Our latest constitutional debate: What’s the 10th Amendment mean?

"Signing of the Constitution" by Howard Chandler Christy
aoc.gov
“Signing of the Constitution” by Howard Chandler Christy

You’ve heard some talk — from Michele Bachmann and Tim Pawlenty among others — that the health care bills making their way through Congress may be unconstitutional. Pawlenty kinda took his back. Bachmann won’t explain hers, at least not to me. (I have renewed my request to Bachmann’s spokester for an explanation of Bachmann’s constitutional objections to the health care plan.)

But in both cases, the argument derived from the 10th Amendment to the Constitution, which states that all powers not delegated to the federal government are reserved to the states and to the people.

The 10th, which has not been a major litigation-producing provision of the sacred charter over recent years, is being raised a lot by small-government conservatives. People who take this view are being referred to as “Tenthers,” but I gather this is a term designed by their critics.

So here’s a quick overview of the amendment’s text, history, the recent arguments and contemporary case law.

How we got the 10th Amendment
The framers of the Constitution were, for the time in which they operated, advocates of a strong federal government. Madison, Hamilton, Franklin, George Washington and the rest of the guys (not Thomas Jefferson, who wasn’t at the Constitutional Convention and who was generally not an advocate of a strong federal government) gave the new national government that they created as much power as they thought they could get passed in a country that, they understood, feared concentration of power.

Some of them wanted much more federal power. Alexander Hamilton, I kid you not, wanted the president to have power of appointment over the governors of the states (he proposed it at the Constitutional Convention). James Madison, the single most influential player in the creation of the Constitution, felt strongly that Congress should have veto power over laws enacted by state legislatures. These are inconvenient facts for those modern conservatives who assert, based on selective use of evidence, that the framers would be horrified by the leviathan that Washington has become.

James Madison
Portrait by John Vanderlyn
James Madison

At the end of the convention, two of the most states-rights oriented delegates  (George Mason of Virginia and Elbridge Gerry of Massachusetts,  if you must know) suggested that a list of guarantees be added to the Constitution of things that the national government couldn’t do (regulate speech, press, religion, force people to quarter soldiers in their homes, that kind of thing).

Madison and others argued that if wasn’t necessary to say what the new government couldn’t do, since it could do only what the document said it could do.  Here’s how Hamilton, in the subsequent “Federalist Papers” essays on behalf of ratification of the Constitution, put the case:

“Why declare that things shall not be done which there is no power to do?”

The idea attracted little support among the other framers. Mason and Gerry couldn’t carry even their own state delegations for the idea. Their proposal was rejected 10 states to 0, and became a major reason that Mason and Gerry refused to sign the final draft of the Constitution that was circulated to the states for ratification.

More famous founding fathers weigh in
During the ratification battles that followed, the lack of such a statement became one of the chief arguments against ratification. Kind of like the health care debate of today, opponents of the Constitution — most notably the famed Patrick Henry of Virginia — portrayed it as a roadmap for big federal government takeover of every aspect of national life.

Patrick Henry, who really wanted to defeat the entire Constitution for several reasons, suggested that if Virginia wanted to ratify the draft, it should do so only provisionally, on condition that a new convention be assembled to provide a proper set of guarantees for the rights of states and individuals.

Patrick Henry
George Bagby Matthews
Patrick Henry

Madison, one of the chief strategists on behalf of ratification, recognized that the whole project could be brought down if various states ratified conditionally. So he cut a deal with key players in a few states. If they would support ratification without formally attaching conditions (which would have the effect of nullifying the ratification), he would promise a bill of rights as amendments to the Constitution, to be enacted by the first Congress.

Madison’s deal worked, and he kept his end of the bargain. As the leading member of the first House of Representatives, he pushed through a list of amendments (that he had previously argued, and probably still believed, were unnecessary.) Ten of them were eventually ratified by the states and became the portion of the Constitution that we unofficially call the Bill of Rights. You have an idea of some of the things covered (or if you don’t, you can plead the Fifth). But probably one of the lesser known (until it has recently become a favorite of small-government conservatives) is Amendment 10, which states:

“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.”

So there it is. As you can see, it’s sort of a summary of the argument that Madison, Hamilton had been making about why no such amendments were necessary. The Supreme Court actually said in a 1931 decision that the 10th Amendment was a “truism” that “”added nothing to the [Constitution] as originally ratified.” (In other words, the court agreed with Hamilton/Madison that, with or without the 10th, the federal government had only those powers delegated to it by the Constitution).

