December 11, 2016

The Tenth Amendment Run Amok?

In between “gotcha questions” and the Pawlenty-Bachman slurfest, an interesting discussion actually occurred during the Fox News presidential debate staged in Iowa on Thursday night (8/11/2011). It concerned Tim Pawlenty’s quite valid criticism of Mitt Romney’s role in expanding government healthcare in Massachusetts. During Romney’s term as governor, he signed into law a state healthcare plan that served as the basis for what is popularly known today as “Obamacare.”

Romney replied with a defense based upon the Tenth Amendment to the US Constitution, saying Massachusetts passed a law that was right for Massachusetts, but President Obama forced a “one size fits all solution” on the entire nation, usurping the powers reserved to the states or the people.

Calling him a “constitutional expert,” panelist Chris Wallace asked Congressman Ron Paul whether the states “have a constitutional right to make someone buy a good or a service just because they are a resident.” Paul replied,

“No, the way I would understand the Constitution, the federal government can’t go in and prohibit the states from doing bad things and I would consider this a very bad thing. But you don’t send in a federal police force because they’re doing it and throw them into court.”

Rick Santorum replied that this argument represented “the Tenth Amendment run amok” and paraphrased Abraham Lincoln saying “the states don’t have the right to do wrong.” He argued that the United States is a nation built upon moral laws, implying that he would support the federal government overriding the state government if an action of the state violated those moral laws.

So, what moral law does “Romneycare” violate and should the federal government step in and intervene?

For libertarians, many aspects of both Romneycare and Obamacare violate the moral law of non-aggression. It initiates force against individuals who have not aggressed against others by forcing them to buy a product. It forcibly steals their money to buy healthcare for other people. It forces them to pay for a government-run “exchange” which distorts the market and privileges government-connected health insurers.

Whether most conservatives see it from this perspective is not clear – they rarely make arguments based upon rights, rather than results. But Rick Santorum believes Romneycare is immoral, by whatever moral standard he is using.

So, let’s assume Romneycare does violate an underlying moral law that precedes government and violates the rights of the individuals in Massachusetts. As a libertarian, I certainly agree that it does. I also agree (and I don’t get to say this much) with both Rick Santorum and Abraham Lincoln that “the states don’t have the right to do wrong.” Violation of the rights to life, liberty, and property are wrong regardless of whether they are perpetrated by federal, state, or local governments.

But that’s not what Congressman Paul said. Paul did not assert the state government had any rights. He said the federal government does not have the power to override the states on this issue. This is a crucial distinction to make if one wishes to understand the Tenth Amendment and why violating it has been the chief cause of the national crisis we find ourselves in today.

The Declaration of Independence states that governments derive their just powers from the consent of the governed. It doesn’t talk about government rights because they do not exist. Governments don’t have rights. Only people have rights. Governments are invested with specific, limited powers by the people who establish them. Those powers originate in the people and are delegated to the government for the purpose of securing their rights, as the Declaration also states. If a power is not specifically delegated to the government, the government cannot exercise it. To do so is to exercise power without the consent of the governed.

For the men who declared independence from Great Britain, the consent of the governed was the only way to reconcile government power with liberty. The government was only allowed to exercise power the people agreed to delegate to it. The powers enumerated in the Constitution are those which have this consent, given through the representatives who drafted and ratified it.

Many libertarians today reject the idea that a majority vote can substitute for the consent of the individual. Therefore, they reject all government as the exercise of arbitrary power. Even those who do not hold this view must recognize that calling ratification of the Constitution by majority votes in the state legislatures “consent of the governed” still requires an extremely elastic definition of the word consent. But at least there is some argument to be made that the powers delegated in that document were agreed to by the people.

There is no argument to be made that powers not delegated in the Constitution have the consent of the governed. That is why there is an amendment process; so new powers can be delegated to the federal government if a majority of the states truly wish to do so.

The powers delegated to the federal government deal primarily with issues outside the states. Power is delegated to create armies and navies to defend the republic against invasion. Power is delegated to regulate interstate commerce, which was intended merely to prevent protectionism between the states. There is no power delegated there allowing the federal government to regulate anything within the states. As Thomas Jefferson said, “I believe the States can best govern our home concerns, and the General Government our foreign ones.”[1]

What does all of this have to do with Romneycare? It means Ron Paul was right. The government doesn’t have the power to “prevent the states from doing bad things.” Why not? Because the people of those states never consented to give the federal government that power. The federal government exercising powers not delegated to it, even to repeal a bad law, is not substantively different from Russia or China interfering in the legislative process of a state. Exercising power without the consent of the governed is tyranny, regardless of who perpetrates it.

There is always desire to allow the federal government to exercise this power on those rare occasions when it is actually overriding a bad state law, instead of writing bad laws of its own. As Kevin Gutzman documents in his book, The Politically Incorrect Guide to the Constitution, the states originally had a lot of internal laws that people today might not necessarily agree with. Some of the states had state religions. The Massachusetts Constitution originally required people to attend religious instruction. While libertarians would vehemently disagree with those laws, allowing the federal government to interfere is not the answer. Once that Pandora’s Box is opened, you are on the road to a $3.8 trillion a year federal government with a $14 trillion debt and $100 trillion in unfunded liabilities. Exercising non-delegated powers was the train it rode in on.

