Bachmann and Perry have a lot of constitutional explaining to do

Rep. Michele Bachmann
REUTERS/Brian C. Frank
Rep. Michele Bachmann

Michele Bachmann likes to call herself a “constitutional conservative.” As her campaign wears on, she owes the country a clearer understanding of precisely what this means. Now comes Texas Gov. Rick Perry, the new leader in the Repub nomination race polls, with a record of similar publicly-uttered impulses that seems to want to use the 10th Amendment of the U.S. Constitution to repeal most of the 20th century.

It’s not really new for “tenthers” like Bachmann and Perry to enlist the 10th Amendment as an argument against programs they dislike, although their tentherist utterances exceed similar impulses by yesterday’s righties.

Don’t get your hopes up, but wouldn’t it be great if this campaign, especially the Bachmann and Perry campaigns, led the country to face the fundamental question of tentherism?

For those of you coming late to the discussion, the Tenth Amendment, written by James Madison to fulfill a bargain even though he thought it unnecessary, 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.”

In a piece yesterday about Perry’s tentherism, NY Times reporter Manny Fernandez made a pretty serious mistake. He said, in his own voice, that the Tenth Amendment “reserves to the states the powers not explicitly given to the national government.”

If that word “explicitly” was in the 10th Amendment, this would probably be a very different country. But, as you can see from the full text of the amendment above, “explicitly” ain’t in there, although Bachmann and Perry proceed, selectively and erratically and without an honest discussion, as if it were.

Forget about Obamacare, the constitutionality of which is now before the courts. If the Congress has only those powers explicitly delegated by the words of the Constitution, then Medicare and Medicaid are unconstitutional. The Constitution never mentions health care nor insurance, let alone two vast nationalized programs to provide health insurance to the poor and the elderly.

A question
Somebody needs to ask Bachmann and Perry (I’ve tried, multiple times, with Bachmann, but she hasn’t responded) what provision of the Constitution explicitly authorized the creation of Medicare and Medicaid (and, for that matter, the Centers for Disease Control, the VA hospital system and everything else that the feds do in the field of public health)? If these programs are unconstitutional, why do they not explicitly seek their abolition?

By the way, throw in Social Security. The Constitution doesn’t mention public pensions nor social insurance or whatever category you want to put Social Security in. We’re saving some serious public dollars now.

Gov. Rick Perry
REUTERS/Jonathan Ernst
Gov. Rick Perry

Don’t stop there. The Constitution doesn’t explicitly authorize the federal government to maintain a vast network of permanent foreign military bases, doesn’t authorize the creation of the CIA, gives the federal government no explicit power to get into public education (Bachmann, I know, agrees with this one and favors an end to all federal education spending, but she hasn’t applied the same test to the military and intelligence budgets). Oh yeah, no mention of federal emergency assistance or disaster relief from floods, earthquakes, hurricanes, tornadoes.

So, how does the federal government get away doing all these things that are not explicitly authorized? Well, for starters, the 10th amendment doesn’t say “explicitly,” although Bachmann and Perry seem to think that “explicitly” is implicitly in there.

The Constitution explicitly gives Congress the power to tax and spend. It provides federal authority to regulate interstate commerce (the need for such a power was the biggest single reason that the Constitutional Convention was called). It admonishes Congress to “promote the general welfare.” In the famous “elastic clause,” the Constitution gives Congress the “Power – To make all Laws which shall be necessary and proper for carrying into Execution” all of the powers “vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

On the military stuff, the Constitution authorizes the national government to “provide for the common defence,” empowers Congress to create an army and a navy (no mention of an Air Force nor any Marines), appoints the president as commander in chief of the armed forces, and…

Who decides?
Well, you probably have the idea by now. There are a number of words and phrases in the Constitution that are not very explicit. Perhaps “promoting the general welfare” implies Social Security and Medicare. But if Bachmann and Perry want to go there, how can they make a principled objection if someone else believes that the general welfare promotion or the regulation of interstate commerce implies some other program that they don’t like.

And who’s to decide the limits of these implied powers? Well the Supreme Court, of course, with its power to decide the constitutionality of acts of Congress. Except for one thing. The Constitution nowhere explicitly grants the Supreme Court any such power.


So here’s hoping that at the next debate (which will be the first one featuring Perry and Bachmann together) that the question is asked:

“Do you believe that the Constitution gave Congress the power to create Social Security and Medicare, and if so, where in the Constitution do you find this power, and if not, what do you propose to do about it?”

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Comments (55)

  1. Submitted by Neal Rovick on 08/30/2011 - 11:25 am.

    The sad fact is that there are few in the media with the access and tenacity to follow the politician’s statements to their logical end.

