The Importance of the 10th Amendment

This column originally appeared at Big Jolly Politics:

This past weekend, ABC News held a debate between George Will and Paul Ryan on one side, and Barney Frank and Robert Reich on the other, during which they argued over whether our government was too large and intrusive. The focus of the discussion was on the role of the federal government in Washington. By omitting any discussion of state and local governments, they impliedly equated the role of all government with the role of the federal government. This debate, though intelligent and interesting, appeared to ignore the real debate that is raging outside of Washington over the size and role of government.

There are two major concerns that have been percolating among voters over the size and role of government, especially among those who embraced the Tea Party movement in 2009. These concerns can be distilled as follows:

• Too much responsibility and power have shifted to Washington from individuals, local governments and state governments, which is contrary to the proper allocation of responsibilities under the Constitution, and which has created tremendous economic inefficiencies for, and imposed artificial costs on, society; and
• All levels of government—local, state, and national—have been operated without a proper focus on their primary responsibilities, and have been managed inefficiently and too expensively, which has caused them to incur an unsustainable debt burden to fund their operations.

Citizens now see that the net impact of these developments has been

• a transfer of power and revenue to the federal government with a commensurate reduction of individual liberty and wealth, and
• the creation of an unsustainable tax and debt burden for future generations.

Our neighbors want politicians who will address these concerns now and take the bold actions to fix them—not just manage them better. It is in this context that so many people have responded positively to the conservative argument to re-invigorate and apply the principles contained in the 10^th Amendment to the U.S. Constitution, which has been championed by Rick Perry and others.

For a guy like me, who studied Constitutional Law in the early 1980s, this new embrace of the 10^th Amendment is remarkable. Back then, the overwhelming view of the 10^th Amendment (and the 9^th Amendment, too) was that it was merely “surplusage” or a “truism”, which provided no real limit to the responsibility of the post-New Deal federal government. To understand this view, let’s look at the actual language of two constitutional provisions—the 10^th Amendment and the “Necessary and Proper Clause” of Article I, Section 8:

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.
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The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

By the early 1980s, so many responsibilities and powers had been usurped by Congress, the President and the federal bureaucracy under Congress’ expanded application of the Necessary and Proper Clause (which was blessed by the Supreme Court), that the 10^th Amendment was viewed as simply recognizing that whatever power Congress had chosen not to usurp remained within the responsibility of the States or the people to exercise. Such an interpretation willfully ignored the concept of Federalism underlying the Constitution, and no longer provided any limitation on the power of the federal government.

In fact, judicial interpretations actually created a perversity of the Necessary and Proper power: as Congress broadened its authority, it expanded the scope of what was necessary and proper to exercise that authority; which, in turn, broadened the federal government’s authority into new areas of responsibility and, thus, broadened the scope of what was necessary and proper to exercise such new authority. It is this continuing and expanding spiral that has led the federal government to exercise the power to do things like regulate all forms of local economic development to protect the life of a local lizard or frog, as well as to underwrite our health and retirements.

Now it is true that the power of the federal government to legislate actually is a little broader than what is just necessary and proper to implement or enforce the responsibilities listed in Article I, Section 8. The specific list of responsibilities in that section are—

• to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; …
• to borrow Money on the credit of the United States;
• to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
• to establish an uniform Rule of Naturalization,
• [to establish] uniform Laws on the subject of Bankruptcies throughout the United States;
• to coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
• to provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
• to establish Post Offices and post Roads;
• to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
• to constitute Tribunals inferior to the supreme Court;
• to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
• to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• to raise and support Armies, …
• to provide and maintain a Navy;
• to make Rules for the Government and Regulation of the land and naval Forces;
• to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; [and]
• to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

In addition to Article I, Section 8, the original text of the Constitution vests other powers in the federal government that Congress can pass laws to effectuate the following:

• to establish rules for its own procedures;
• to make or alter laws regulating the election of Senators and Representatives;
• to suspend the Writ of Habeas Corpus in cases of rebellion or invasion;
• to publish a regular statement and account of receipts and expenditures of public funds;
• to approve the receipt of any award by a citizen from a foreign government;
• to allow States to impose certain taxes on the movement of goods in commerce;
• to allow for States to keep a defense establishment in a time of peace;
• to provide for the conduct of the Executive functions outlined in Article II;
• to establish the scope of jurisdiction of the federal courts beyond the enumerated issues in Article III;
• to establish the place for federal criminal trials;
• to establish the punishment for treason;
• to proscribe the manner by which States may provide full faith and credit to the laws of other States;
• to allow States to form Compacts;
• to admit new States to the Union;
• to regulate Territories and other property of the Union;
• to guarantee a Republican form of government to every State; and
• to protect the States from domestic violence or invasion.

