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Taking Tentherism seriously in Minnesota

The framers of the U.S. Constitution: What federal power did they envisioned?
aoc.gov
The framers of the U.S. Constitution: What federal power did they envision?

Are tenthers serious?

The impulse that is sometimes called Tentherism is part of the larger small-government conservative movement. Tentherism is an effort to take the 10th Amendment seriously. The amendment 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.”

For most of U.S. history, the 10th has been a relatively obscure coda to the Bill of Rights. The Supreme Court once dismissed the 10th as a “truism,” meaning that the federal government has the power to do only what it has the power to do.  (My previous short history of the 10th and how the Supreme Court has interpreted it is here.) Since the New Deal, almost every challenge to federal laws or actions that have reached the Supreme Court as a 10th Amendment challenge has been rejected.

But lately, the 10th has become a leading talking point for small government conservatism. When Tenthers see a proposal for a federal law or program they don’t like, they are wont to say, “Show me in the Constitution where the federal government is empowered to:  take over the health care system, set a national speed limit, bail out auto companies, bail out Wall Street, set minimum wages, require someone who doesn’t want health insurance to buy it,” etc.

Rep. Michele Bachmann
MinnPost/Raoul Benavides
Rep. Michele Bachmann

Some of Rep. Michele Bachmann’s statements about the constitutional limits on the power of the federal government and some of Tom Emmer’s legislative ideas for using state law to challenge federal power give new Minnesota currency to the Tenther momement and its theme of the runaway federal leviathan.

For example, in arguing on the “Hannity” program last year that the ObamaCare bill was unconstitutional,  Bachmann said:

“A lot of members of Congress may have forgotten what the Constitution says. But, again, it is not within our power as members of Congress, not within the enumerated powers of the Constitution, for us to design and create a national takeover of health care.”

Yes. Stipulated. Neither the word “health” nor “insurance” appears in the text of the Constitution. I don’t believe health insurance had even been invented in the time of the framers so it would be hard to argue that the authors of the Constitution envisioned a federal role in health insurance.

You don’t have to be crazy, stupid or evil to believe that over the years, federal power has grown far beyond anything envisioned by the framers of the Constitution and far beyond the federal powers explicitly enumerated in the Constitution. I certainly believe it.

Where does the questioning end?
But it sometimes seems when Tenthers demand to see the Constitutional enumeration for something that Congress has done, they are usually using the logic of the 10th to oppose on constitutional grounds something they already oppose on political/ideological grounds. Do they believe in strict constructionism as an inviolable principle, or only when it advances their own agenda?

Shortly after Bachmann started calling the Obama health bill unconstitutional, I tried to ask the congresswoman, via her staff, whether she felt that the 1965 creation of Medicare likewise exceeded the bounds of constitutionality. Medicare, essentially a single-payer system for the elderly, comes closer to being a “national takeover of health care” — at least for the over-65 set — than the Obama approach of new federal regulations over the health insurance industry.

Bachmann didn’t reply at the time, but I resubmitted the question as I started working on this post and I did hear back (more below). I suppose my question was obnoxiously passive-aggressive, but also a sincere effort to take Tentherism seriously. Perhaps that’s also a mean trick.

In the case of Medicare, there may be some small-governmenters who would truly like to see it go away. I don’t claim to know. As a matter of political reality, no one who hopes to seek election or reelection to public office dares to say so. Not even Bachmann and Emmer have suggested that Medicare should be struck down as an overreach of federal gigantism.

But that’s the point, at least of this post. If Tenthers are serious about the principle — if they are not just engaging in “results-oriented” Tentherism — why aren’t they also asking: “Show me in the Constitution where the federal government is authorized to create Social Security, set up national parks, or do anything to protect the environment, or declare national emergencies and provide aid to flood victims, or plug oil-spewing holes in the floor of the Gulf of Mexico?”