As I’ve said before, the Constitution itself was an enormous expansion of government power at the time. But even its delegation to the federal government of vast new powers  had limits. Today, no limits are recognized. If the federal government can ever be fixed, those limits have to be restored. Individuals, local governments, and state governments all do bad things. But a federal government with unlimited power is not the answer. We’ve tried that for the past one hundred years. Not only is it time to start enforcing the Constitution’s limits on federal government power; it’s time to start imposing new ones.


[1] Jefferson, Thomas Letter to Justice William Johnson June 12, 1823 from Jefferson Writings Literary Classics of the United States  edited by Merrill D. Peterson pg. 1476

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Comments

  1. Congratulations on a very nice blog. A quick question on this post; does a state have the right to reinstate slavery?

    • Tom Mullen says:

      One of the points I tried to make was that neither the state nor the federal government have “rights.” They have powers delegated to them by the people. If the state exercises a power not delegated by the people of that state, then it is committing the same crime that the federal government commits when it overrides the states in an area where it has not been delegated power. There is an amendment to the US Constitution prohibiting slavery in the states. Therefore, the states do not have the power to pass a law legalizing slavery. On the other hand, there is no power delegated to the federal government to stop the states from passing Romneycare. Therefore, as bad as that law is (or would be in other states), the federal government is not empowered by the people to stop it. That doesn’t make it a just law. It just means the federal government is not authorized to overturn it, just as the US government is not authorized to overturn bad laws in other countries.

  2. Tony Arjona says:

    Kudos to you sir! I wonder why even the STUPID people in this nation who have had plenty evidence that a criminal and immoral class of villians, yet they have not rallied with pitchfork, tar and feathers to route these batards for our Republic? They lie and steal and destroy the lives of honest hardworking Americans and do not even apologize! It’s about time We The People assert our rights and incorporate non-parliamentarian means to do it!!! Sic Semper TYRANNIS!

  3. William Schooler says:

    This idea of the constitution is a basis error in the sense it is not based on a Republic and what I mean is that the state has no authority to deliver any such service to its people but to do the act to sustain a Republic which in it has Liberty. Liberty telling us loud and clear that individuals are to be free of any such Government involvement.

    The constitutional abuses are simply no foundation exist flat out either by the people or by those in Government which Government is to be made up of the people and not banking institutions of corporate interests.
    These institutions actually do the acts of opposing a Republic because they work to control products as well finances both of these directly oppose Liberty by all measures and this definition.

    To have consent one must be clear on the intent of the individual, group or entity so that a clear determination is possible or no clear consent can be visible. Manipulating an idea to look like something else is coercion and good consent is subject to question at this time.

    Our best choice today would be to reject our Government outright because of Betrayal. Show me a Republic and I will ask where because no Republic exist or Liberty and limited Government would be visible, life would be unrestricted for sharing ideas and calling the bluff of those generating ideas that directly oppose Liberty.

    The Constitution is the document for Liberty if adhered to and today we can see visually this is not the case. When will we stare into the eyes of these results and take the truth as it has revealed itself. How much more evidence is needed to convince you the truth is right in front of you?

  4. Republic Reminder says:

    Thanks Tom, This is a really great and thorough run down of the idea of limitation of powers and how it operates between the federal and state governments. I would like to see this go to conservative websites and blogs if you have any. I think the most important thing we can do to help Americans learn how to vote is get the word out about what the Constitution is and how valuable it would be to get the foundations restored. It is so frustrating that we have been talking around the Constitution but never taught what it meant or what its true value was.

    I got that Heritage Foundation copy of the Constitution years ago. I tried to read through it. It bored me to tears. I didn’t understand it. After reading Tom Woods and watching an 8 hour video on the Constitution, I couldn’t get enough information. It just amazes me that I have been reading “around” the Constitution for years but never had a clear delineation of what it meant. I think this presentation is very clear and very concise. If it could get published in a newspaper (or something similar) so people other than internet users could read it. I think that would be a big help. People need to hear the whole picture. It hurts to see so much ignorance continuing when there is so much information available. People just don’t see it.

  5. Michael Osterbuhr says:

    Most non-lawyers, or so I’m told, will attempt to read a great deal into “lower paragraphs” of a document, without first reverting back to the top part of the document. IMHO and I’m not a lawyer, is that the preamble to our constitution answers a lot of the anti-federalist complaints of Tom and others here.

    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure
    domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the
    Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the
    United States of America.”

    What part of “form(ing) a more perfect Union, establish(ing) Justice, insur(ing) domestic Tranquility, provid(ing)e for the common defence, promot(ing)e the general Welfare is not addressed by the amendments to the constitution? If the states are not working toward achieving the Union laid out in the preamble, why wouldn’t the federal government have the power to correct them?

    • “”””What part of “form(ing) a more perfect Union, establish(ing) Justice, insur(ing) domestic Tranquility, provid(ing)e for the common defence, promot(ing)e the general Welfare is not addressed by the amendments to the constitution? If the states are not working toward achieving the Union laid out in the preamble, why wouldn’t the federal government have the power to correct them?””””

      Well whos going to correct the federal government for not acheiving the Union laid out in the preamble?

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