Alexander Hamilton
Portrait by John Trumbull
Alexander Hamilton

But while the application of the 10th to actual questions that might arise would become complicated, you can see why small government (especially small federal government) conservatives have special feelings for the 10th. It says that the federal government has no powers other than those delegated to it by the Constitution. Which means we have had two centuries plus to consider what powers are delegated to the federal government.

The historical review up to now has relied on my own previous work on the origins of the Constitution. For the subsequent history of the 10th, I turned to Professor Suzanna Sherry, now of the Vanderbilt University but who, in previous work at the University of Minnesota, was my go-to expert on Constitution questions.

That pesky commerce clause
The question of what powers the federal government possesses has been based much less on the Supreme Court’s reading of the 10th Amendment than on its reading of the commerce clause.

Among Congress’ specifically enumerated powers in Article I, Section 8, is the power:

“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

If a federal action is properly taken within Congress’ interstate commerce power, then it does not violate the 10th Amendment.

For the first century and more of constitutional interpretation, federal involvement in the domestic economy grew, but the question of what Congress could do in economic matters was a moving target.

In the early decades of the 20th Century, a conservative majority on the Supreme Court interpreted the commerce clause narrowly, much as today’s small government conservatives would advocate. The court struck down the first federal minimum wage and hour laws, child labor laws, agricultural relief laws and several of the major early elements of President Franklin D. Roosevelt’s ambitious and unprecedented efforts to mitigate the effects of the Great Depression. The Supreme Court felt these laws stretched Congress’ interstate commerce powers too far.

The court-packing plan
The key moment in the recent history of this question occurred when Roosevelt was reelected, by a landslide and with a huge Democratic majority in Congress, and pledged to the same New Deal approach that the court had been blocking.  

Roosevelt suggested (this was actually introduced as legislation but never came to a vote) that some of the older justices were having trouble keeping up with the pace of work and it might be a good idea to expand the size of the court when there were too many elderly justices.

Franklin Roosevelt
Photo by Elias Goldensky
Franklin Roosevelt

(You may be surprised to learn that the size of the Supreme Court is not specified in the Constitution. It has fluctuated over history and Congress would have the authority to increase or decrease it, although it has been at nine justice for more than a century.)

Notwithstanding FDR’s touching concern for the workload of the justices who had been striking down his program, the effect of a massive expansion of the court would a massive expansion of pro-New Deal justices. Roosevelt was denounced for his power grab, but, whether this was a coincidence or not, a minimum wage law that was on appeal to the Supreme Court was approved by a 5-4 ruling, with one of the conservative justices deciding that it was a constitutional use of the power to regulate interstate commerce (and that, therefore, was not a 10th Amendment violating overreach of federal power).

Since that breakthrough, federal power has extended into many areas of the economy might not have been approved by that pre-new Deal court. The commerce clause has been interpreted to authorize many laws whose real purpose was not truly to regulate commerce between the states but for which it was possible to point out some way in which the effect of the law would or could affect commerce.

For example, the Supreme Court struck down California’s attempt to legalize marijuana for medical uses and upheld the federal government’s right to outlaw marijuana nationally (even though the California law affected marijuana that would be cultivated and consumed in California and therefore would not directly be part of interstate commerce). The logic was that legalizing marijuana in one state would effect the national market for marijuana and therefore federal preemption of a state’s right to decide what drugs are legal within that state was permissible as a regulation of interstate commerce.

Clarence Thomas
Clarence Thomas

Justice Clarence Thomas, who dissented on that one, wrote that if Congress can use it’s interstate commerce powers to regulate a commodity that crossed no state lines “then it can regulate virtually anything — and the federal Government is no longer one of limited and enumerated powers.” That lonely Thomas dissent might be an anthem for the Bachmannians who believe that an important constitutional principle has been improperly interpreted out of the Constitution.

The 10th since the New Deal
Since that 1937 reversal by the Supreme Court (which has long gone under the cute moniker “the switch in time that saved nine”), the 10th Amendment has seldom been upheld as a limitation as the power of the federal government.

