Constitutional Government and the Tenth Amendment

In their book Who Killed the Constitution, Thomas E. Woods and Kevin C.R. Gutzman argue that the demise of constitutionalism—the principle of limited government—is by no means a recent development. It can be traced back several decades, “close to a century.” It is not the work of just one political party or another, but an assault from multiple sources:

The crisis we face today is the culmination of decades of offenses against the Constitution by Democrats and Republicans, justices, presidents, and congresses alike, all of whom have essentially rejected the idea that the Constitution possesses a fixed meaning limiting the power of the U.S. government.

That idea was not a minor aspect of the Constitution; it was the very purpose of the Constitution.

The principle of constitutional government is rendered meaningless if the Constitution is treated as a document whose meaning is endlessly malleable or, even worse, impossible to ascertain. At different times, different parties have deemed it expedient to construe the constitution in whichever way will rubber stamp their political policies. This lack of consensus on the interpretation of constitutional principles is strikingly clear in relation to the Tenth Amendment, which provides that,

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.

You might reasonably think the meaning of that provision is self-evident. It seems obviously to reflect the principle that states are sovereign and independent. There would be no point for the thirteen American colonies to have declared independence from Britain only to swear fealty to a new, albeit homegrown, imperial overlord. Gary Galles observes,

Everyone knows about the Federalists who pushed the Constitution. But far less known are the Antifederalists who warned with good reason against the creation of a new centralized government, and just after so much blood had been spilled getting rid of one.

Writing in 1863, Chief Justice Taney observed that the Tenth amendment protects the sovereignty of states—a point that was clearly understood at the time. As Woods and Gutzman put it, the states “remained the final authorities in the areas the Constitution did not delegate to the federal government.” That accords with the ordinary and common-sense interpretation of the words of the Tenth amendment.

But to the New York Times, the purpose of the Tenth Amendment is not at all clear—a columnist observed in 1983 that “the meaning of those phrases is not self-evident. Indeed, the Tenth Amendment was long thought to mean little.” Those who sought to erase the notion of state sovereignty treated this amendment as a mere footnote stating that in some cases there may be a distinction between state and federal powers. Chief Justice Harlan Fiske Stone is cited with approval for his comment that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.”

Murray Rothbard highlighted the problem with this interpretation. It is used as a justification to consolidate and centralize power in the federal government. Courts have interpreted the Tenth Amendment not as a means of limiting federal power, by recognizing such power as vested in the states, but instead as implicitly delegating power to the federal government “through judges’ elastic interpretation of the Constitution”—the precise opposite of what was intended. Rothbard explains,

This loophole for vague “delegated” power allowed the national courts to use such open-ended claims as general welfare, commerce, national supremacy, and necessary and proper to argue for almost any delegation of power that is not specifically prohibited to the federal government—in short, to return the Constitution basically to what it was before the Tenth Amendment was passed. The Tenth Amendment has been intensely reduced, by conventional judiciary construction, to a meaningless tautology.

Interpreted in that way, the Constitution no longer fulfils its intended purpose. Instead of serving as a limit on centralized government power, it functions as an instrument for further consolidation and growth of federal power.

What then is to be done? If people cannot even agree on what the Constitution says, should it be abandoned altogether?

In his essay “Let’s Give Up on the (Unwritten) Constitution,” Brion McClanahan argues that it would be dangerous to simply give up on the Constitution and write it off as a dead letter. He argues that, instead, “What the American political system needs is a good dose of federalism and decentralization and a return to the Constitution as ratified through the Tenth Amendment.” He further argues, in “The Jeffersonian Tradition,” that limited government as envisaged by the Constitution is only possible when the locus of power resides primarily at state level: 

The State is the most responsive level of government, the most democratic, the purest form of a republic, and the political entity most able to ensure republican principles, which Jefferson listed as “simplicity, economy, religious and civil freedom.” All the Founders would agree.