Rediscovering the 10th Amendment

In response to Obama's new New Deal, some 20 states are taking steps to invoke their rights under the 10th Amendment. Unfortunately, they're a day late and a dollar short.

The New Deal, launched almost 80 years ago, represented a giant leap toward collectivism. But only in the last few weeks, as a result of President Barack Obama's New Deal Reloaded, have some 20 states rediscovered the Constitution and the 10th Amendment.

Article I, Section 8 of the United States Constitution sets forth the limited duties and obligations of the federal government.

The Founding Fathers designed a federal government that focuses primarily on national security, the rules of naturalization, and a handful of other matters. And the Ninth and 10th amendments to the Constitution leave all other rights and powers to the people and to the states, respectively.

Texas Gov. Rick Perry, standing with members of his state Legislature, said: “The 10th Amendment was enacted by folks who remembered what it was like to have a very oppressive government — to be under the thumb of tyrants in an all-powerful government. Unfortunately, the protections it guarantees have melted away over the course of the years.”

During the early days of President Franklin Delano Roosevelt’s New Deal, the Supreme Court actually ruled that the Constitution meant what it said and said what it meant.

The court, for example, unanimously struck down the National Industrial Recovery Act as the result of a lawsuit by a chicken slaughterhouse, which resented federal control of its business because it operated exclusively within New York state.

So the Supreme Court pointed to Article I, Section 8, which reads, “Congress shall have Power ... (t)o regulate Commerce ... among the several States,” and said the Constitution limited Congress to legislation involving interstate commerce, not intrastate commerce.

The court was also concerned about the delegated, enumerated balance of power among the three branches of government — legislative, executive and judicial — especially the president’s use of legislative power, because FDR issued the executive order authorizing the code imposed on intrastate commerce.

Chief Justice Charles Evans Hughes wrote: “The President, in approving a code, may impose his own conditions, adding to or taking from what is proposed. ... (T)he discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered.”

Gov. Perry likened the intrusion of the federal government to boiling a frog: Heat the water slowly and gradually so the frog doesn’t react until it’s too late and it perishes.

Thus, Perry opposes constitutional-law-professor-turned-President Obama’s massive federal intrusion into the states via the “bailout” plans.

But the resistance represents too little, too late.

In describing the constant blatant assault on the Constitution, one hardly knows where to start. The federal government runs Social Security, a 50-state Ponzi scheme that makes Bernie Madoff look like an underachiever.

What about Medicaid? It is a federal/state program of health care for the poor. What about the Department of Education? It unconstitutionally involves the federal government in state-run education and comes with rules and mandates attached to the money.

Gov. Perry, mind you, intends to accept some federal bailout money because, as he puts it, Texans sent Washington the money in the first place.

He refuses, however, to accept federal money, such as unemployment compensation dollars, because of the strings attached.

But the very unconstitutionality of the federal government engaging in activities beyond those specified under Article I, Section 8, and sticking its nose — conditions or no — into the lives of the states doesn’t seem to bother him.

In other words, it’s OK for the federal government to play nanny and violate the Constitution — provided it does so without strings.

Ever since the ratification of the Constitution, federal lawmakers have attempted to circumvent it. President Franklin Pierce vetoed an 1854 bill to help the mentally ill, saying, “I cannot find any authority in the Constitution for public charity” and that such spending “would be contrary to the letter and the spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded.”

And President Grover Cleveland, when vetoing an 1887 appropriation to help drought-stricken counties in Texas, said: “I feel obliged to withhold my approval of the plan to indulge in benevolent and charitable sentiment through the appropriation of public funds. ... I find no warrant for such an appropriation in the Constitution.”

Today large numbers of Americans, to the extent that they even know about Article I, Section 8, couldn’t care less about it.

FDR personified this view at the swearing-in ceremony for his second term. He later said that when it came to the words “support the Constitution of the United States,” he thought, “Yes, but it’s the Constitution as I understand it, flexible enough to meet any new problem of democracy — not the kind of Constitution your court has raised up as a barrier to progress and democracy.”

What 10th Amendment?

Larry Elder is a syndicated radio talk-show host and the author of Showdown: Confronting Bias, Lies, and the Special Interests That Divide America. He is also host of daytime TV's "The Larry Elder Show," and enthusiastically recommends Atlas Shrugged to visitors of his web site.

10 comments from readers  

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True, but is it ever "too late" to defend the basic constitutional principles. I hope not.

Barney Frank declared the Tenth Amendment "dead letter law" decades ago and there were no objections from Republicans, many of whom *want* expansive federal government police and war powers.

