Tentherism takes several forms, ranging from a conservative talking point to threats of nullification and ultimately secession. Yes, secession.
If you think the civil war talk is crazy, did you notice that a sitting congressman, who is a candidate for governor of Tennessee, said last week that he hoped the next couple of election cycles would come out right “so that states are not forced to consider separation from this government?”
Hard to take that as anything less than an assertion that states have a right to secede and that if things keep going the way they are going, some states might exercise that right.
Monday that Tennessee guv candidate, U.S. Rep. Zach Wamp, said that if he is elected Tennessee will not secede from the union, although there was no takeback of the assertion that it could.
Zach Wamp, meet Thomas Jefferson.
Americans as important as Thomas Jefferson have strayed down this path. Jefferson, the author of the 1798-99 Kentucky resolutions that arose from the crisis over the Alien and Sedition Acts, put a threat of secession into one draft of the Kentucky resolutions. It came out before that draft was submitted to the Kentucky Legislature, but that draft did contain an assertion that states have the right to reject federal laws that the state thinks overstep the proper limits of federal authority.
Tom Jefferson, meet Tom Emmer.
Tom Emmer, the Republican endorsee for governor of Minnesota, has sponsored two bills asserting the right of Minnesota to reject federal laws and mandates from applying here, especially if Minnesota believes the feds have overstepped their authority under the Constitution and under the 10th Amendment.
The more I obsess on it, the more convinced I am that Tentherism is the key to the biggest ideological divide in American political culture. It takes the perpetual argument about how big the government should be and how much it should do, and attaches to the adoration of the founders and the framers and the belief in the Constitution as our secular/sacred text. For Minnesotans, understanding Tentherism is also vital to understanding Bachmannism and Emmerism.
If you’ve read the previous entries in Taking Tentherism Seriously, feel free to skip down to the subhead “new stuff starts here.” If you could benefit from a recap:
Tentherism is a term for small (federal) government conservatism. The 10th Amendment to the U.S. Constitution limits the powers of the federal government to those delegated by the Constitution itself. The explicitly enumerated areas in which Congress is empowered to legislate are really very few — really, very, few — mostly enumerated in Article I, Section 8. Tenthers at least claim to take the list very seriously and argue that a great many things that the feds do — at least when they are done under Democrats — exceed the constitutional powers of the Congress.
Michele Bachmann, who now consistently uses the term “Constitutional conservative” to describe herself, has said that the Obama health care bill is unconstitutional because the Constitution doesn’t empower Congress to take over the health care system. She’s right, at least in the sense that health care is not mentioned in the Constitution. So a strict 10th Amendment constructionist would say that the feds have no business doing anything in the field of health care. Rep. Bachmann has so far been unwilling to answer repeated questions about whether pre-Obama health federal care programs — Medicare for example — are likewise unconstitutional.
Emmer has sponsored a bill that would empower Minnesota officials (the governor and the leaders of the two houses of the Legislature) to each independently decide whether new federal laws and mandates exceed the constitutional power of Congress. If any one of the three thinks the feds have overreached, the mandate is blocked by them from application in Minnesota. Emmer, who is an attorney (as is Bachmann), told me that he doesn’t know whether such a state law is constitutional, but he is so frustrated by the growth of federal power that he is very motivated to push back and at least “have the conversation.”
So, begging your indulgence in advance, I will, as I had previously threatened, obsess on taking Tentherism seriously and seeking to understand it in its historical and constitutional contexts. The historical context is especially important because of another important tenet of 21st century American conservatism, namely the belief that the words in the U.S. Constitution must be understood the way they were originally understood, meaning by those who wrote them or otherwise participated in the event of their framing and ratification. You could call this “Scalia-ism.”
So, with apologies for the long-winded recap, we are exploring the original understanding of the 10th Amendment itself. In the previous piece in this occasional series, I told the tale of the Alien and Sedition Acts, adopted in 1798 — when many of the participants in the framing and ratification of the Constitution were serving in Congress. These laws — under which newspapers were closed and their editors jailed for the crime of criticizing the government — blatantly violated the First Amendment guarantees of freedom of speech and press. In short, the Federalists in 1798 exercised powers they should not have possessed under any reasonable reading of the Constitution, an awkward fact for those who would like to believe that the original understanding of the 10th Amendment was a serious and literal limitation on what the feds could do.
The next installment is potentially a happier tale for the righty view, although it has its problems.
The new stuff starts here
Two very big names from the founding and framing generation — Jefferson and James Madison — certainly did feel that the Alien and Sedition Acts were unconstitutional, and featured the 10th Amendment prominently in their arguments along those lines.
They expressed those views in what became known as the Virginia and Kentucky Resolutions. The documents were written anonymously. Jefferson, who was vice president of the United States at the time and was running for president against the incumbent, John Adams, acknowledged years later that he wrote the two resolutions adopted by the Kentucky Legislature in 1798 and ’99. Madison drafted the one adopted by Virginia in ’98.
In the resolutions, they denounced the Alien and Sedition Acts as an assertion of federal authority beyond the boundaries of the Constitution’s delegation of powers.