    For instance, when Bachmann said don’t ever raise the debt ceiling again, did anyone in the media ask her what she thought America would look like 6 months or a year after that decision was made?

    No, it was presented as one of a possible range of responses without analysis or follow-up.

    Or how about the $2.00/gallon gasoline promise?

    Or how about getting the economy on it’s feet in 2 months promise?

    Or how about Bachmann’s “kidding” about God and how the hurricane and earthquake are signs from God? Did anyone ask her how that comment was any different than the Westboro Baptist (“God hates gays”) reasoning about the cause of US soldier deaths in Iraq and Afghanistan? Or is it all the dogwhistle that the press will continue to ignore and not hear?

    It’s not a game anymore. It’s not just about attention-grabbing headlines. It’s not a tennis game with back and forth. It’s about seriously delusional people who are going to drive this country over a cliff if they achieve power.

  2. Submitted by Richard Dahlseid on 08/30/2011 - 11:36 am.

    Bachmann & Perry are both “Loud Mouth” Pols who
    seem to believe that slick Bumper Sticker Slogans and mis-information is the best way to
    the White House. It is truly amazing what comes
    out of their mouths. Just rile up the Base and
    see who can be the most outrageous is the way
    to go. Even Rush Limbaugh isn’t this crazy.
    Bachmann claims to have saved Minnesota’s schools when she was in the Legislature. Too bad she didn’t take a few classes.
    Now she is advocating Oil Drilling in the Everglades. But only if it is safe to do so after she has abolished the EPA. She will rely on “EXPERTS” to determine the safety of that drilling. Maybe BP will be available. How about we drill for oil in Lake Minnetonka or Lake Of The Woods?

  3. Submitted by Paul Brandon on 08/30/2011 - 11:48 am.

    Since when have demagogues ever worried about consistency?

  4. Submitted by Peder DeFor on 08/30/2011 - 12:34 pm.

    “…nor prohibited by the states…” Doesn’t that suggest that the states should be able to reject Federal directives? Isn’t that what Perry tried to do in Texas in regard to Medicare? (If I’ve got that wrong, someone please correct me.)

    Neal #1, I’m certainly not going to defend everything that Bachmann has said but she pretty clearly was joking about the hurricane and earthquake. If you’ve watched the video, it couldn’t be clearer. She’s laughing and so is the crowd.
    And our current President said that this would be time that the waters would stop rising. Which seems a much more grandiose deal than $2 gas. He also promised a ‘net spending cut’ and well, we all know how that has worked out. Are you willing to hold his feet to the fire too?

  5. Submitted by Ray Schoch on 08/30/2011 - 01:10 pm.

    Nicely done, Eric, and the commentators, at least the first 3 that I’ve read, are also on the mark.

    I’m not going to hold my breath because – the know-nothing demagoguery of Mrs. Bachmann and the Elmer Gantry faux-Christianity of Governor Perry aside – both of those people know that following their “Tenther” arguments out to their logical end wouldn’t just bring an end to Social Security and Medicare. There’s a far more important issue that neither one of them will lose sight of.

    That issue is: election.

    Were Bachmann and Perry to insist that “Tentherism” required a strict adherence to powers EXPLICITLY enumerated in the Constitution, a host of federal programs (as you’ve mentioned, civilian and military alike) would vanish, and when those programs are genuinely threatened with destruction, the chances of either Mrs. Bachmann or Governor Perry ever holding a significant public office again will be similarly destroyed. While “reform” of Social Security and Medicare may no longer be quite the political “third rail” that it used to be, threatening to do away with one or both of them will bring out millions of old people who actually vote, and they will vote against the candidate who wants to do away with those programs.

    Thinking in terms of long-term consequences is not a Bachmann or Perry strong suit. Nor are long-term consequences, by the way, something that Tom Emmer and his political allies in the recent Governor’s and legislative races appear to have thought much about. School districts and cities that are now trying to figure out how to borrow enough money to stay afloat would be in far deeper trouble, as would the state as a whole, were Mr. Emmer to have won the election.

    “Tenthers,” in practical terms, would repeal the 20th century first, and then, if their logic is followed to its end, they’d go a long way toward recreating the Articles of Confederation, a form of government that utterly and completely failed, and was the primary reason for the Constitutional Convention in the first place. They’d have Patrick Henry on their side – he never liked the Constitution, and spoke publicly against it – but the designers of the Constitution were not given to idle experimentation, and the Articles had proved themselves worthless as a governing structure.