And speaking of health, where in the Constitution is the federal government empowered to provide lifelong health benefits to military veterans? Are tenthers bothered by this? And speaking of federal activities that many conservatives approve, which enumerated power of the president allows him to start undeclared wars? Which branch, if any, is empowered to create and indefinitely maintain dozens — or is it hundreds — of foreign military bases? Any basis to believe that this is something the Framers envisioned?

And speaking of things that we all just assume are in the Constitution, here’s a real mind-blower: Where exactly does the Constitution empower the U.S. Supreme Court to strike down laws duly adopted by the Congress and signed by the president? Go ahead, look for it. Ain’t in there. Not if you believe that federal power is strictly limited to those authorities that are explicitly enumerated in the text of the Constitution.

The 10th Amendment is in play, at least on the political/rhetorical battlefield. But if you take it seriously, it’s a mind-bender. So I renewed my question to Bachmann: Is Medicare covered any of the enumerated powers of the federal government? If so, which power? If not, what does she think should be done about it.

I did hear back, from Bachmann press secretary Rachel Horn, as follows:

“As a State Senator, Congresswoman Bachmann saw what happens to a state budget when Washington dictates services States must provide to the people.  The 10th amendment was included to prevent those kinds of situations and to preserve the small government principles the Founders preferred.  It clearly outlines that powers not given to the Federal level of government are for the individual states to deal with as they see fit.  The federal government overstepped its boundaries with the health care bill and essentially took the right to regulate and legislate health care away from the states. 

“Massachusetts is the perfect example in the case of health care, they went ahead with health care reform on their own, and they have that right. And now every other state can learn from Massachusetts’ system and address health care accessibility and affordability in a way that will best serve their individual constituencies.

“Hope that helps.”

I replied that Horn’s statement is slightly helpful but doesn’t address the main point of my question. “If Congress can’t do anything that isn’t explicitly enumerated, I don’t see how Medicare (also Social Security and a great many other federal programs) would be constitutional. I would like to know whether Rep. Bachmann believes the creation of Medicare was also unconstitutional, and if so, what should be done about it…

“I am interested in taking Rep. Bachmann’s view of the 10th amendment and strict construction of the constitution seriously. But if it is serious, she can’t cherry pick particular federal actions with which she disagrees for 10th amendment scrutiny.”

I asked for further guidance on the question. That was just a few days ago. I’ll keep asking, and I’ll also go a bit deeper in a couple of future post about taking Tentherism seriously.

Comments (32)

  1. Submitted by Karl Bremer on 07/01/2010 - 10:48 am.

    While you’re at it, Eric, howe about asking Bachmann about the federal farm subsidies program and where that power of Congress exists in the Constitution. You know, those federal farm subsidy checks that Michele and Marcus Bachmann are so happy to cash from their million-dollar golf course home in West Lakeland Township.

    http://ericblackink.minnpost.com/2007/11/08/a-guest-post-rep-michele-bachmann-opponent-of-farm-subsidies-benefits-from-them/

  2. Submitted by John E Iacono on 07/01/2010 - 11:01 am.

    While I don’t count myself as a “Tenther” I do believe that the tenth amendment means exactly what it says. Period.

    I also believe it might be a good idea to take another look at ALL of those programs which EB wants to throw out or force no objection to ANY federal power grab.

    I think, however, that a more equitable approach might be to take the position that ABSENT state objections, or objections from the poeple over a “taking” by the federal government the implied consent of the states or the people might be assumed.

    Which would NOT mean citizens or states have lost the right to object when they perceive their ox has been gored.

    Just because I choose not to go into road rage when someone cuts me off does not mean I lose the right to honk or call 911 in other egregious situations.

