July 20, 1999
conservative legal scholar, who shall be nameless here, has
illustrated the trouble with conservatism today: its profound ignorance of
the Constitution it should be conserving.
Conservatives habitually object to new
federal programs on pragmatic and economic, rather than constitutional,
grounds. Program X wont work, it will cost
too much, it will even hurt the people it is intended to
help. Never do they simply object that since the federal
government has no power to enact Program X, Program X is
The Tenth Amendment makes the
principle clear: Whatever the Constitution doesnt authorize the
federal government to do, it forbids it to do. The powers
not delegated to the United States [i.e., the federal government] by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
Thats not a beautifully crafted
sentence, but its far from the unedifying truism and
platitude our conservative legal scholar says it is. It
prohibits the federal government from assuming powers the Constitution
doesnt positively that is, expressly or by necessary
implication grant. As James Wilson explained at the time,
Everything which is not given is reserved.
The same scholar makes the common
error of calling the Tenth a states rights provision.
Its chiefly a limitation on federal power. It doesnt say
which of the undelegated powers are reserved to the states
and which to the people. It merely says that any and all undelegated
powers are denied to the federal government.
The presumptive denial of powers to the
federal government is what made that government federal,
rather than centralized or, in the language of the Framers,
consolidated. Until Franklin Roosevelts time, nobody
regarded it as a platitude or truism.
Everybody understood exactly what it meant and how vital it was.
Even Lincoln consistently admitted that
the federal government had no power to touch slavery in the states where
it already existed. He carefully framed the Emancipation Proclamation as
a measure to put down rebellion in the Confederate states. It didnt
emancipate a single slave in the Union states; that step required the
Thirteenth Amendment, constitutionally delegating a new power to the
In 1919 the Constitution had to be
amended again to authorize the federal government to impose Prohibition.
The Tenth Amendment still had real force.
But during the New Deal, Franklin
Roosevelts Supreme Court, eager to expand federal power, declared
(in United States v. Darby, 1941) that the Tenth states but
a truism that all is retained which has not been surrendered. In
other words, the states and the people were entitled only to powers the
federal government hadnt claimed. The Court substituted the
telling word surrendered for the Constitutions word,
delegated. You delegate power to an inferior;
you surrender power to a superior. This ruling, by draining
the Tenth of any force, inverted the whole federal structure, reducing the
states to vassals of the federal government.
Where did the federal government claim
to get all the new powers the New Deal sought? Roosevelts Court
inflated the Commerce Clause which authorizes Congress to
regulate Commerce ... among the several States to
permit federal control of any activity that might conceivably have a
substantial effect on interstate commerce. Thus virtually
anything the federal government might choose to do became
constitutional, since virtually anything can be arbitrarily
defined as interstate commerce.
By that logic, Congress could have
abolished slavery or imposed Prohibition by a simple majority vote of both
houses, without any constitutional amendment. After all, slavery and
liquor certainly had a substantial effect on interstate
Today Congress doesnt even
bother arguing its authority to enact this or that law. It assumes a
limitless power to do as it pleases on gun control, tobacco,
a patients bill of rights, and such entitlements as
Social Security and Medicare. So we now live under the
consolidated government the Constitution was designed to
The pity is that even conservatives and
their legal scholars have forgotten the Constitution and allow their
enemies to rewrite the political ground rules. The unequivocal text
cant be changed by the courts or superseded by case law. Lincoln
understood it; todays conservatives dont.
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