    Numerous compromises are incorporated into the Constitution, but the concept of a strong central government is at its core. When southern states insisted on trying their own version of “Tentherism” a few decades later, 600,000 Americans were killed, and the question of whether the states or the federal government was supreme was settled at Appomattox Courthouse in April, 1865. That Governor Perry can imply that secession remains a viable option and still campaign for the presidency of the country he threatens to secede from – without being laughed out of every venue larger than a basement recreation room – is a testament to the near-criminal ineptitude with which lunatic campaigns from the right are being treated by the mainstream media.

    Mrs. Bachmann remains an embarrassment to Minnesotans, just as Governor Perry should be an embarrassment to thoughtful Texans.

  6. Submitted by Paul Landskroener on 08/30/2011 - 01:14 pm.

    This isn’t a game of gotcha or catching anyone in a technical inconsistency; it goes fundamentally to what they see the role of the national government to be. If Perry and Bachmann mean what they say about what they think the Constitution permits and doesn’t permit, they must answer the questions Eric poses and take the consequences.

    (It would also be fun to ask where the Constitution permits creation of an air force? It refers to an army and navy.)

  7. Submitted by David McCormick on 08/30/2011 - 01:20 pm.

    One other little problem. Supremacy Clause of the US Constitution.

  8. Submitted by Ross Williams on 08/30/2011 - 01:33 pm.

    Since when did we require logical consistency from our politicians and elected representatives. We don’t. And there is nothing in the constitution that requires it …

    Its time to stop addressing silly legalistic, ideological and theological arguments and start talking about the pragmatic results of what they propose.

    What would the result be if the federal government got out of the education business entirely? I don’t think they would be catastrophic. But there would be serious consequences and those ought to be discussed.

    The real question is not whether the federal government can act to improve educational opportunities for people, but whether it should. I think most of us would say it should.

  9. Submitted by Dennis Tester on 08/30/2011 - 02:28 pm.

    Let’s remember that the opposite of the “tenthers” are people like Amy Klobuchar who want to make everything in society covered under federal law.

    The 10th Amendment is relevant to the republican candidates’ platforms, but not in the frivolous ways you’ve outlined. They include real issues such as:

    1. Since K-12 education is a part of each state’s constitution, do we really want or need a federal department of education?

    2. Since each state sets its own rules for health insurance and regulates the insurance industry within its borders, do we really want or need a national health insurance system? This affects Medicare and Medicaid, for example, which might be better managed via block grants to each state as opposed to being managed at the federal level (if the politicians insist on being involved somehow).

    3. Abortion. As much as the pro-abortion folks fear that the republicans want to ban abortions, the most common desire is to simply move the decision back to the states where it was prior to Roe v. Wade. Let each state decide.

    4. Same sex marriage would be handled the same way … as it is now … where each state historically licenses and regulates who can get married.

    Not as fun or controversial as debating whether we should allow people to opt out of the Ponzi scheme we call Social Security, but it’ll have to do until we have a press that can deal with these issues as responsible, nonpartisan journalists.

  10. Submitted by John Bristow on 08/30/2011 - 02:44 pm.

    Love it. So often these those who shout about there version of the Constitution get quoted without comment. The average person has little idea what is actually in the constitution and is vulnerable to the nonsense being spouted. That people might actually reading the document is what these people most fear.

  11. Submitted by Kurt Nelson on 08/30/2011 - 02:53 pm.

    The EPA does not regulate oil drilling leases, the Department of Interior does that task, but this fact is lost Bachmann (no surprise there).

    There was a very interesting symposium at SCOTUSblog recently on the constitutionality of the Health Care Act. One submission, by Professor Schwinn detailed the history of the 10th and how it is as the Court said “the 10th is but a truism”.

    This is obviously antithetical to the tenthers out there, but history, the text of the 10th, and Court precedence says otherwise.

    Bachmann and Perry and all the other believers in the supremacy of the 10th will froth at the mouth and continue to insist states rights trump federal, but they will continue to be wrong.

  12. Submitted by Neal Rovick on 08/30/2011 - 03:06 pm.

    Well, Peder, I’m not exactly sure what was funny about anything about the situation. Dozens dead, billions of dollars of damage, millions with power outages?

    By the way, what exactly is the difference between Bachmann’s “joke” and the attributions of God’s punishment by Westboro Baptist? Or Hagee speaking of Katrina? Or Robertson on Haiti?

  13. Submitted by John Edwards on 08/30/2011 - 03:13 pm.

    Good points all. But I think everyone has overlooked the most important case. As Justice Blackmun demonstrated in 1973, if you can find a right to abortion in the constitution, you can find a right to do anything.

  14. Submitted by Mark Stromseth on 08/30/2011 - 03:40 pm.

    “Do you believe that the Constitution gave Congress the power to create Social Security and Medicare, and if so, where in the Constitution do you find this power, and if not, what do you propose to do about it?”