Sherry said there were really only two cases of any consequence in which a 10th Amendment challenge prevailed. In one, New York vs. the United States (1992), involved federal incentives amounting to compelling the New York Legislature to enact laws that the feds preferred for the handling of waste from nuclear power plans. In the other, Printz vs. the United States (1997) , the Supremes struck down certainn portions Brady Handgun Violence Prevention Act because the act required local law enforcement officials to conduct background checks when someone tried to buy a handgun. The key was not the gun rights issues (and most of the act remains in place), but the fact that the feds were treating state and local officials as arms of the federal government. The key word, Sherry said, is “commandeer.” The current reading of the 10th Amendment is that it bars the federal government from “commandeering” either the state legislature (forcing it to enact particular laws) or the state/local executive branches (forcing its officials to enforce policy).

“Essentially, the Supreme Court is saying that Congress cannot tell state and local officials how to do their jobs,” Sherry said.

But even that application of the 10th amendment is offset by the many ways that the feds have found to provide financial incentives to encourage the states to implement what the feds think should be national policy, even in areas that are clearly within the states’ jurisdiction.

For example, Sherry said, setting the legally drinking age is clearly a state power. But the Congress did pass a law that said that states that don’t set the legal drinking age at at least 21 years would lose some of their federal highway funds. The court has upheld this kind of incentivizing (bribery? extortion?) if there is any plausible connection between the bribe and the state conduct that the feds are trying to influence. (Those under 21-year-old inebriates might decide to drive on federal highways.)

The modern reading of the 10th Amendment is not one of those issues that separate the liberal and conservative wings of the current court, Sherry said. With the possible exception of Thomas on some aspects of 10th Amendment jurisprudence, the rest of the court seems to have accepted that only by “commandeering” state officials can the Congress overstep its 10th Amendment boundaries.

To loop back to where we started
Sherry said that no 10 Amendment challenge to the health care bills currently before Congress would have any success in court. The key is not the 10th Amendment, but the commerce clause. If someone could establish that health care did not have much a connection to commerce, that would be different. But things that affect the cost of health care are clearly part of commerce. “I can not imagine an argument that health care regulation that is designed to reduce health care costs or provide health care for those who don’t have it, would be beyond the commerce clause” Sherry said.

If it is covered by the commerce clause, then it is within Congress’ power to regulate and doesn’t present a close or interesting 10th Amendment question.

Having reviewed the history and precedents, I can understand how contemporary conservatives might feel that a basic promise, made at the time of the framing and ratification of the Constitution, has been made to disappear. But given the power of precedent and powerful weaves of history that have expanded the federal government’s role in modern U.S. society, the 10th Amendment movement would have a long long way to go to have any impact on this debate on that basis. 

Comments (30)

  1. Submitted by Peder DeFor on 09/30/2009 - 07:09 am.

    The ‘Tenther’ tag is indeed one assigned by critics. They believe that some silly conservatives believe that an entire amendment means what it clearly says. How crazy! If only those limited gov’t types could find something that is clearly in the text, like the privacy right upheld in Roe v Wade.
    More seriously, the commerce clause has been given powers well beyond what it should have. It’s original concept was to keep the states from starting trade wars with each other. It has mutated to the point where it somehow allows Congress to even regulate whether someone can grow marijuana for their own use or not. Post New Deal jurisprudence has really gone off the rails here.

  2. Submitted by Greg Kapphahn on 09/30/2009 - 07:13 am.

    The “tenthers” just represent one of the many and varied ways our Reb (and some Dem) friends are grasping at straws trying to support the profits of their truly excellent friends (i.e. big campaign contributors) of the insurance companies, medical providers, and medical products companies by killing any reform which does not preserve, protect, and even increase those profits (i.e. which does not follow in the mold of the Medicare Prescription Drug and “Medicare Advantage” ripoffs of the US Treasury).

    (Watch the future, for instance, wherein Max Baucus will retire from the house, or be voted out of office, and take a very well-paying job with the healthcare/insurance industries as so many serving on defense-related house committees have done.)

    Meanwhile, the Rebs know that, if the Dems get credit for even the most miniscule reforms leading to increased availability and lower cost of healtcare for the general public (which the Rebs as they exist today, could never, ever bring themSELVES to vote for), it will cause the public to feel warmly toward the Dems for at least the next couple of election cycles.

    Beside that, if healthcare becomes a more universal, public system, the only way they could protect themselves from having to share from their plenty to assist in paying for the healthcare of others would be to do as they have done over the past 20+ years with the public schools – attack those working in that area.