  3. Submitted by Susan White on 07/01/2010 - 11:02 am.

    The 10th Amendment was a compromise between those who wanted to “enumerate” the federal powers and those who wanted to leave the potential powers unenumerated and therefore open in order to allow for changing circumstances over time. The compromise clearly favored the “no enumeration” side of the debate. The US Supreme Court (which, as Justice John Marshal wrote, “says what the law is”) has over its many years of interpreting the Constitution never upheld a “tenther” type claim. The tenthers would do well to study history instead of babbling about claims that can easily be proved false on the basis of documented historical evidence. By the way, the Constitution was written to replace the Articles of Confederation which had already convinced the Framers that a loose confederation of states was unworkable.

  4. Submitted by Howard Miller on 07/01/2010 - 11:04 am.

    where in the Constitution does it say Congress should regulate partial-birth abortion? Or end-of-life feeding as in the Terry Shiavo fiasco?

    Doesn’t the spokesperson from Rep. Bachmann err, by saying, “It clearly outlines that powers not given to the Federal level of government are for the individual states to deal with as they see fit.” He conveniently leaves out “or, the people.” That would be an important check on over-reaching states, one would think.

    Do even 10% of us take Tentherism seriously? 😉

  5. Submitted by Ross Williams on 07/01/2010 - 11:14 am.

    Its all theater. Are we supposed to suspend disbelief and pretend that these political debates are intellectual exercises driven by some logical consistency? They aren’t. The reason Michelle Bachman doesn’t like the federal health plan is that many of the people who are likely to vote for her already have health insurance. Politicians use policy arguments to support their constituents self-interest.

    The interstate commerce clause gives the federal government the power to regulate just about everything. And that was the intent of the founders. They wanted a single national marketplace.

    So the issue is not whether the federal government has authority, but when and how they ought to exercise it. And that is largely driven by the self-interest of politicians and the people and institutions they need to get elected, whether voters, contributors, media or lobbyists.

  6. Submitted by Ray Schoch on 07/01/2010 - 11:18 am.

    Philosophically, “Tentherism” is worth taking seriously. I’d guess that there will always be – or perhaps always SHOULD be – tension over what various levels of government are permitted to do or prohibited from doing. Even an old guy who leans a bit left can see that the federal government’s reach and influence has grown considerably over just his own lifetime. So has the reach and influence of state government, and county government, and municipal government.

    But that’s talking about theory.

    As it’s applied practically, Eric has nailed the contradiction. “Tentherism” is an intellectual fraud, like much of what passes for “conservatism” nowadays. That doesn’t make it unpopular, or deny its appeal to a portion of the population, but it does mean that the intellectual basis for it is not principle, but political expediency. The 10th Amendment is invoked only for programs opposed by those on the right for political and/or social reasons, and more specifically, for government activities that are unpopular with some groups of constituents, whether for good reason or not.

    The Medicare recipient carrying the sign and yelling “Get the government out of my health care!” is the poster child for this sort of thinking. She either is ignorant of government’s role in Medicare, or has persuaded herself that she, unique somehow, will still get HER medical services provided at society’s expense after everyone ELSE’S medical services have been done away with by Constitution-loving right-wing legislators.

  7. Submitted by Brian Simon on 07/01/2010 - 11:36 am.

    I think Libertarianism and/or the Ron Paul movement actually do take ‘Tentherism’ seriously, and answer Eric’s questions along the lines of: yes, eliminate Medicare, Social Security & other programs of government gigantism. They would shut down foreign military bases & resize/rebudget the military solely for the purpose of defending our borders – not for being the world’s cop.

    I’m not sure what their take on the SC point would be however; I think they’re pro-checks and balances, so how you square that with the lack of explicitly enumerated ability to strike down laws is unclear.

  8. Submitted by Gerald Abrahamson on 07/01/2010 - 11:38 am.

    Now you are starting to get somewhere, but you are not quite there yet. After all, the Tenth Amendment does state “or to the people”. Therefore, precisely HOW “limited” is STATE authority? Because, in the end, all authority for govt can only be provided by the people governed.

  9. Submitted by Tom Miller on 07/01/2010 - 11:40 am.

    I wonder why there are no “Ninthers.” Is is a libertarian’s dream. Here is the Ninth Amendment to the Constitution:

    “Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Consider how a literal interpretation of this amendment would alter laws about reproductive choice, sexual orientation (don’t ask don’t tell among others), recreational drug usage, etc.

