Tenth Amendment musings:
Over at prospect.org, there is an essay, Rally 'Round the "True Constitution"
[There has emerged] a movement whose members are convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations disfavored by conservatives. (...)
Tentherism, in a nutshell, proclaims that New Deal-era reformers led an unlawful coup against the "True Constitution," exploiting Depression-born desperation to expand the federal government's powers beyond recognition. Under the tenther constitution, Barack Obama's health-care reform is forbidden, as is Medicare, Medicaid, and Social Security. The federal minimum wage is a crime against state sovereignty; the federal ban on workplace discrimination and whites-only lunch counters is an unlawful encroachment on local businesses.
Tenthers divine all this from the brief language of the 10th Amendment, which provides that "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." In layman's terms, this simply means that the Constitution contains an itemized list of federal powers -- such as the power to regulate interstate commerce or establish post offices or make war on foreign nations -- and anything not contained in that list is beyond Congress' authority.
I agree with that view, and have for many years. FDR should have pushed for an amendment to the constitution to expand the enumerated powers (or revoke the Tenth Amendment).
But I have no interest in hypocrites, which is what the Republicans are. If they really believe in the Tenth Amendment, then they should have been pushing to roll back Social Security, Interstate Highway System, Medicare, the EPA, and many programs advocated by Eisenhower, Nixon, Reagan, Bush Sr., and Bush Jr.
But they didn't. And by now, with time, the Supreme Court's acceptance of a broad reading of "interstate commerce", and convention, the Tenth Amendment is effectively inoperable. There was a time to stand up for it, but 75+ years after the fact is just posturing.
It seems to me that Chief Justice Roberts has sympathies in that direction. I was very worried about that aspect of the 5th wingnut justice for that reason. But I bring no support for that position today.
The Tenthers forget about the 14th Amendment, which said individuals have rights against States, and that the Federal government can pass laws to promote those rights.
And the Tenthers have little to point to before the Civil War in support of their legal theory. In fact, M'Colluch v. Maryland, which was a decision from Chief Justice Marshall upholding the constitutionality of the government owned national bank (around 1820), held that Congress' powers go beyond what Tenthers call "enumerated" powers.
Finally, in Federalist Paper #10, Madison said the regulation of various money, land, and financial and other interests "forms the principal task of modern legislation."
As with most things, what passes for "conservative" these days is simply ignorant and ahistorical. In other words, anything but conserving of anything except a snarling, violent stupidity.
What the "tenthers" are doing is taking the "fifth," twice. I'll drink to that.