Hypocritically Correct

Amendment X 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.

Hypocrisy and politicians! There is nothing new in this love-match made by Cupid’s arrow of self-interest, right? Wrong, in the current flurry of state legislatures passing or considering resolutions asserting state sovereignty, many politicians are doing the right thing for the wrong reasons.

With close to 30 states having approved or currently considering resolutions of sovereignty, it is noteworthy how many Republicans are now standing up to be counted as defenders of the Constitution, especially after their silence during the Bush administration’s eight-year-assault on the Bill of Rights. And what of the Democrats who were formerly vehement critics of Bush’s actions? They have suddenly gone silent as the Obama administration continues many of Bush’s policies they once opposed. Hypocrisy and partisan politics, of course, but above this is a more fundamental issue involving the Tenth Amendment to the U.S. Constitution.

After the Constitution was ratified by state conventions, the constitutional debate continued with the submission of a Bill of Rights. Alexander Hamilton argued against such a bill, asserting that the people had not surrendered their rights in ratifying the Constitution, so such protections were unnecessary. “Here, in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations.” Furthermore, Hamilton feared that protecting specific rights might imply that any unmentioned rights would not be protected.

Opposed to Hamilton’s argument, Thomas Jefferson, at the time serving as ambassador to France, supported such a bill. He wrote to James Madison, the author of the Constitution: “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”

Madison was, like Hamilton, concerned that enumerating such rights could “enlarge the powers delegated by the Constitution.” Consequently, he submitted the following draft of the Ninth Amendment to the Congress: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Madison further elaborated on these rights in his speech introducing the Bill of Rights: “It has been said, by way of objection to a Bill of Rights. …that in the Federal Government they are unnecessary, because the power enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a Bill of Rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation, but they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse.”

Today, after the Bush administration’s restrictions of constitutional rights through the Patriot Act, the John Warner Defense Act of 2007, the Military Commissions Act, and Presidential Decision Directive 51, with Republican and Democratic Congressional acquiescence, the rights debate has devolved to the States. Consequently, the Tenth Amendment has moved to center stage.

Ratified on 15 December 1791, the Tenth Amendment reserves all powers not granted to the national government to the States or the people. Based on an earlier provision of the Articles of Confederation where “each state retains its sovereignty,” it restates the Constitution’s principle of federalism, and in supporting States Rights, it makes explicit the idea that the federal government is limited to those powers granted in the Constitution.

Previously, States Rights was used to justify two indelible moral stains on the national character: slavery and segregation. However, today the issues include 2nd Amendment gun rights, unfunded mandates and demands from Washington, D.C. on how to spend stimulus money, national identification cards, and a presidential declaration of martial law, among others.

While most of the Founding Fathers believed the Constitution did not grant the national government any power that it did not expressly mention, most American political leaders since the Civil War have opined that the Constitution grants the national government the authority to do more or less anything that is not expressly prohibited by the first eight amendments. And with the contemporary submission of Congress to the Executive, the debate is now between the States and the Executive.

The present debate is constitutionally necessary and long overdue. As the debate unfolds, hopefully not into a full-blown constitutional crisis – the last one resulted in the Civil War – partisan politics and party loyalties will undoubtedly be the surface politics on the television screen and talk radio. Will the public realize that the Constitution is not what George W. Bush called “just a goddamned piece of paper”? Since the Republican and Democratic Congresses have been missing in action, it’s time for the States to reclaim Jefferson’s “half a loaf.”

Brad K. Berner formerly taught at Arizona State University and is currently living and teaching in Moscow, Russia.

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