    Back to the Tenth…
    All of the candidates that advocating a literal interpretation of the Tenth Amendment are looking to tear down a higher level of government which would place more power into the hands of those holding the lower offices. A small fish in a huge pond, let’s say Gov. Emmer compared to entire U.S., would suddenly become a huge fish in a small pond, Gov. Emmer as the supreme commander of Minnesota. It would change a bit player among 300 million to the czar among 5 million. It is a pleasant change, if you’re the czar.

  10. Submitted by Paul Landskroener on 07/01/2010 - 11:53 am.

    You are right to press this question, Eric. The Tenthers are unwilling to accept the logical consequences of their argument and they should be called out on it.

    The conventional answer to the where-does-Congress-get-the-power question is the Commerce Clause, its power to regulate interestate commerce. While Tenthers complain that the Supreme Court has interpreted “interstate” so broadly that it no longer provides any limitation on Congress’ ability to legislate, the fact is that the Founders intended to encourate the nation to consider itself a single economic unit to be regulated nationally, and, most importantly, to give Congress (and not the states) the power to determine when national regulation is necessary and when it can be left to the locals.

    Given the national (not to mention global) reach of economic activity by corporations in the 21st Century and the mobility of the population and money, the idea that there are fifty state markets for health care that is beyond the reach of Congress to regulate is absurd.

  11. Submitted by Jeremy Powers on 07/01/2010 - 11:55 am.

    In addition to the 10th Amendment, Bachmann is apparently painfully unaware of the 9th Amendment, which states:

    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    I mean what part of enumeration don’t they understand? It may be the clearest right in the bill of rights – simply that just because we didn’t list a right doesn’t mean you forfeit it. If it were the case that only rights listed in the Constitution were given to people, a WHOLE LOT of rights we take for granted would disappear.

    This whole “enumeration” problem for the extremists is that they haven’t bothered to read AND understand the whole U.S. Constitution. Just the parts they like, such as the 2nd Amendment

  12. Submitted by Matt Abe on 07/01/2010 - 12:05 pm.

    Using the 10th amendment to selectively bash federal programs you don’t like is like using the Commerce Clause to selectively regulate behavior you don’t like.

  13. Submitted by Richard Schulze on 07/01/2010 - 12:32 pm.

    //Tenther, someone who believes the Federal government is mostly illegal because it usurps rights which belong to the States, in violation of the 10th Amendment.//

    We believe the facts our politics tell us to believe. How many people can critically consider any technical matter? Nowadays, you can almost certainly find some allegedly authoritative voice saying just about anything, no matter how ridiculous.

  14. Submitted by Ray Schoch on 07/01/2010 - 12:57 pm.

    I should add an amendment (!!) to my earlier comment, and it’s this…

    “Tentherism” may not, in fact, ALWAYS be a matter of political expediency. It seems quite possible to me that people like Michele Bachmann and Tom Emmer, in addition to seeing political advantage to quoting the 10th Amendment, might also be sincere in their belief that the amendment has been overlooked in terms of limiting the federal government’s power. In that context, and assuming that I’m correct about there sincerity, they provide a nice demonstration of how sincerity of belief bears little relation to the truth.

    In other words, political expediency aside, and giving those on the right the benefit of the doubt in regard to the sincerity of their view of the 10th Amendment, it also seems a good possibility that they’re simply WRONG in their interpretation of what the amendment means.

    While I’d favor that slant on the issue, it’s not up to me, either.

    Interpretation of the Constitution has, historically, not been the purview of ordinary citizens, or congressional representatives, whether liberal or “conservative,” nor is it something for which candidates for state governor are listened to closely. Since the days of Marbury v. Madison, it’s the Supreme Court that has taken on that role, and for nearly two centuries, judicial review by the Court has been an accepted (not always cheerfully) part of our political and cultural landscape.