The Jefferson-drafted Kentucky resolutions specified that the Constitution authorized the federal government to make criminal law in only a few areas, specifically treason, counterfeiting, piracy on the high seas, and offenses against the law of nations. The government is not authorized to deal with any other categories of criminal activity. (If we took Tentherism this far, we would not have federal criminal laws nor law enforcement agencies dealing with drugs, for example.)
Furthermore, Jefferson noted. In the Kentucky Resolution:
“One of the amendments to the Constitution having also declared, that ‘the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.”
This is the part of the story that should be heartening to modern day Tenthers. Jefferson is certainly one of the demigods of the founding era, although he did not play a role in the drafting of the Constitution.
Father of the Constitution
Madison, while a slightly less celebrated member of the founding generation, is justifiably known as the “Father of the Constitution.” Not only did he play a leading role in the organizing of the 1787 Constitutional Convention, he took the most active role in the drafting itself and kept the notes that are the greatest guide to the Philadelphia proceedings. His work extended to authorship (also anonymously) of many of the famed Federalist Papers, which signified the key role that he played right through the campaign for ratification of the Constitution.
But wait, there’s more. As the leading member of the House of Representatives in First Congress, Madison drafted and pushed through the first 10 amendments, which have come to be known unofficially as the Bill of Rights. The last of these was, of course, Amendment 10, stating that the federal government possessed only those powers delegated to it.
No one , not even the Father of the Constitution, gets to be the single authoritative guide to the “original understanding” of the provisions in the charter. It’s too complicated for that. But if anyone did, it would be Madison. So if Tenthers have Madison on their side of the argument about the correct meaning of the 10th, it’s a big deal.
In that context I have to note a couple of inconvenient facts for the Tenthers who use of Madison as their champion. Tentherism and the 10th are deeply rooted in states’ rights. Madison, during the drafting of the Constitution, felt very, very strongly that the federal government should have veto power over any and all state laws. This is kinda the opposite of what Emmer is proposing, which would sort of give states the power to block federal laws.
In the end, though, no such power was adopted, so the point is relevant only to understanding that Madison, in 1787, was actually an advocate of a more powerful federal government. Small government conservatives, who like to portray the framers as likewise small-government conservative, tend to get this bit backward. The framers, including Madison, came together in Philadelphia in 1787 to create a much more power federal government than the one that they already had under the Articles of Confederation. And they did. The idea that the framers were fearful of federal power is roughly backward, but you nonetheless hear it all the time.
Secondly, Tenthers should tread carefully around the claim of Madison as the champion of their favorite amendment. At the Philadelphia Convention, Madison opposed the idea of a Bill of Rights being added to the Constitution, including the idea of a statement that the federal government had only those rights delegated. He ended up being the chief author of the Bill of Rights, but only as a result of a political compromise to ensure ratification of the Constitution. He was less than enthusiastic about the deal.
Nonetheless, the 10th Amendment was in place in 1798. The Alien and Sedition Acts (unconstitutional in soooo many ways) were nonetheless adopted. And Jefferson and Madison denounced the bills, citing the 10th in the same way that Bachmann cites it today against ObamaCare.
But there are a couple of other problems. One, as I mentioned above, Jefferson flirted with secessionism when drafting the Kentucky resolutions and he did cross the line into nullificationism.
Nullificationism (a word I just made up, so far as a I know) refers to the argument that states nullify federal statutes. Here, from Jefferson’s second Kentucky resolution, is the grandiloquent summary of the above-summarized principle:
“If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence:
“That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers:
“That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy:
“That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal:
“That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact.”
To summarize, in case you had any trouble with the language, Jefferson argues that the states entered the constitutional scheme with the understanding that they had made a limited and specific grant of power to the feds, and as long as the feds stay within the limits of its delegated authority, the states will submit to federal authority. But if the feds appoint themselves as the arbiters of the limits of federal authority, then state governments will disappear into one general despotic federal government over the whole country.
Perhaps, from the point of view of modern-day Tenthers, this is what has happened or is in increasing danger of happening.
But, knowing that I’ve gone on too long already, I’ll note two last things.
The arguments of 1798-99 were part of the colossal campaign of 1800. Jefferson’s party, then called the Democratic Republicans, succeeded in portraying the Federalist Party of John Adams as dangerously hungry for power and dangerously unwilling to respect the agreed upon division of state and federal responsibilities. They won the argument and they won the election with Jefferson becoming president and Madison his secretary of state and heir apparent. The Alien and Sedition Acts, which had been enacted as a temporary war (or quasi war) measure, expired.
And one last note. From where we stand today, we would assume that if Jefferson and Madison really believed that unconstitutional laws had been enacted, they would file a lawsuit and try to get the U.S. Supreme Court to strike down those laws.
They didn’t, for reasons that I hope to explore in a future post. And the same question arises for today’s Tenthers. If the Constitution is on your side, why not sue instead of raising from the scary past the idea of states deciding which federal laws they will obey?