    Given Shelley’s propensity for being a dim bulb, incapable of critical thinking and analysis, such difficult questions would cause an endless loop; we’d soon see smoke coming out of her ears, right before her head explodes.

  15. Submitted by Richard Dahlseid on 08/30/2011 - 03:53 pm.


    Spot on. Bachmann is an embarrassment to real
    Minnesotans. I am hard pressed to find any other politician in Minnesota’s history who
    violates “Minnesota Nice” or mis-represents facts/truth more than she does. But then, having been born in Iowa says it all. It is a well known fact that Iowans all want to be Minnesotans a “Birther”?

  16. Submitted by Dennis Tester on 08/30/2011 - 04:10 pm.

    Ms. Bachmann would tell you, Mark, that Social Security and Medicare would be ruled constitutional by SCOTUS simply because congress has the power to tax, and those programs are supported by designated taxes.

    The problem conservatives have with social security is that it’s mandatory. Setting aside whether or not it’s the proper role of government to operate a retirement plan (most would say it isn’t), the least they could do would be to create a system that wasn’t required and wasn’t based on the same Ponzi scheme model for which people like Bernie Madoff is sitting in prison.

  17. Submitted by Bernice Vetsch on 08/30/2011 - 04:50 pm.

    Peder (#3) — The tenth amendment doesn’t actually say “not prohibited BY the states,” but rather, “not prohbited BY IT [the Constitution) to the states.”

    So even though it doesn’t give states the right to reject federal legislation, the Tenthers like to act as if it did.

  18. Submitted by will lynott on 08/30/2011 - 06:42 pm.

    #4, Bachman wasn’t joking and everybody knows it but you. Meditate on the concept “laughing in disbelief.”

    Okay, do you get it now?

  19. Submitted by Jon Kingstad on 08/30/2011 - 06:43 pm.

    No offense to you, Eric, because you’re only bringing this up because other, very silly, ignorant demagogues insist on bringing up fake issues like this.

    The last Tenth Amendment decision by the Supreme Court before the Rehnquist cort decided gun control was something that couldn’t be handled by the state was the Agricultural Adjustment Act in U.S. v. Butler decided in 1936. That case, interestingly was a challenge to a tax on food processors to adjust the price of commodities. The legislation bears some resemblance to the Affordable Health Care Act in certain important ways. Here is the “money quote” from the previous Justice Roberts (who later switched his vote to avoid the Roosevelt court packing plan):

    “The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end.

    “From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. 18 The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden. salient respects.”

    Butler has never been expressly overruled, just whittled way to the point of virtual nothingness. But is is precedent for what the tenthers say they want to do. To go back to pre-1940’s Supreme Court decisions to make a point about what? If US v. Butler were restored as legitimate precedent, Social Security, ERISA, and a whole lot of the US Code would have to go. New Deal legislation accommodated by practical, thinking men in high places enabled this country to become the nation we know today. What would become of a nation hobbled by a cramped, 19th or 18th century view of its powers to deal with the “general welfare”? The US is already well along the road to becoming a banana republic. To restore the policy and reasoning of a US v. Butler to legitimacy would make it all official.

  20. Submitted by Paul Udstrand on 08/30/2011 - 07:02 pm.

    //Let’s remember that the opposite of the “tenthers” are people like Amy Klobuchar who want to make everything in society covered under federal law.

    Not to be picky Dennis but I’m pretty sure you meant to say “pretend” instead of “remember”, that way the sentence actually makes some sense.

  21. Submitted by Paul Udstrand on 08/30/2011 - 07:03 pm.

    //that seems to want to use the 10th Amendment of the U.S. Constitution to repeal most of the 20th century.

    Att’s what I been saying.

  22. Submitted by Ray Schoch on 08/30/2011 - 07:09 pm.

    I disagree, Mr. Tester. The problem with Social Security (and with Medicare, as well), as expressed by a good many conservative writers, is that it implies a certain degree of community – of the collective – suggesting that we have some small degree of obligation to each other as humans and as members of the same society, as opposed to the childish selfishness of Ayn Rand and others who disingenuously call themselves “conservative.”

    As a society, we have plenty of evidence of what happens when private interests run retirement plans (they sometimes cancel them without warning or recourse) or health plans (profits come before health care). Rates for my former employer’s UnitedHealth family plan – I’m not a participant – went up $600 for the coming year, and Stephen Hemsley, UnitedHealth’s CEO, was paid $48.9 million last year. If he were paid “only” $1 million, the remainder would keep premiums the same for 80,000 families without affecting the ROI of a single shareholder.