    That would be hard for them to do because, whereas teachers, being educated, moderately paid, and fact-based tend to have the “liberal bias” that reality carries with it, and can, therefore, be attacked at will and at whim, the doctors (especially the very highly-compensated specialists) and the executives of medical companies tend to be among the Rebs’ best friends.

    They could hardly attack and seek to dismantle the businesses of some of their most highly-paid friends for “waste and fraud” they way they have the public schools and government in general. That would be like attacking their defense contractor friends!

    The Rebs need to stop this, and will try to do so at any and all costs. Far too many of the Dems have similar motivations. The cost to campaign financing seems to be the overriding congressional consideration – The American Public be damned!…

    Which they will be until a constitutional amendment is passed which requires the limitation of political campaign “free speech” to well-regulated, publicly financed campaigns. Lacking that Americans will continue to have “the best government money can buy.”(Will Rogers)

  3. Submitted by Paul Brandon on 09/30/2009 - 10:02 am.

    For you strict constructionists, where does the constitution say that corporations are people (as opposed to being composed of people, whose standing and rights are not in question)?
    Since corporations are clearly intended for commercial purposes, and the one’s whose political speech is in question clearly operate interstate (if not internationally), the right of the Federal government to regulate them is clear.
    That they have the same rights s private citizens of these united states is not.

  4. Submitted by Ron Frannea on 09/30/2009 - 11:33 am.

    With the 10th Amendment stating, “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,” could not a case be made for creating a national referendum vote based on the verbiage “or to the people”? It seems to be permissible for a specific issue like affordable access to health care since it affects the citizenry as a whole, not those in one state but not another. If this “strict interpretation” of the amendment is true, and since poll numbers indicate 65% of the populace in favor of a public health insurance option, wouldn’t a national referendum put an end to this needless tug-of-war about coverage?

  5. Submitted by Daryl Hanson on 09/30/2009 - 11:51 am.

    Your comments above don’t jive with the literature. You say:

    The framers of the Constitution were, for the time in which they operated, advocates of a strong federal government. Madison, Hamilton, Franklin, George Washington and the rest of the guys (not Thomas Jefferson, who wasn’t at the Constitutional Convention and who was generally not an advocate of a strong federal government) gave the new national government that they created as much power as they thought they could get passed in a country that, they understood, feared concentration of power.

    but according to the left leaning wikipedia:

    The chief characteristic of Madison’s time in Congress was his work to limit the power of the federal government. Wood (2006a) argued that Madison never wanted a national government that took an active role. He was horrified to discover that Hamilton and Washington were creating “a real modern European type of government with a bureaucracy, a standing army, and a powerful independent executive”.[19]

    What is it???? limited or strong.

    I believe you interpreted this all wrong. Our government fore-fathers believed in a very very limited government.

    Again, one you have a bunch of clowns sitting in Washington and making up rules (laws) and others interpreting those said laws just brings about a disconnected bureaucracy. They are paid higher than the average American (~50K) versus (~>120K). Our elected officials should not be full time. They should meet for 1 month and get out of there and go home. No pay, just money to fly to and back. Nothing more. Volunteers Get a real job back at home and live like normal people live….

    I guarantee that the size of government would fall exponentially and we would return to the original intend of the founders of our country.

  6. Submitted by Thomas Swift on 09/30/2009 - 12:06 pm.

    “since poll numbers indicate 65% of the populace in favor of a public health insurance option…”

    Not so much.

    “Just 41% of voters nationwide now favor the health care reform proposed by President Obama and congressional Democrats. That’s down two points from a week ago and the lowest level of support yet measured.

    The latest Rasmussen Reports national telephone survey finds that 56% are opposed to the plan.”

    http://www.rasmussenreports.com/public_content/politics/current_events/healthcare/september_2009/health_care_reform

  7. Submitted by Jeremy Powers on 09/30/2009 - 12:12 pm.

    Thanks Eric for a good perspective piece. The 9th and 10th Amendments are the most important ones in the Bill of Rights. But I am always amazed that conservatives ignore the 9th and 10th amendment, such as the obvious use of the 9th for the right of privacy, until think they can essentially pull a Civil War secessionist effort with the 10th. Its intention is very clear. What were they doing in their high school American History class?

  8. Submitted by Glenn Mesaros on 09/30/2009 - 12:15 pm.

    Obamacare has nothing to do with extending health care to anyone, but just designed to cut Medicare by $500 billion, and kill the elderly. The UNconstitutional Federal Reserve system, which is bankrupt, has printed trillions to prop up a dead financial system. There is no money for health care, and the liberals are defending a dead horse. That is why Barney Bailout Franks is freaked out at even the meek suggestion to audit the Federal Reserve in HR 1202.

