Government & Politics

The Sovereign States

Destroying the Tenth Amendment is the root of a lot of trouble.

James Shott · Jun. 7, 2016

When the Founders of our young nation realized that the original governing document, the Articles of Confederation, was insufficient, they began the task of creating a better one. Ultimately, during the process of drafting and ratifying the United States Constitution strong sentiment existed for specific rights to be guaranteed to Americans, and the Bill of Rights was created, consisting of the first 10 amendments to the Constitution.

As time passed, the strength of most of those first 10 amendments has been weakened, and some — notably the Second — are under constant attack. As our once-limited national government has grown, the rights and freedoms guaranteed by the Constitution and the Bill of Rights have diminished.

The Bill of Rights guarantees such things as freedom of speech and religion, the keeping and bearing of arms, freedom from unreasonable searches and seizures, and other protections from the natural bent of government toward tyranny.

The several states, which represented the interests and will of their citizens, created the national government, and the Tenth Amendment emphasized that the states had protection from the acquisition of powers by the national government outside the limits set forth in the Constitution.

The Tenth Amendment reads, “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.”

To advocate the new Constitution and its structure known as “federalism,” James Madison, Alexander Hamilton and John Jay pseudonymously penned a series of essays known as The Federalist Papers. They stressed that under the Constitution’s governmental structure, the principle of popular sovereignty would continue, with constitutional protections against the national government trampling on the rights reserved for the states.

As James Madison explained in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

More than 230 years later, however, who can argue that the Tenth Amendment’s proscription against a power grab by the federal government has actually been respected?

Arguably, the Environmental Protection Agency is the greatest offender of Tenth Amendment protections, as it writes regulations and rules governing state actions with the force of law that have not been made into law by the Congress.

Or maybe it is the grossly misnamed Patient Protection and Affordable Care Act — ObamaCare — that is a law made by Congress, but shoves Uncle Sam over the edge of the big government cliff. Imagine Washington, Jefferson, Madison and the rest of the Founders agreeing that the national government was allowed someday to impose a health care system on the people of the several states, even if it worked as advertised.

The idea that the federal government has the authority to change the operations of hundreds or thousands of individual insurers and health care providers in 50 different states, each serving its own separate customer base, into a single system controlled by Washington is as anti-Constitution as it gets.

Other areas of Tenth Amendment abuse are same-sex marriage and abortion, both of which originally were state issues, until the Supreme Court found some way to finagle a national interest in them. Until the Roe v. Wade case of 1973, abortion had been a state issue, but the judicial despots on the High Court ruled that bans on abortion were unconstitutional because they discovered a “right to privacy” in the due process clause of the Fourteenth Amendment.

The Constitution also protected state sovereignty by the way Congress was organized. The House of Representatives, frequently referred to as “the people’s house,” consisted of representatives directly elected by the citizens of the congressional districts. Members of the Senate, on the other hand, were to be elected by the state legislatures, and therefore senators' loyalty was to the government of the state more than to its citizens.

This protection vanished, however, when the Seventeenth Amendment was ratified in 1913, and now the citizens of the states also elect senators, in addition to representatives. Members of the Senate no longer have any special reason to protect the interests of the sovereignty of the state they represent, and that shifts the governing balance between the states and the federal government toward the federal government.

The result often is that federal mandates, about which the states themselves have little recourse, not only can and do intrude on state sovereignty, but force states to pay for their implementation, as well.

Some people think these changes are just fine, such as those who have bought into the scare tactics of the climate change catastrophe gang, those who support abortion on demand and same-sex marriage, and those who generally like big government and have never stopped to think how miserable they may be in the future if this big-government mania isn’t stopped.

There is some good news: States are fighting back against federal overreach. Twenty-four states filed a lawsuit asking a federal court to strike down the EPA’s new source performance standards that effectively prohibit the construction of new coal-fired power plants. And 11 states are fighting the Obama administration’s transgender mandates.

If the courts do not support restoration of state sovereignty in these and other issues, the states will have no other choice but to refuse to follow intrusive federal measures. Given the money at play, however, that’s not likely to happen as often as it should.

Thomas Jefferson once explained the critical importance of this issue: “I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition.”

Unfortunately, his warning is now reality.

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