    Perhaps most of the people you listen to would say it isn’t, but I’d say it’s perfectly reasonable to have the government administer both health care and retirement plans. They’ve shown, through Social Security and VA medical care, that they can administer large-scale programs for much less administrative cost than the private sector, and provide services as well or better than private companies. Let us know when you find a cabinet head – Health and Human Services, for example – who’s being paid $48.9 million as a government salary.

    Bernie Madoff is in prison because he’s a criminal who defrauded many a wealthy investor. Social Security does no such thing. Whining about it being required when you don’t like it is the tantrum of the 4-year-old being told it’s time to pick up his toys.

  23. Submitted by Hal Davis on 08/30/2011 - 07:21 pm.

    Kurt Nelson (#11) quotes the Supreme Court, “The 10th is but a truism.”

    It came in a case from what seems like a different Supreme Court era, a court chastened by FDR’s attempt to pack it so his New Deal would survive court scrutiny.

    This is from

    Facts of the Case:

    In 1938, Congress passed the Fair Labor Standards Act to regulate many aspects of employment including minimum wages, maximum weekly hours, and child labor. Corporations which engaged in interstate commerce or produced goods which were sold in other states were punished for violating the statute.


    Was the act a legitimate exercise of Congress’s power to regulate interstate commerce?


    The unanimous Court [Feb. 3, 1941] affirmed the right of Congress to exercise “to its utmost extent” the powers reserved for it in the Commerce Clause. Relying heavily on the Court’s decision in Gibbons v. Ogden (1824), Justice Stone argued that the “motive and purpose of a regulation of interstate commerce are matters for the legislative judgment . . . over which the courts are given no control.” Congress acted with proper authority in outlawing substandard labor conditions since they have a significant impact on interstate commerce.


    Decision: 8 votes for United States, 0 vote(s) against
    Legal provision: Fair Labor Standards Act; US Const. Art 1, Section 8

    The quote seems to be a paraphrase. This is from the opinion by MR. JUSTICE STONE [citations omitted]:

    ==Our conclusion is unaffected by the Tenth Amendment. which provides:

    “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.”

    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.

    The Act is sufficiently definite to meet constitutional demands. One who employs persons, without conforming to the prescribed wage and hour conditions, to work on goods which he ships or expects to ship across state lines is warned that he may be subject to the criminal penalties of the Act. No more is required.==

  24. Submitted by Bruce Pomerantz on 08/30/2011 - 08:15 pm.

    Would someone please explain what the phrase, “nor prohibited by it to the States” means? I have parsed it out several times and end up concluding it’s meaningless.

  25. Submitted by Mike Naas on 08/30/2011 - 08:20 pm.

    Thank goodness for Representative Bachmann and Gov. Rick Perry for their proper criticism of our over-reaching federal government that is spending the U.S. into destruction as a nation. Thank goodness for their boldness and leadership to challenge both the Republicans and Democrats who have corrupted our government with out-of-control spending for special interests …. that I and many others simply call corruption. Thank goodness for their interest in examining the 10th Amendment which provides for States rights, and appropriately limits our Federal Government. Never before has our Federal Government needed to be restricted more than right now. Thank goodness for our Constitution which guides the U.S. from becoming another tyrannical country. Thank goodness for any politician that is trying to get back to a more Constitutional justified government and questions the status quo that is failing us so miserably. Shame on any citizen and any politician who supports over spending and/or criticizes those leaders that are promoting limited government and lower spending to save the destruction of the U.S. as we know it. We all know that most Democrats/liberals can never have enough money to spend regardless of how bankrupt our government might be, but what is so disappointing is that most Republicans also seem to have lost their way into extreme over spending and corrupt special interest spending too. Thank you … thank you … thank you Representative Bachmann and Gov. Rick Perry. Please don’t stop what you are trying to accomplish. America desperately needs your leadership on limited Constitutional government and to inspire others to join your efforts and continue this desperate and necessary conservative movement.

    “The trouble with socialism is that eventually you run out of other people’s money.” Margaret Thatcher.

  26. Submitted by Joe Williams on 08/30/2011 - 10:09 pm.

    #25 Mike Naas

    Your post leave a lot to be desired in the way of original thought, but I would ask you to consider this:

    If someone tells a lie that you like, and you call it “boldness,” what do you call a lie that you don’t like?

    Your insinuation that our country is headed towards socialism makes me nauseous, because I am a proud American, and I reject your belief that we will are not now a great country, and that we need to be “returned” to another way of life.

  27. Submitted by Dennis Tester on 08/30/2011 - 10:12 pm.

    “The problem with Social Security (and with Medicare, as well), as expressed by a good many conservative writers, is that it implies a certain degree of community – of the collective – suggesting that we have some small degree of obligation to each other as humans and as members of the same society …”

    That’s all well and good, Ray, but a “community” mandated by force or coercion is also known as a prison.

