government and a reminder of where the feds derived those powers in the first place; not the states, but the people whose consent both governments require.