Nevertheless, I'll mark down Presidents Pierce and Cleveland as the *last* Presidents who actually honored their oath of office.
Good article. If the Federal government wants to change the consitution, then they should propose new amendments! Honesty, not subversiveness.
Excellently done. A nice, principled defense of our Constitution.
My only concern about Mr. Elder's comments is that I am not willing to accept Governor Perry's and others efforts as "too little, too late". The battle may be tough but we need to find the way to reassert Article 1 section 8 of the U.S. Constitution as well as reclaim the 10th Amendment. The hour is late but better LATE than NEVER! To quote Patrick Henry, "Is life so dear or peace so sweet as to be purchased by the price of chains and slavery? Forbid it Almighty God!"
I, for one, am not willing to allow my effort to be too littlle, and I'm praying it is not too late.
The total failure of the US judicial system to enforce the explicit language and intent of the 10th Amendment is at the crux of the problem of the oversized, intrusive, bloated, federal government. Apparently it became inconvenient after "The New Deal" to teach anything about the Constitution of the United States of America anywhere within the education system. There are simply too many freeloaders on the gravy train who want to believe in government ponzi schemes; individual liberty be damned.
This sentence alone makes the article worth reading: The federal government runs Social Security, a 50-state Ponzi scheme that makes Bernie Madoff look like an underachiever.

Terrific assessment of the spreading power of the federal government, against all rules of common sense and law.
Mr. Elder, as a Canadian I have only peripheral knowledge of your Wonderful Constitution. William Gladstone of England noted, if you want a new effective constitution, take the American one, it is the best document for Liberty ever hammered out by man. That was then, but this is now! Franklin knew what was coming, He warned it is only as good as the people honoring it. The Constitution paralyzed FDR until he put his own gangster judges in. America's worst enemies are Americans in power. Same as here in Canada. But we don't have a viable legitimate constitution, just a sham imposed by P.E. Trudeau to defeat the ideas of Ayn Rand which had taken Canada by storm back in the 70's. Don't tell mother I'm a politician. She thinks I play piano in a bordello. Frank Toplin
At what point is the moral authority obtained to revolt against this encroachment? Or, at what point is it the moral obligation to revolt? Is there not a point at which, regardless of past infractions, that a nail must be driven in drive in and from that point forward act as the founders intended? Why be stuck in the "progress" that has gone before? Much of the present legislation on the books should be and can be repealed.

Why do so many say it can't be done? Why do so many believe that repealing legislation is just too difficult? Where are the men and women who are not afraid to restore our government to what it ought to be; what it can be?

Where are the sons and daughters of the greatest ideal yet written and purchased with blood?

There should be and can be a return to the ideal. To return to the ideal is the only cost worth bearing. Think it. Live it.

The ideal does exist.
So, then, what is needed is not a "return", but a refreshing of the awareness, in the minds of those morally sensitive to today's move toward dictatorship, of the original concept on which that Constitution was founded: individual rights. But, this time, it must be taught with the moral foundation it so dearly needed and completely lacked at the founding. That moral root is hinted at in a famous phrase (when paraphrased) of the founding documents. I refer to the purpose of government being solely to protect "your right to your life, your right to your liberty and your right to your pursuit of your happiness."

This focus on the value of the life of each and every individual person does not flow from the morality that holds that man's life must, instead, be given in service to "others", nor is it similar in spirit or practice, to the demands of the politics of collectivism, which views your life as a mere piece of the total social organism, to be sacrificed as needed by "the public interest".

No, the principle of public policy that there are possessions of you, the individual, that may not even be voted on, because they are you and yours, flows from a morality of rational self-interest. Individual rights requires this morality of individualism and can be found in the writings of only one voice in world culture, past or present. I refer to Ayn Rand, mankind's greatest moral teacher and author of Atlas Shrugged, the most inspiring novel ever written...if you love your life on Earth.

Read, learn, enjoy!
It should be noted that Montana isn't going down without a fight against the Federal government's attempt to usurp powers from the States. Just last month, the state legislature here passed a new law declaring that the federal government has no jurisdiction over the intrastate commerce in arms, ammunition and accessories related to arms manufactured and purchased in Montana. Montana's "House Bill No. 246 is being referred to as "Montana Firearms Freedom Act".

Text of the New Law:
(the text which follows can be found online)

It will be interesting to see what Obama and his cohorts do with this audacious refusal to bow to the Federal will. I suspect that they will have to ignore it for now, for if they make an issue of it, they are more apt to garner support for the bill from other states ... which would be a pleasure for all those looking to curb the powers of the Federal government!
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