A 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 “won’t
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 unconstitutional.
The Tenth Amendment makes the principle clear: Whatever the Constitution
doesn’t 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.”
That’s not a beautifully crafted sentence, but it’s far
from the “unedifying truism” and “platitude” our
conservative legal scholar says it is. It prohibits the federal government
from assuming powers the Constitution doesn’t 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.
It’s chiefly a limitation on federal power. It doesn’t
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 Roosevelt’s 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 didn’t emancipate
a single slave in the Union states; that step required the Thirteenth
Amendment, constitutionally delegating a new power to the federal government.
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 Roosevelt’s 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 hadn’t
claimed. The Court substituted the telling word “surrendered” for
the Constitution’s 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? Roosevelt’s 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 commerce.
Today Congress doesn’t 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
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 can’t be changed by the courts
or superseded by case law. Lincoln understood it; today’s conservatives
Copyright © 2011 by the Fitzgerald
Griffin Foundation. All rights reserved. This column was published originally
by Griffin Internet Syndicate on July 20, 1999.
Joe Sobran was an author and a syndicated columnist. See bio
and archives of some of his columns.
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