    Liberals believe this nation is a giant collective, where the role of government is to decide who gets what. Conservatives have this old-fashioned belief that we live in a free society of individuals where the role of government is to protect our constitutional rights. Contrary to what your average government school kid has apparently been taught, “from each according to his ability to each according to his needs” wasn’t written by our founding fathers.

  28. Submitted by Richard Schulze on 08/30/2011 - 10:19 pm.

    If it weren’t for all the noise and bluster from Bachmann and Perry we could be enjoying a 3-way Romney – Huntsman – Pawlenty race right now. Are we really better off?

  29. Submitted by Patrick McManus on 08/30/2011 - 11:00 pm.


    The 10th Amendment says, “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.”

    You have to read, “nor prohibited…” in the place of, “not delegated to….” So, the 10th Amendment is actually saying, “The powers not delegated to the United States by the Constitution and the powers not prohibited by it (the Constitution) to the States, are reserved to the States respectively, or to the people.”

    Essentially, every power delegated (enumerated, listed, named) to the Federal government in the Constitution is the sole power of the Federal government.

    However, not to get too technical, some powers are co-extensive (the power to tax), and the federal government may waive its right to a power and allow the states to act (the Feds can always rescind that waiver).

  30. Submitted by Eric Black on 08/30/2011 - 11:06 pm.

    Thanks for a great thread.
    To Bruce Pomerantz’ question in #24, I think I can help.
    Art. 1, Sec. 10 of the U.S. Constitution lists several powers that are expressly prohibited to the states. For example, states can’t print their own currency and can’t make separate treaties with foreign nations.
    The reference in the 10th Amendment to powers prohibited by it to the states (“it” meaning the Constitution itself) refers to those powers and clarifies that those powers are not reserved to the states.

  31. Submitted by Roy Everson on 08/31/2011 - 04:03 am.

    Where does it say that the government can own a plane called Air Force One to haul the president around? I’d like to see the Obamas ride in a horse drawn carriage for a change, with soldiers in blue uniforms and handlebar mustaches, goatees and muskets and swords and shiny brass buttons guarding them on their horses. Call me an old fashioned Strict Constructionist or a newfangled constitutional conservative, if’n you may.

  32. Submitted by Peder DeFor on 08/31/2011 - 07:36 am.

    Ok, let’s take a look at this: “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.”

    Bernice #17, I did mistype it but I don’t think the meaning is changed. It looks like the word ‘it’ refers to the United States, not the Constitution. Which means that the states do have some power of resisting Federal laws. The tenth amendment has always been read as a declaration of state powers. Are you seriously suggesting that it simply means something Constitutional powers prohibited by the states? Do you read that as a reaffirmation of the amendment process or something?
    Dennis #9, no the Federal government can’t makes rules about everything. Abortion is off limits. Everything else, but not abortion.
    Will #18, I don’t know if you actually watched the video or not and frankly I don’t care. You’ve already cast her as a devil and will treat her accordingly. So be it.

  33. Submitted by Peder DeFor on 08/31/2011 - 07:46 am.

    #12 Neal, I said that I won’t defend everything she said so I don’t want to be dragged too deeply into the woods here. Is it tasteless to joke when DC has an earthquake and a hurricane in quick succession? Even if the hurricane causes deaths elsewhere? I didn’t get the sense that she was going out of her way to make fun of the dead but your mileage may vary. You can look at it as reason #4002 why you won’t vote for her.
    If she wasn’t seriously saying that this was a Message From God, then, well, she wasn’t saying it was a Message From God. That makes it different from all of those that you listed.

  34. Submitted by Neal Rovick on 08/31/2011 - 07:52 am.

    (#25)…Thank goodness for Representative Bachmann and Gov. Rick Perry for their proper criticism of our over-reaching federal government….

    I think you are missing the elephant in the room. It is the corporate interests who are leading America into destruction. They are the over-reaching ones–simultaneously stacking the deck, stuffing their pockets, gouging with student loans and medical billings, preserving their tax breaks, and selling the government things like jet engines that are not needed or wanted.

    You and I are small peanuts in that circus. It is in the corporate interests to diminish our role, after all we have the votes, but they have the money.

    Do you think that the Constitution was written with the idea that corporations had as much political speech rights as an individual?

    You’re a fool if you think so.

    The Republicans have built their party on division. Racial division in the 60’s. Gender division later. Abortion after that. Religious division after that. And now age division with “Social Security as a Ponzi scheme” meme that is in play now.