  9. Submitted by Joel Jensen on 09/30/2009 - 12:52 pm.

    How about if everyone rallying round the banner of “keep free market competition in health care insurance” add a talking point about removing the exemption insurerance companies have from the antitrust laws intended to protect against monopolistic conduct intended to destroy competition – laws that every other business in the United States are subject to (except professional baseball.)

    If you are in doubt about the impact that exemption has had, you might want to read the 2007 American Medical Association report entitled “Competition in Health Insurance” that found that 97% of the markets studied are “highly concentrated”; and 96% had one company with more than 30% of the market (considered by the DOJ to create the threat of monopsony power to the detriment of patients.

    http://www.ama-assn.org/ama1/pub/upload/mm/368/compstudy_52006.pdf

    The 10th Amendment application to circumstances such as these was limited and defined long ago, in large part due to the development in the US of a national economy with businesses and business activities that could not be regulated seperately by the states. I significant part, this was to help those large companies to avoid multiple inconsistent and potentially conflicting regulatory schemes.

    Since 1945 rulings by the US Supreme Court, the ability of Congress to regulate insurance, including health insurance, has been settled law. Around that same time, Congress saw fit to assign much of that regulatory authority to the states and exempt insurers from most of the federal antitrust laws, while retaining an obligation to assess and oversee such state regulation. (McCarran-Ferguson Act.)

    The Congressional Research Service did a thorough look back at Insurance Regulation in 1995 that is worth the read for anyone who actually feels the need to know what they’re talking about.

    http://wikileaks.org/leak/crs/RL31982.pdf

  10. Submitted by Eric Black on 09/30/2009 - 01:03 pm.

    Thanks to all for excellent comments.
    A quick reply to Daryl on my generalization about the framers. Every single provision of the Constitution created a much stronger federal government than what existed at the time under the Articles of Confederation. That’s beyond dispute. The majority at the convention favored this. Madison was the single most influential in getting the convention called and the Constitution written and ratified. He said afterward that his greatest disappointment was the failure to include a federal veto power over laws enacted by the states.
    I agree with Darryl about Madison’s later career. During the Washington and Adams administrations, Madison became Jefferson’s chief lieutenant and the party that formed around Jefferson was leery of excessive federal power. This was a change for Madison from the position he took during the framing and ratifying period. But given the information, especially in my first paragraph above, I very strongly believe in my generalization about the framers. I’m not saying that they anticipated all of the many expansions of federal power that have ocurred since their day. Of course not. But in the context in which they worked in the late 1780s, especially when you consider the Constitution against the Articles of Confederation, the framers were all about expanding federal power and in big, serious ways.

  11. Submitted by Mark Radosevich on 09/30/2009 - 01:29 pm.

    Eric, I just have to say that this article is, without doubt, the best thing I’ve ever read on MinnPost. It is thorough, well researched, descriptive, analytic and informative, and you do a great job acknowledging your personal conclusions while keeping the article objective. I wouldn’t mind seeing some references or citations, but that’s a small quibble, and anyway that would be unheard of in a newspaper story. Thank you for your work.

  12. Submitted by Aaron Klemz on 09/30/2009 - 01:42 pm.

    Does anyone else find it ironic that the centerpiece of any GOP alternative to Obama’s health care proposal is to remove wht they characterize as inefficient and duplicative state regulations on health insurance (nationalize the health insurance market) while they invoke 10th Amendment / states rights arguments against the Obama proposal?

  13. Submitted by Jeremy Powers on 09/30/2009 - 01:54 pm.

    Glenn Mesaros succinctly shows us both enumerated rights – the right of freedom of the press – and non enumerated rights – the right to apply his opinion to a nearly incoherent rambling for which there is virtually no facts at all.

  14. Submitted by Ron Frannea on 09/30/2009 - 02:05 pm.

    Mr. Klemz: I agree.

    Mr. Swift: regardless of what one poll may say in comparison to another, I believe the larger point is that if Republicans are so keen on applying the 10th Amendment when it comes to federal legislation for each U.S. citizen having affordable access to health care coverage, shouldn’t Republicans equally–if not more fervently–promote a nationwide referendum on the issue? After all, that is, apparently, what the amendment allows in its verbiage at its conclusion: “…or to the people”? Sort of like giving the power to the people instead of the “suits” in Washington and Wall Street. Or does one part of the amendment trump its other parts? Hmmm…but the application of standards must also be uniform, no?