Finally, amendments to the Constitution have given these additional responsibilities to Congress since 1789:

• to prohibit slavery;
• to protect individual rights to due process and equal protection of the laws, and to the privilege and immunities of citizenship;
• to allow Confederates to have full citizenship;
• to lay income taxes;
• to provide for and protect the right to vote for former slaves, women, and 18-20 year-olds, and against poll-taxes;
• to provide for rules as to who will serve as President if no one qualifies to serve as President or Vice-President, or if those who would qualify would have died, by the time a Presidential term should start; and
• to allow for the appointment of Electors from the District of Columbia to serve in the Electoral College to elect the President and Vice-President.

Now, I don’t know about you, but, though these lists appear to be long, the listed powers are really pretty narrow and specific, which is consistent with the concept of Federalism. The sphere of responsibility delegated to the federal government was to be very narrow and specific. The trust to exercise these specific responsibilities were, in turn, vested in a group of representatives, while, closer to home, the people would be more directly involved in the politics of their States and communities where most of the work of government would continue to be done.

Not only did this allocation of responsibility protect and preserve the rights and obligations we call “liberty,” it also made profound economic sense. The specific allocation of the listed responsibilities to the federal government controlled the transaction and administrative costs associated with the operation of government, by reserving most governmental responsibility to local and state governments that could exercise those responsibilities with less bureaucracy and cost. Those activities closest to home—like providing for schools, roads, public safety, public hospitals and clinics, and community support—would be paid for and regulated through local and state governments in coordination with private organizations in each community. One government, one agency, and one bureaucracy would be needed to address each responsibility at each level.

But in today’s world, local and state governments have lost focus and fiscal discipline as the federal government has usurped their responsibilities (and while the federal government fails to perform its proper responsibilities effectively or efficiently). We now have multiple agencies and bureaucracies at each level of government, which overlap in responsibility and power. They each absorb scarce tax dollars to provide these redundant activities; the resulting redundant policies and enforcements often conflict; and the redundant bureaucracies often end up doing nothing because the bureaucrats assume another agency is addressing the problem. Add on to these layers of inefficiency the cost and inefficiency of redundant programs within each level of government (and a trend toward increasing salaries and benefits of public employees to a level that exceeds the level of private sector benefits), and you have the seeds of our current fiscal mess at all levels of government.

Therefore, resurrecting the 10^th Amendment is the natural first step to not only restoring the proper balance of power to protect our liberty, it also is the natural first step toward restoring fiscal sanity to government. But restoring this balance does not set-up the false choice that the debaters on ABC’s program seemed to be discussing—the false choice of government v. no-government. Under a proper application of the 10^th Amendment there will be government, there will be schools, there will be roads, there will be public safety, there will be public hospitals and clinics, and there will be help to those in our communities who need it—but those activities will return where they belong: to responsibility of the State and local governments, and to the people to provide. This re-balanced approach to government should produce less and more cost-effective government in the long-term, but it will not eradicate government—as progressives fear and libertarians hope.

The challenge to conservatives will be to commit to engage in the new balance that will arise if we are successful in resurrecting the 10^th Amendment. This new balance only will work if we individually engage and participate in the operation and oversight of our school districts, our cities, and our state to fix the fiscal messes they face, to hold our local elected officials accountable to re-focus their efforts on those responsibilities they should be exercising, to require that those functions be performed cost-effectively, and to participate in the private organizations that will be needed to help provide certain services in our communities.

If we don’t accept these responsibilities, then our demand for a return to the principles of the 10^th Amendment will be empty, and the vacuum eventually will be re-filled by those who want to centralize all power, responsibility and revenue in Washington.