    As far as I know, the Supreme Court has not issued an interpretation that’s in line with either Mrs. Bachmann’s or Mr. Emmer’s viewpoint regarding Amendment number 10.

  15. Submitted by Rich Crose on 07/01/2010 - 01:03 pm.

    Reading the tenth I would have to say that the Federal Government would not be able to call the National Guard into overseas duty.

    The National Guard used to belong to the states. Not anymore. Since early 20th century it is a branch of the Federal Government.

  16. Submitted by Stephan Flister on 07/01/2010 - 01:21 pm.

    Confirmation bias

    http://en.wikipedia.org/wiki/Confirmation_bias#Biased_search_for_information

    Soon to be known as the Bachmann-Emmer effect

  17. Anonymous Submitted by Anonymous on 07/01/2010 - 01:30 pm.

    Tentherism and its inconsistencies are in line with the conservative movement: They have no real values outside of anti-pluralism and private enterprise, as explained in the book White Protestant Nation. Everything else is just window dressing, given the two overriding values don’t produce an electoral majority. Values outside those two are fungible to conservatives and hypocrisy is the inevitable outcome.

  18. Submitted by Greg Kapphahn on 07/01/2010 - 01:43 pm.

    The “tenthers” and their cohorts of all kinds, take their approach to the constitution directly from the approach their religious leaders take to the Bible.

    It’s called “proof texting.”

    Rather than taking entire sections of the Bible as a whole and letting the historical context in which particular passages were written as well as taking into account the problems those writers were inspired to address in their writings, then letting the overall truth which that approach reveals for its own time allow us to extrapolate parallel, but not often identical, “truths” for our own time,…

    they begin with their own set of ideas and ideals which they unjustifiably consider to be absolutely true (all evidence to the contrary notwithstanding), then search for isolated verses, phrases, sometimes even single words that can be linked together to support what they already believe, thereafter proclaiming that what they postulate as true MUST be so, and must be the will of the Almighty because it’s in the “Bible” (the totality of which they are often quite willfully ignorant)!

    It is their only approach to scripture and respects neither God nor Jesus the Christ, nor God’s abiding presence and action in the world in our own day.

    In carrying this approach to the constitution, they take the same approach as they do to the Bible, starting not with seeking to understand what the constitutions of the United States of American and individual states might actually say, nor with what can be gleaned from writings of the authors of those documents about the intentions which lie beneath the compromises they inevitably contain, but rather, with their own ideas and ideals, seeking only to locate individual clauses, phrases, even words which they can then string together to claim that what they believe is “constitutional” and what all others might believe cannot possibly be so.

    Taking such an approach, while claiming the foundational documents of our states and nation as their source, demonstrates a complete lack of respect for those foundational documents and amounts to urinating on the graves of those who gave their best efforts as they struggled together to create them.

  19. Submitted by Ross Williams on 07/01/2010 - 03:59 pm.

    “Tentherism and its inconsistencies are in line with the conservative movement: ”

    They are in line with ALL American political movements. The only time we worry about the constitution is when we are losing the political debate. To some extent, that is working as designed.

  20. Submitted by John E Iacono on 07/01/2010 - 04:09 pm.

    So, if I get the tenor of EB’s post and most of the comments,

    The Tenth Amendment has NO meaning, can as a matter of fact, NEVER be invoked, because somehow the commerce clause renders it inoperable.

    Have I got it right? And if not, what — praytell — CAN it limit, since there in reality NO powers reserved to the states, or to the people?

    WHAT could the founders have been thinking?

  21. Submitted by Jim Camery on 07/01/2010 - 04:48 pm.

    Mr. Iacono,

    “…has NO meaning, can as a matter of fact, NEVER be invoked…” – Your getting closer. It really doesn’t have any meaning in the context of the 9th Amendment and the Commerce clause (I.8.3). It was put in to mollify some regionalists so they could feel like they got a little victory.

