The Reactionary Utopian
                     February 2, 2006

by Joe Sobran

     You could easily get the impression that the U.S. 
Supreme Court has banned public displays of the Tenth 
Amendment. Actually, this hasn't happened, at least not 
yet. Anyway, adults can still read it in the privacy of 
their own homes, if they can lay hands on a copy. And in 
the age of the Internet, it would be hard to suppress 

     But a conspiracy of silence, if observed by enough 
people, can be as effective as an outright ban. And since 
at least the days of Franklin D. Roosevelt, that lump of 
foul deformity, most employees of the Federal Government 
have tacitly agreed to avoid all mention of the Tenth, 
which encapsulates the meaning of the U.S. Constitution.

     The silence was broken in 1996 by Bob Dole, who, in 
a desperate attempt to salvage his losing presidential 
campaign, said he always carried a copy of the Tenth in 
his wallet. Not that anyone would have been led to 
suspect this from his long voting record.

     The Tenth is often referred to as "the states' 
rights amendment," but that's not quite accurate. It 
speaks of powers, not rights. It says that the powers 
that haven't been "delegated" to the Federal Government 
in the Constitution are reserved to the individual states 
and the people.

     This was an attempt to make the Constitution 
foolproof. Nice try! At the time, it may have seemed that 
nobody, not even a politician or a lawyer, could miss the 
point: The Federal Government could exercise only those 
powers listed in the Constitution. Whatever wasn't 
authorized was forbidden. The basic list was found in 
Article I, Section 8. It was pretty specific: coining 
(not printing) money, punishing counterfeiters, declaring 
war, and so forth.

     In principle, simple. Unfortunately, however, it 
runs up against the politician's eternal credo: "In 
principle, I'm a man of principle. But in practice, I'm a 
practical man."

     So the politicians, all practical men, began their 
endless but fruitful search for powers other than those 
listed -- "implied" powers that weren't spelled out in 
the text, but were "necessary and proper" for the 
execution of the explicitly enumerated powers. The very 
practical Alexander Hamilton argued that a national bank 
was necessary and proper in this sense; but Thomas 
Jefferson hotly denied it, and soon the two men were 
wrangling over what "necessary and proper" meant, 
reaching an impasse over the word "and."

     Among the most creative interpreters of the 
Constitution was Abraham Lincoln, who found he needed all 
the implied powers he could get his hands on in order to 
prevent peaceful secession by the exercise of violence. 
As Professor Harry V. Jaffa approvingly puts it, Lincoln 
soon "discovered" a huge "reservoir of constitutional 
power" that suited his purpose. Nobody had discovered 
this "reservoir" before. Later such reservoirs would also 
be called "penumbras, formed by emanations."

     But the richest cache of penumbras and emanations 
was later found in Congress's power "to regulate commerce 
with foreign nations, and among the several states, and 
with the Indian tribes." Especially since the New Deal, 
the part about "the several states" has gotten quite a 
workout. It is now interpreted to mean that the Federal 
Government can "regulate" just about everything we do, 
from sea to shining sea. This makes the rest of the 
Constitution pretty much superfluous.

     Where does this leave the Tenth Amendment? Oh, 
that. The Supreme Court has held that it's just 
"declaratory," a mere "truism," a trivially true 
acknowledgment that the states retain any powers they 
haven't actually "surrendered" (the Court carefully 
avoided the fraught word "delegated").

     To call all this "legislating from the bench" is an 
almost imbecilic understatement. It inverts the plain 
meaning of the Constitution, making it mean the opposite 
of what it actually says. It's nothing less than 
revolution by means of "interpretation."

     If the power to "regulate commerce ... among the 
several states" had been as broad as the courts now say, 
Congress could have abolished slavery, imposed (and 
repealed) Prohibition, and given women the vote by mere 
statute, without all the bother of amending the 
Constitution twice.

     Notice that the Tenth Amendment is one of the few 
passages in the Constitution in which the Federal 
judiciary hasn't discovered reservoirs of penumbras and 
emanations. I wonder why.


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