One of the greatest strengths of our system of government is our Bill of Rights. The first 10 Amendments limit the power of the government. Though it is not perfect, this system has kept government in check, in several key spheres. The 10th Amendment is succinct, yet powerful. It 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.”
Sadly, the 10th Amendment has been degraded in the past 50 years by power-hungry statists. The American people are now over-taxed and over-regulated. The regulations penned by Congress are bad enough, but those emanating from international treaties, presidential executive orders, and decrees from unelected bureaucrats have become odious. If our founding fathers were alive to see just how strong the Federal government has become, and how it encroaches into so many aspects of our lives, they would be horrified. Even the most strident Federalist of the 1780s would be shocked to see just how arbitrary and despotic our national government has become. The advent of the “alphabet soup” agencies since the 1930s has radically centralized the government’s power and subverted the rights of the states, and the rights of the citizenry.
Government by By Fiat
The enormous power of Federal agencies has grown, over the years. They now regularly issue decrees (using “rulings”, “clarifications”, and “interpretations”) that go far beyond original congressional intent. This is nothing short of government by fiat — a soft form of tyranny. These are unelected bureaucrats issuing directives.
Concurrently, the White House has also usurped the authority of congress, by issuing dozens of Executive Orders. The entire process and existence of executive orders violate the Constitution.
Sadly, congress has shirked its responsibility and allowed this to happen. I suppose that they must consider themselves too busy to bother with nitty-gritty details of how the agencies that they created actually operate.
FDR’s Alphabet Soup and Socialist Judges
The intent of our founding fathers was to keep the federal government small and focused on external affairs –such as treaties and tariffs — leaving most of the power and decision-making up to state governments. The shift in the other direction began during the Civil War and accelerated during the three terms of the FDR administration. Today, following the accumulation of mountains of case law affirming Federal power, the 10th Amendment has lost much of its intended effect. Regaining state sovereignty, rolling back Federal mandates and dictates, and overturning odious court decisions has been a battle of baby steps, reversing the powerful strides the Big Government crowd has taken since 1930.
The defanging of the 10th Amendment began, as FDR appointed a bevy of socialist-statists to the Supreme court. As even the leftist Wikipedia admits:
“The Tenth Amendment, which makes explicit the idea that the powers of the federal government are limited to those powers granted in the Constitution, has been declared to be a truism by the Supreme Court. In United States v. Sprague (1932) the Supreme Court asserted that the amendment “added nothing to the [Constitution] as originally ratified.”
States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby Lumber Co., reads as follows:
“The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”
I am pleased to report that the anti-10th Amendment bias by the federal courts may be coming to an end. For example, there is the Loper Bright Enterprises v. Raimondo case, now before the Supreme Court. Oral arguments were presented in January. A decision is expected this summer. It will most likely end Chevron Deference.
Remedy and Recourse
There is an old saying in the legal world: “There is a remedy and recourse for every body of law.” This ties back to the Latin phrase: Ubi Jus, Ibi Remedium. “(Where there is a right, there is a remedy.”)
A legal remedy is defined as: “The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual.”
A legal recourse is defined as “an action that can be taken by an individual (or a corporation) to attempt to remedy a legal problem.”
Citizens who are harmed by bad law, or the misapplication of law, or tyrannical actions made under color of law can seek a remedy and recourse through the courts. Justice in most cases is usually both slow and expensive to achieve. Most often, this is through a series of appeals, as a case slowly makes its way up through the appellate courts. The U.S. Supreme Court only very rarely jumps in, early in the process. This is generally reserved for cases where time is of the essence, such as resolving disputed elections, to avoid a Constitutional crisis that might trigger a civil war or even a coup d’etat. One example of this was the Bush v. Gore case, following the 2000 Presidential election, to resolve the much-publicized Florida ballot count debacle.
It is encouraging to see that the Supreme Court has become more conservative, in recent years. But it is frustrating to see how infrequently the Supreme Court grants writs of certiorari. Even cases that would outwardly appear to be Constitutional “slam dunks” get ignored. The Supreme Court is notorious for dragging its feet on Second, Fourth, and Tenth Amendment cases. For example, the Supreme Court heard hardly any cases that directly involved the 2nd Amendment from 1939 to 2008. It was not until after the D.C. v. Heller decision in 2008 that the court gave any serious scrutiny to violations of our right to keep and bear arms.
Most of the 10th Amendment case law that has built up since the Civil War has been regarding commerce. In part because of the current Texas border crisis, there may be some Supreme Court interest in Tenth Amendment cases in the next few years.
As I’ve described in SurvivalBlog in the past, starting with the Erie Railroad v. Tompkins decision, the definitions of “interstate commerce” and “affecting interstate commerce” have been expanded to ridiculous dimensions.
There hasn’t yet been a definitive case that includes the interplay between the 2nd Amendment and the 10th Amendment. But given the recent Bruen decision, I predict that the Supreme Court will eventually adopt a more expansive view of not just the 2nd Amendment, but also the 10th Amendment, reestablishing State sovereignty and States’ rights. If the Bruen “history, text, and tradition” test were applied to other bodies of law, then 90% of Federal agencies would be eliminated. There might be some state-level agencies that are deemed justified, but there would no longer be a federal EPA, FDA, FBI, ATF, or DEA.
I predict that before this decade ends, States will be able to opt out of Federal gun laws for activities that don’t involve a firearm, ammunition or accessory (such as a suppressor) physically crossing state lines, in truly interstate commerce. Ironically, it may be the diversity between Federal and State marijuana laws that forces the issue. Per the 10th Amendment, there is no Constitutionally justifiable Federal supremacy in marijuana laws. And applying the Bruen test would seem a logical course, for the highest court. When this happens, I believe it will be a landmark case that will be a turning point in American legal history. Yes, it may be those dope smokers who force a general reassertion of States’ Rights.
Haircuts Versus Surgeries
I developed the following analogy, to explain curtailing the power of centralized government: Overcoming bad laws should be like the remedy to a bad haircut. The difference between a bad haircut and a good haircut can be found within six weeks of regrowing hair. But time does not heal the damage caused by an incompetent, drunken, or senile surgeon. The patient bleeds out or dies of complications long before the effects of a bad surgery heal.
This is why I am a believer in term limits and sunset clauses. Term limits help prevent politicians from becoming entrenched and forgetting those who elected them and whom they ostensibly represent. And sunset clauses allow us to reexamine bad laws, rather than just “living with them”, until they eventually are tested by the higher courts. We suffered through 10 years of the Federal “assault weapons” and magazine ban from 1994 to 2004. But thankfully, its sunset clause brought it to an end. I believe that sunset clauses — possibly as brief as just two years — are apropos for most Federal legislation.
The LOG Amendment
I believe that one more check is required, to restrain government: A Limitation of Government (LOG) constitutional amendment that would limit congressional terms, limit expenditures, sunset-limit laws, and change the pluralities required for enacting laws. Specifically, I propose an amendment that would:
1.) Place three-term limits on House members, and two-term limits on Senators,
2.) Require a three-quarters majority for any law that would increase government spending or powers, but only a simple majority (51%) for any law that would reduce government spending or powers.
3.) Require sunset clauses for any legislation that creates a substantial outlay of taxpayer funds, or that might restrict individual liberty.
4.) Mandate a balanced federal budget and the gradual repayment of the national debt. Only during a declared war and with a 90% plurality would any expenditures above revenue be allowed, for a period of up to two years. A balanced budget would go a long way toward reining in Big Government.
In closing, I should mention that the Tenth Amendment Center is doing good work in educating the electorate on States’ Rights issues. They deserve your support. – JWR