This article was last modified on July 16, 2010.

Empire Strikes First: Amendment X

“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.”

Since ratification in 1791, the Tenth Amendment has been one of the most overlooked and underappreciated. We hear of battles over the First and Second, and people invoking the Fifth. Even the Eighth gets attention every time a debate breaks out on torture or capital punishment. But the Tenth spent the past two centuries largely in obscurity. That is, until the federal government began grossly overstepping its boundaries and people such as Michael Boldin took notice.

“The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument (Constitution) as originally ratified.’’ Such was the description of the amendment in the court case United States v. Sprague (1931). The amendment “added nothing”. What then is its purpose?

Likewise, the court declared again ten years later: “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.” This was United States v. Darby (1941). The amendment is a “truism”? Although simple, this is a case of big things coming in small packages — the amendment is a powerful tool, reminding states and citizens that the federal government does not have the right to interfere into our lives whenever it pleases.

Indeed, the Supreme Court rarely declares laws unconstitutional for violating the Tenth. But this does not mean it never does. Justice Sandra Day O’Connor wrote in 1992 that the federal government can encourage the states to adopt certain regulations through what’s called “the spending power”, offering funds in exchange for adopting certain conditions. Congress cannot force states to enact federal regulations, but they can bribe them to do so. The nationwide 55 mph speed limit, .08 legal blood alcohol limit, and 21-year drinking age were passed through this method; the states would lose highway funding if they refused to pass such laws. This is called “cooperative federalism”, though it sounds more like coercive federalism. Justice Antonin Scalia clarified in 1997 that any act that “forced participation of the State’s executive in the actual administration of a federal program” was unconstitutional.

Other issues, such as the legalization of medical marijuana, are tricky. As decided in 2005 following the case of Gonzales v. Raich, it was determined that even if someone were to grow medical marijuana in a state that has legalized such a practice, this could still be illegal on the federal level. Their reasoning? That the marijuana’s very existence creates a possible influence on the interstate market, and if something is “interstate” it must answer to federal guidelines. If you find this logic flawed, you are not alone, but as of now this seems to be the consensus of the court.

Those who love freedom soon found a friend in Milwaukee native Michael Boldin, who founded the Tenth Amendment Center in 2006 during the Bush Administration to combat what he saw as a gross overreach of federal power, particularly from the executive branch. He believes that the issue of power was extremely important to the America’s founders (particularly Patrick Henry, Thomas Jefferson and Samuel Adams). Deeply distrusting government power, their goal was to prevent the growth of the type of tyranny that the British had exercised over the colonies.

And the reasoning is common sense: When states and cities draft policies, the people are close to the policymakers, and policymakers are more accountable to the people. Few Americans have spoken with Barack Obama; many have spoken with their mayor. My state representative, Tom Nelson, can be found around town often and is always ready to talk shop.

I spoke with Boldin, who was not shy about spreading his message. He believes the Tenth Amendment is a “rule of construction”, something that “tells us how to view the entire document of the constitution — and was added so that there would be no question on how to do so.” Boldin interprets the amendment to say, “‘We the People’ are the top of the food chain, and D.C. is only authorized to exercise those powers that We gave it — in the Constitution.”

He lists some examples of laws he believes the Tenth regulates. “The federal government is not authorized to require you to purchase a health insurance plan. It’s also not authorized to define marriage — at all. It can’t block your state from allowing marijuana — for medicinal or recreational use. It can’t bailout its buddies in GM, or Ford, or any other company. And it can’t go to war without a Congressional declaration of war — something that’s not happened since WWII.” This is what makes the Tenth such a powerful tool, as interpreted by Boldin; people of any political stripe can use it. Republicans, such as J.B. Van Hollen, can attack federal health care. Democrats can push for same-sex marriage. Libertarians can have their pot and smoke it, too. And the pacifist socialists? No more war in Iraq, Afghanistan or anywhere else.

Many states have taken notice in the past year or two, proposing “state sovereignty” resolutions and bills, which would mandate legal action against unconstitutional federal legislation. Others have sought the cancellation of gun registration. Fourteen states have declared medical marijuana legal, and California will vote in November to make marijuana legal for recreation. Thirty states are gearing up to battle the Obama Administration if residents are forced to buy health care insurance; Idaho governor Butch Otter has already signed a bill requiring the attorney general to sue. Seven states are trying to bring National Guard troops home, and another seven are trying to create non-federal legal tender backed by gold. Three states have proposed that federal agents cannot arrest people within the state without permission of the local police. We are also hearing of “sanctuary cities” where immigration law is being ignored. The examples of local versus national power are growing by the day.

Wisconsin is no exception. On April 9, 2009, State Senators Leibham, Lazich, Darling, Grothman, Harsdorf and Schultz, all Republicans, introduced legislation to bolster the state’s sovereignty, writing that “many federal mandates are directly in violation of the Tenth Amendment” and that the “resolution shall serve as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of its constitutionally delegated powers”. The proposal was ultimately rejected, due to the Democratic majority in Congress.

I called Senator Grothman, who explained his position to me. He says “the government is growing too much” and, for example, that “it’s not up to the federal government to say you have to modify an apartment you want to sell”. He was awoken when “Barack Obama during his campaign mentioned we should have a police force — a national security force — as strong as the armed forces”; this is “a very scary thing”. He feels that our forefathers “anticipated police forces be local”. But Grothman has harsh words for Bush, as well. He says No Child Left Behind has “seeds” that set graduation standards, and that’s “deplorable”. Not mincing words, the senator says Bush was the “worst Republican president since Hoover”.

Grothman and I disagree on many things, but on this issue we may see eye to eye. All power should be questioned, and if found illegitimate be dismantled.

Gavin Schmitt ( likes the idea of government health care, but would like to see Wisconsin — not DC — take the lead.

Also try another article under Political
or another one of the writings of Gavin.

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