  22. Submitted by Dan Hintz on 07/01/2010 - 05:05 pm.

    I am always puzzled by discussions of constitutional law that act as if constitutional questions are all theoretical and occur in a vacuum. We have a Supreme Court that has been answering these questions for the last 220 years. The income tax is constitutional because the court has said it is. Federal laws based on the Commerce Clause are constitutional because the court says they are, while laws the court has rejected are not constitutional for the same reason.

    To make the kind of arguments that Emmer and Bachmann are making, you have to ignore the (constitutionally created) Supreme Court and its 220 year history of interpreting constitutional questions.

  23. Submitted by Ross Williams on 07/01/2010 - 06:03 pm.

    “what — praytell — CAN it limit..?”

    I suspect if the Congress passed a law giving the President authority to appoint the states’ governors, judges etc that you would see the 10th amendment invoked. Likewise if it attempted to require federal approval of their budgets. Or gave themselves veto power over every local statute.

    We are so used to a decentralized government that we take if for granted. The founders did not. All of those powers and many more had typically been vested in the central government in Britain.

  24. Submitted by mary mcleod on 07/02/2010 - 12:42 am.

    The Tenthers also revere the founding fathers, except the ones they don’t. Texas tried to omit the brilliant Thomas Jefferson from state textbooks, presumably because he was a Unitarian, and not a fundamenetalist Christian. At least they’re consistent in their inconsistency. The cherry-picking goes on and on, loving deficits while Bush was doing the spending and vilifying Obama for spending funds necessary to jump-start the economy Bush wrecked. Or opposing any national health insurance plan, “but keep your hands off my Medicare!”

    These are the people without principle who could again be governing this country, if we don’t WAKE UP. Can we risk that?

  25. Submitted by John E Iacono on 07/02/2010 - 10:07 am.

    Thanks, Ross, for those suggested examples.

    Any where a right reserved to the PEOPLE come to mind?

  26. Submitted by Colin Lee on 07/02/2010 - 10:09 am.

    So does it make me a Supremacist to say I “believe” in the Supremacy clause of our Constitution’s Article VI, Clause 2?

    The Supremacy Clause:
    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    The Tenth Amendment was written to limit executive agencies to only the powers which Congress explicitly authorized. It was NOT written to invalidate laws written by Congress! So does it make me a Supremacist to say I “believe” in the Supremacy clause of our Constitution’s Article VI, Clause 2? No, it makes me a better Constitutionalist than a Tenther.

    The Supremacy Clause:
    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    It clearly appears that the Tenth Amendment was written to limit executive agencies to only the powers which Congress explicitly authorized. It was NOT written to invalidate laws written by Congress!

    If you have a problem with Congress, you should do everything you can to make sure that your representatives represent you and not big money special interests.

  27. Submitted by John E Iacono on 07/02/2010 - 11:42 am.

    It would appear that the absolutist comments about the tenth amendment are not quite so absolute as some suggest. Since the tenth amendment only clarifies that the federal government may not assume powers not granted to it in the consitution, reference must be made to the powers conferred upon it by Article One.

    See Findlaw text below.

    “The Court’s 1992 decision in New York v. United States, 65 may portend a more direct retreat from Garcia. The holding in New York, that Congress may not ”commandeer” state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum 66 and in no way inconsistent with the holding in Garcia. Language in the opinion, however, sounds more reminiscent of National League of Cities than of Garcia. First, the Court’s opinion by Justice O’Connor declares that it makes no difference whether federalism constraints derive from limitations inherent in the Tenth Amendment, or instead from the absence of power delegated to Congress under Article I; ”the Tenth Amendment thus directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power.” 67 Second, the Court, without reference to Garcia, thoroughly repudiated Garcia’s ”structural” approach requiring states to look primarily to the political processes for protection. In rejecting arguments that New York’s sovereignty could not have been infringed because its representatives had participated in developing the compromise legislation and had consented to its enactment, the Court declared that ”[t]he Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals.” Consequently, ”State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.” 68 The stage appears to be set, therefore, for some relaxation of Garcia’s obstacles to federalism-based challenges to legislation enacted pursuant to the commerce power”

    http://caselaw.lp.findlaw.com/data/constitution/amendment10/

  28. Submitted by Glenn Mesaros on 07/02/2010 - 01:49 pm.

    The issue of federalism was decided in the Federalist Papers, written by Alexander Hamilton, long before the Supreme Court ruled on the “interstate commerce” clause.

