A Note on the Tenth Amendment

In a recent discussion about the ACA, I was asked to read (and respond to) several pieces on the tenth amendment.  I must, it should be noted, did not realize quite the importance my partner in discussion attached to these links, and – in honesty – considered the arguments set forth in them to have been already adequately dispatched previously by another.  In any case I was reluctant to respond in detail when the subjects under consideration were already multiplying extensively: tempers having (I hope) cooled somewhat, I will present my rebuttal independent of that discussion.

I believe the best of the pieces presented was Dr. Schwinn’s essay “The ACA and the Tenth Amendment”, posted on the Supreme Court blog.  In style, clarity, and – by virtue of its sponsors – authority, it stands as the opinion most significant among the various similar sources cited.  I say it is the best – but I believe Dr. Schwinn’s argument is flawed.

0.  The Tenth Amendment, Text

“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.”

I. A Personal Statement on the Authority of the Supreme Court

The judgment of the Supreme Court is, in any particular case, the final word in law; and as precedent, takes a place somewhere between an opinion to be given the most careful attention and a simple final decision of the question and similar matters.

Additionally, by fairly long tradition, the Supreme Court has the power to consider the validity of laws under the Constitution of the United States.  Although never given this power under the Constitution, the Court must logically have the power to judge based on the Constitution if it is to uphold the most fundamental laws of the land – and under any interpretation, the Court has that actual power, regardless of authority.

What this does not prove, however, is that the Court’s opinion represents the final say on all law and constitutionality in the United States.  It is sufficient here to point out that the Court has periodically reversed itself.  That is to say, it is possible to disagree with the judgment of the Supreme Court – and let me mention here that its decisions are rarely unanimous – and not be wrong; and in point of fact, parties across the political spectrum regularly object to Supreme Court decisions and hope to see them overturned either by further law or further judgments.

In sum: Supreme Court decisions are near-binding precedent in law; and should be carefully considered but are not binding on opinion.

II. Dr. Schwinn’s Opinion

In Dr. Schwinn’s estimation, the tenth amendment serves essentially no purpose:

“…The Court acknowledges that the Tenth Amendment serves two principal purposes.  First, it prohibits the federal government … from using [the states or their officials] as mere instrumentalities of the federal regulatory agenda.  Next, it … protects against federal legislation that goes too far into areas of traditional state concern…  But these are loose constraints, easily bypassed by the federal government … Moreover, any enclave of traditional state concern is necessarily ill-defined and eroding with increasing national integration… [The Tenth Amendment] states but a truism.”

III. Contra Dr. Schwinn

In this opinion – and the piece in general – Dr. Schwinn confuses the status quo – the “what what is”, a phrase stuck in my mind as something a professor of mine once called it – with what (with apologies to Latin scholars everywhere) I am going to call the “status sit“: the way things should be.  (Feel free to improve the phrasing.)  To someone axiomatically inclined – as I am – to see the Constitution as not only limiting but delineating the powers of the Federal government, the conclusion appears to be, not that the Court’s decisions render the legislature’s actions acceptable, but rather that the Court is derelict in its duty to the Constitution, the law of the land.  The cavalier reference to “increasing national integration” as though such a thing were both inevitable and desirable (though at least acknowledging a previous difference) is not a thing calculated to cheer the soul and satisfy the spirit of the – dare I say – determined Jeffersonian.

IV. Argument from the Texts (Amendment, Constitution, and Schwinn)

But supposing that for the sake of argument we take Dr. Schwinn’s statement as an acceptably accurate one; suppose we abide by his judgment that the Tenth Amendment is in fact merely a truism.  This either proves too little to prove his case, or too much.

If he means merely that the Tenth Amendment adds nothing to the Constitution – why, then, we may disregard it, and study the Constitution without it.  And then we come to a further problem: for the interpretation of the Constitution in all points is not a settled subject.  Dr. Schwinn would have us drift with the times, and with Court interpretations; others like myself would have us all believe that it meant something specific.  Dr. Schwinn acknowledges the controversy over, for instance, the Commerce clause:

“Consider the clause at issue in the cases challenging the ACA, the Commerce Clause: ‘The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’  Terms and phrases like ‘to regulate,’ ‘commerce,’ and ‘among the several states’ are inherently indeterminate and susceptible of a wide range of interpretations, especially as society, technology, and trade change and evolve.  (If there is any doubt that these terms and phrases are ambiguous, look at two hundred years of contentious litigation over their meanings.)”

But he merely waves it away.  The Court has (both generally and especially recently) tended to take an expansionistic view of the Federal government’s powers; therefore it must be the correct meaning.

He acknowledges that previous sittings of the Court have taken a different view:

“To be sure, the Tenth Amendment had its heydays.  During the first, in the early nineteenth century, the Court interpreted the Tenth Amendment to bar federal legislation related to manufacturing and production ‘areas traditionally within the states’ police powers[‘].”

But he again dismisses this earlier view (incidentally supporting my earlier contention that the “opinion of the Supreme Court” cannot be considered anything like a final authority on Constitutional meaning): “…This high point of the Tenth Amendment ended decisively in 1941, when the Court in United States v. Darby upheld the Fair Labor Standards Act of 1938.”

Thus he proves too much: the Tenth Amendment is meaningless; so we must defer to Constitutional interpretation – and yet he has not proved the Progressive interpretation correct, merely assumed such a thing.  By discarding the Tenth Amendment, he has “proved” so much that he has merely moved down to another turtle.

Alternatively, if we take “truism” as a factual description, rather than a dismissal (as evidently was not intended by either the 1941 Court or Dr. Schwinn, but bear with me here), such a description fails to answer the problem at all: it makes the Tenth Amendment self-evidently true – and calls into question the entire march of the Federal government toward sovereign interior power.  Let me quote an excerpt from Madison on the relationship of the States and the Federal government: in Federalist 45, he begins his argument for the proposed constitution – after several digressions on other governments – by urging that, “The State governments will have the advantage of the Federal government…”  I will of course admit that this view was not shared, either as an opinion or a goal, by all of the Federalists (or probably all of the anti-Federalists).  Hamilton’s goals, for instance, were indubitably in favor of a more concentrated power (though one wonders whether, having participated in a revolution brought on by, among other things, the forced buying of what were essentially publishing licenses, even he would be quite accepting of the modern state of affairs).  At any rate, Madison sums his ideal up later as follows:

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

“The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

In conclusion, I will merely note this: that the period of marked Federal ascendancy is one that was marked in its beginning by a war started in part (how small or large, I leave to your opinion, but I demand acknowledgement of some motivation) to secure the rights (however heinous – a topic for another time) of the individual States; that this expansion was slowed, in some measure, by the peace (in some measure) of the Reconstruction; and that in the crisis eras of World War, Depression, World War, Cold War, and Gulf-War-on-Terror, the role of, funding of, spending by, and perceived dependence on the Federal government has proceeded almost unabated – the “almost” being, mainly, the presidency and a half of one Calvin Coolidge.  Madison seems to have been proved distressingly right in his governmental calculations – and depressingly wrong in his historical ones.  (Though I leave aside his calculations on defense – to over-generalize, Americans have been unwilling to fund a military, and unwilling to leave well enough alone when they do happen to have one.  But that is a topic for another time – and not an area of my expertise.)