    All to keep your eye from the real act in the center ring–the corporate takedown of America.

  35. Submitted by Dennis Tester on 08/31/2011 - 08:16 am.

    The real enemy of the Left and their party of big government, of course, is the people. The taxpayers. But they can’t say that of course so they’ve created this straw man called “corporate interests.”

    When Coke can fine me for drinking a Pepsi or Apple can put me in prision for buying a PC, you might have an argument.

  36. Submitted by Kurt Nelson on 08/31/2011 - 08:25 am.

    No matter how many times you type the words of the 10th, it is still a tautology. The amendment is impotent. Though it enjoyed two brief periods of Court approval, the most recent being just after much of the New Deal legislation, the 10th carries no weight with the Court.
    The most recent example of the 10th being rejected was last years Comstock case. The majority, including the Chief Justice rejected the Tenth Amendment argument. Even Alito and Kennedy wrote separately that the 10th is just a truism. Not surprisingly, Thomas and Scalia accepted the argument, but two voices does not make a majority.

  37. Submitted by Ray Schoch on 08/31/2011 - 09:05 am.

    Once again, Mr. Tester, you oversimplify.

    I don’t speak for “liberals” any more than you speak for “conservatives.” Your suggestion that liberals think of the country as a giant collective in the Marxian sense is laughable, nor do I agree that liberals necessarily think the role of government is to decide who gets what.

    However, even if I were to grant (and I specifically do not) your premise of “the government deciding who gets what,” the alternative you propose seems to be… what, exactly? Leaving it up to you? Me? George Soros? The Koch brothers? Like it or not, government has always, always influenced the distribution of whatever wealth, goods and services the society in question had under its control. The more relevant issue is the degree to which that influence benefits the society as a whole, or only certain select groups.

    There is not now, nor has there ever been in human history, the sort of “society of individuals” that you’d like to believe exists, or used to exist in some golden-tinged era of the past. People who traveled the Oregon and California Trails to the west by wagon train in the 19th century succeeded only when they cooperated. Those who insisted on going it alone generally didn’t survive the journey. The first thing Western settlers did when they arrived at whatever place they’d decided to settle was to establish a government. The second thing was to ask the federal government for help. The society you live in right now – the one with all the liberals who drive you to distraction – is the freest and most individualistic society the planet has likely seen since paleolithic times. It is more free and individualistic now than it was half a century ago in my youth.

    Finally, none of my students learned that “from each according to his ability, to each according to his needs” was written by the founding fathers. If you knew anything about schools, you’d know that. By the way, they’re not “government schools,” with the insinuation that they’re somehow controlled by a distant foreign power. They’re OUR schools. Nothing in American society is more locally-controlled than a local school district, of which we have somewhere in the neighborhood of 10,000 across the country. The federal government’s involvement in education has increased, it’s true, but it’s still pretty minor compared to the influence of state and local constituencies.

    And in the meantime, Mr. Perry and Mrs. Bachmann still don’t know what they’re talking about, constitutionally. That doesn’t bode well for either liberals OR conservatives.

  38. Submitted by Joe Schweigert on 08/31/2011 - 09:52 am.

    Don’t both sides use “straw men” as you say in order to give the debate focus? Corporate interests on the one side, big government on the other. Both sets of institutions are far too complex to be lumped together yet its a very effective way to make a simple talking point people can understand. Just don’t pretend that this use of rhetoric is at all one sided. The basic truth to all of this is that an economy based on individual freedom and self-interest has to go hand in hand with regulations and laws that promote oversight and equality.

  39. Submitted by Neal Rovick on 08/31/2011 - 10:11 am.

    Oh, Dennis, (#35)what can I say? Do you really think that the big money in the election cares one whit about social policy?

    It’s about the money–making money, keeping money, expanding markets, market domination, etc.

    The social policies and constitutional arguments are for riling up the rubes, because the rubes, not the corporations, still have the vote.

    And the politicians like Palin, Bachmann and Perry are very happy to be the barkers at the tents, because it satisfies their hot-house delusions.

    And you are happy to stay busy battling the enemies provided for you. Snort and huff about the Left and their godless socialism. But don’t pay attention to the real stakes.

  40. Submitted by Patrick McManus on 08/31/2011 - 10:40 am.


    No Neal, “it” refers to the Constitution, not the United States. “It” can only refer to the Constitution because the Constitution is the legal document that would have the force of law to prohibit powers. This is also not debated in the legal world, it’s extremely well understood and settled.