    Facts of the Case:
    In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax.

    Question:
    The case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?

    Conclusion:
    In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, “the constitution and the laws made in pursuance thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them.”

    http://www.oyez.org/cases/1792-1850/1819/1819_0/

  29. Submitted by Paul Brandon on 07/03/2010 - 12:24 pm.

    So, are they called ‘tenthers’ because they only accept one tenth of the Constitution?

  30. Submitted by John E Iacono on 07/05/2010 - 10:30 am.

    Glen:

    Since the Federalist papers were written during the time the Constitution was being considered by the states, and the Bill of Rights (the first ten amendments) was not yet under consideration, it seems highly unlikely that “the issue of federalism was DECIDED in the federalist papers”.

    Additionally, since the three authors of the papers did not even constitute a quorum in the constitutional convention I find it problematice that those authors could DECIDE anything at all regarding the Constitution or its subsequent amendments. What they did was present ARGUMENTS in favor of the proposed constitution, in the course of which they attempted to clarify its meaning and intent. We use their presentation for enlightenment as to the thinking of the convention, but they DECIDE nothing.

    Since you do not specify the location you cite in the federalis papers, I suspect you may refer to Madison’s comments in #44, where he defends the PARTIAL enumeration of the powers delegated to the federal government. And I cite:

    “The truth is, that this ultimate redress may be more confided in against the unconstitutional acts of the federal than of the State Legislatures, for this plain reason, that every such act of the former, will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of foederal representatives.”

    While this suggests one way the states may challenge unconstitutional acts by the federal government, it does NOT preclude them or the poeple from appeal the the Supreme Court.

    If you are referring to some other section, I would appreciate the citation. And I note again, the Federalist Papers were presenting arguments in favor of the constitution, NOT describing an exhaustive or definitive delineation of it.

    And finally, I must wonder how the case you present, from decades after the writing and approval of the constitution and the ten amendments, and dealing with what a STATE may do (in an issue specifically addressed in the Constitution) and not what the FEDERAL government may do has any relevance whatsoever except to point out that in a specific situation a federal action dealing with interstate commerce the court agreed that the state could not tax it.

  31. Submitted by Julie Mercer on 07/05/2010 - 11:43 am.

    Eric–The article highlights areas of concern regarding government overreach that has reached unsustainable proportions and your accusatory approach in questioning Rep. Bachmann about it is unhelpful. Instead of questioning her motives by “gotcha” type questions, you could become part of the solution by trying to understanding how we got here, and what we all can do about it. Very few of us “Tenthers” are unaware of all of the areas our federal government has overreached and we also know reform will not be easy but will require the cooperation of responsible citizens to correct. In order for true reform to take place, we will all have to be willing to make sacrifices and change what we expect from our governments. If there were ever a time when people understand this, it is now.

  32. Submitted by Eric Black on 07/05/2010 - 11:37 pm.

    Hi Julie, welcome aboard.
    I try to maintain a civil tone and regret if I came across as overly accusatory. I do think that if Rep. Bachmann, who is a member of Congress, an attorney, and who describes herself as a Constitutional conservative is going to make statements about federal actions that exceeded the enumerated powers of Congress, she should work out a coherent doctrine of what fidelity to the 10th Amendment requires. Otherwise, as I said in my piece, 10th amendment objections sound like little more than talking points to object constitutional grounds to programs that someone doesn’t like anyway.

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