  15. Submitted by myles spicer on 09/30/2009 - 02:58 pm.

    Perhaps we should cut through all the complexities, nuances, and legality of Constitutional Law, and just acknowledge that if Michele Bachmann says it…it MUST be true!

  16. Submitted by Paul Brandon on 09/30/2009 - 04:21 pm.

    If the Republican Party had supported the 10th Amendment in 2000, the U.S. Supreme Court would not have over ruled the Florida Supreme Court (states’ rights) and Gore would have been president, not Bush.

  17. Submitted by Susan White on 09/30/2009 - 05:28 pm.

    As one who taught Constitutional Law for 30 years, I commend your quicky effort. The relationship between the enumeration issue and the Bill of Rights deserved more attention, but I hope the tenthers read this and try to understand it instead of relying on opinions spouted by the ignorant. These opinions are not only inaccurate but silly. The rational citizen should pay no attention to the ignorant babblings of those who have never studied the Constitution and its extensive case law.

  18. Submitted by Paul Brandon on 09/30/2009 - 08:08 pm.

    And then there’s the role of the National Guard.
    This has always been regarded as the ‘militia’ that the second amendment refers to; an organ of the states, not the federal government.
    The current treatment of the guard as part of the federal military ought to be an affront to all supporters of strict construction and states rights — it amounts to the federal government taking over an organ of the states.

  19. Submitted by Clayton Haapala on 09/30/2009 - 09:30 pm.

    The more things change, the more things stay the same.

    Cardozo’s 1936 opinion upholding the Social Security Act provisions brings up this Founder’s Conflict, though not in a 10th Amendment sense:

    “Congress may spend money in aid of the “general welfare”. Constitution, Art. I, section 8; United States v. Butler, 297 U. S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision.

    … [citations] Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.”

    Then, read the subsequent paragraph, substituting healthcare for unemployment:

    The purge of nation-wide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from state to state, the hinterland now settled that in pioneer days gave an avenue of escape. Home Building & Loan Association v. Blaisdell, 290 U. S. 398, 442. Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation. If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co. supra, has set the doubt at rest. But the ill is all one or at least not greatly different whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.”

  20. Submitted by Eric Ferguson on 09/30/2009 - 10:45 pm.

    I’d be interested to see something like this on the ninth amendment, which like the tenth is rarely invoked: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Essentially is says the people can’t lose rights because the framers of the Bill of Rights didn’t think to include them. This has been the source of rights which conservatives sometimes claim a court made up out of nothing. In light of the debate on health care reform, could access to health care be construed as a right not newly created, but protected by the ninth amendment?

  21. Submitted by Bernice Vetsch on 10/01/2009 - 11:34 am.

    Ron Franna (#4) and Thomas Swift (#6). (Plus #20 and #21, thank you, sirs)

    I believe the 65% public approval rate cited is actually for single-payer universal health care rather than the public option killed (for the moment) in the Senate Finance Committee plan. In addition, a 2007 study reported in the MMA’s magazine found that over 60% of Minnesota’s doctors would prefer single payer.

    Perhaps a nationwide referendum or state by state action might be the only way to assure that the Congress will ever give The People what The People know is the least expensive and most effective way to be sure that every American has access to regular, affordable care.

  22. Submitted by Howard Miller on 10/01/2009 - 02:00 pm.

    This is the sort of article, and ensuing poster conversation, that makes me delighted to subscribe to MinnPost.

  23. Submitted by John E Iacono on 10/01/2009 - 05:25 pm.

    I’ve just finished reading the Federalist papers again. I have read the Constitution and the Bill of Rights many times over.

    EB’s summary on the background in which these documents were written is the finest I have ever seen anywhere.

    Just one question for those who claim “the repubs” are pushing the 10th amendment objection: I have heard that MB has raised it. I have yet to see any prominent repub congressperson raise it. What basis is there for saying or implying this is a general movement by the repubs?

    Or is this perhaps just another one of those efforts to paint all with the words of one, to smokescreen what is really being proposed by the dems? Nah, couldn’t be.

  24. Submitted by Eric Ferguson on 10/01/2009 - 11:58 pm.

    John, the Tenth amendment has been raised by more than just Bachmann, though she grabs the attention. Here’s Pawlenty, Palin, and Perry: http://www.gop12.com/2009/09/pawlenty-lets-talk-10th-amendment.html

    Here are some state senators: http://www.peachpundit.com/2009/09/03/georgia-republican-senators-assert-10th-amendment-desire-to-return-to-minority-status/

    I know you said congressmen, not just Republicans in general. Here’s one, but the point is it’s more widespread than just congressmen: http://libertarianrepublican.blogspot.com/2009/09/rep-posey-endorses-10th-amendment.html

    I did a search on ask.com for “republicans, tenth amendment”

  25. Submitted by James Hamilton on 10/02/2009 - 12:03 am.

    An excellent article and, by and large, an interesting discussion. A few comments:

    The corporate ‘person’ predates our Constitution by some centuries. It was a given at the time of the convention.

    There’s not a middle school in the country (I hope)that would permit a student to cite Wikipedia as a source.

    The Constitution makes no specific provision for a national referendum, but specifically charges Congress with the enactment of laws, subject to veto. Whether Congress could delegate that power to the people is an interesting question, one which I hope never to see answered.

  26. Submitted by John E Iacono on 10/02/2009 - 11:20 am.

    Eric,
    I am aware that several others have taken up the question — very guardedly — since Bachmann brought it up and under challenge from critics to disown her. Raising a hue and cry against her and taunting her allies with her statement raising the question — I repeat — raising the question in my opinion does cause careful statements by others who do not wish to join in the attack against her. That is somewhat different from claims implying this is a “Republican” position.

    James,
    I find myself puzzled that you appear to find objectionable referring a matter to “the People” in a country stitched and held together by the clear assertion that all power and ultimately all decision making power in any matter resides with them as the ultimate source of authority over us.

    I thought this question was answered once and for all when the Constitution was ratified, notwithstanding the elitists who believed “the People” could not be trusted with such power.

  27. Submitted by John E Iacono on 10/02/2009 - 11:32 am.

    (#19) Paul Brandon: And then there’s the role of the National Guard.

    “The president shall be commander in chief of the army of the United States; and of the militia of the several states, when called into actual service of the United States…”
    Article II, Section 2, Constitution of the United States.

    If one thinks about it, the militia, or National Guard, has been pretty much “called into actual service” for years now. The founders preferred a smaller federal army with the right to enlist the militia when occasion arose. That’s why we have it this way: it keeps the federal forces smaller by design.

  28. Submitted by Paul Brandon on 10/02/2009 - 11:26 pm.

    John–
    You are of course correct about the constitutional role of the National Guard.
    I may be wrong, but I don’t recall the Guard having nearly as strong a role in Vietnam, or Korea.
    I have less memory of WWII (I was 4 when it ended), but I think that by the end of the war most troops were draftees. I believe that the Guard was called up at the beginning of the war.
    The difference of course is the volunteer military, which can’t provide enough troops to meet all of our post WWII commitments.
    BTW — does the Constitution authorize the President to employ mercenaries (I suppose that’s another emanation).

    And of course one reason the founders preferred to use state militias was that during the Revolution they had trouble raising enough money to pay Federal troops and were forced to rely on militias.

  29. Submitted by Colin Lee on 09/23/2010 - 09:23 am.

    Reading over some of the comments, it seems clear that the Jeffersonian concept of limited government has been hijacked to mean something different than what it meant to him. It’s too easy to forget that there was no public system of education at this nation’s founding. However, Jefferson was probably the strongest advocate of public education this nation had. When Jefferson spoke of limited government, it was almost always in reference to the excesses and tyranny the Founders had observed in British government. Our founders were opposed to Imperialism and the curtailing of civil rights. They wanted a nation with no standing army where the military could not dictate foreign policy and the accused could stand before a fair and impartial jury of their peers. Both of these core ideals of limited government are under attack by today’s so-called Constitutional Conservatives who want interventionism in the Middle East and unlimited corporate campaign donations in judicial elections. Where health care comes into Jeffersonian limited government is a question that only a so-called Constitutionalist can answer. Clearly, our Founders had no problem mandating single payer health care via federal payroll deduction for privately-employed sailors in 1798. No Constitutional question was ever raised at that time. The only opposition in Congressional debate was Massachusetts which already had a duplicate system in their state and a few dissenters who worried that foreign sailors might use hospitals built with the money.

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