    The states do not have the final say over anything that the Federal government passes or performs. If the states did, then the states would be the final arbiters of the Constitution. Obviously, the Supreme Court of the United States is the final arbiter of the Constitution. This has been made clear through numerous precedents, going all the way back to Madison vs. Marbury and McCulloch v. Maryland. This is also way the states are not allowed to tax the Federal government. The power to tax is the power to destroy. Allowing the states to tax the Federal government would allow the states to hold the Federal government hostage at any time if the states (any one state actually) disagreed with the Federal government.

    Moreover, we have something called the Supremacy Clause. If a state law conflicts with Federal law, the Federal law wins every time, unless Congress waives it superior position through legislation.

    What you’re advocating for is called nullification. Nullification was a theory roundly rejected by the Supreme Court and any legal scholar or lawyer with a grain of salt. It was first rejected by ink, the rejected by blood with the end of the Civil War, the nullifiers were crushed on all fronts.

  41. Submitted by Geoff Thomas on 08/31/2011 - 10:57 am.


    Wow, you know your argument is on rocky ground when you have to dig up a Thatcher quote. That woman was, and is so despised in the UK that her own party got rid of her…

  42. Submitted by Patrick McManus on 08/31/2011 - 11:09 am.

    Sorry, I meant no Peter, not Neal. I must’ve seen Neal’s name and had it stuck in my head.

  43. Submitted by Patrick McManus on 08/31/2011 - 11:12 am.

    Should also say Marbury v. Madison, not Madison v. Marbury. Man, I need an edit button and coffee. I’m out of it today.

  44. Submitted by Justin Adams on 08/31/2011 - 11:15 am.

    Mr. Tester in #27 said:

    “Contrary to what your average government school kid has apparently been taught, “from each according to his ability to each according to his needs” wasn’t written by our founding fathers.”

    Mr. Tester seems to to be suffering from a misunderstanding, no doubt also occasioned by a failing of our underfunded public schools. He aparently believes that this idea came from the mind of Karl Marx. Not so.

    Adam Smith, writing in Book 5, Chapter 2 of The Wealth of Nations, said:

    I. The subjects of every state ought to contribute towards the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state.

    (From each according to his ability)

    The expense of government to the individuals of a great nation is like the expense of management to the joint tenants of a great estate, who are all obliged to contribute in proportion to their respective interests in the estate.

    (Suggesting that individuals consent to belong to a state or society, and that their participation is neither forced nor coerced)

    In the observation or neglect of this maxim consists what is called the equality or inequality of taxation.

    So, far from being a modern socialist ploy, in reality, this is economic philosophy put forward by the champion of laize faire, Adam Smith, whose work on this particular subject certainly was known and endorsed by the founding fathers.

  45. Submitted by Robert Burch on 08/31/2011 - 12:50 pm.

    So Eric you are for the Federal Government being the BE ALL, END ALL? Disregarding the Xth ultimately means YOU HAVE NO RIGHTS! The several states and the people thereof grant the Federal government NOT the OTHER WAY AROUND!

  46. Submitted by Robert Burch on 08/31/2011 - 01:00 pm.

    By the way the commerce clause is in there to promote commerce not, choke the life out of it.

  47. Submitted by Christopher Bell on 08/31/2011 - 01:16 pm.

    In modern society the vast majority of individuals do not grow their own food, make their own clothing, dig and refine their own oil & gasoline, manufacture their own cars, build their own homes & factories, build their own roads where they need to travel as individuals, provide their own sewers, police their neighbors , create their own schools, fire stations, hospitals, airports and so on. Individuals join together in communities to ensure that what they cannot provide as individuals can be provided by some form of collective action. Some of these needs and services are provided by private sector business (a form of collective activity) , some are provided by the public sector and some are created by the private and public sectors acting together. The recent state shutdown demonstrated the important role government plays in conjunction with private businesses and interests of all kinds. All of these collective actions require money. We purchase goods and services from private enterprise which can use some of that money to provide the private sector services we desire, such as electricity, water, etc. Public sector services are paid for by taxes. Taxes are currently considered by many to be bad, a form of robbery. However, taxes pay for our common defense, safety, education, roads and highways, Social Security, Medicare, Medicaid, and many other services upon which we depend and which are so numerous as to be impossible to list here. Taxes are the price we pay for our public infrastructure upon which almost all private enterprise relies . There is no true dichotomy between the individual and the community of which the individual is a member. It is a balance and sometimes the balance tips more than it should in the direction of the individual and sometimes it tips too far toward the community but, in general, the balancing act has worked pretty well in my opinion. How does the community make decisions? We elect representatives at the local, state and national levels to participate in community governance as representatives of the people who send them to perform government service on our behalf including to tax and spend for the collective and individual good. The rights and demands of the individual and the powers and services of the elected government representing the community are both subject to numerous constitutional and legal constraints also to numerous to enumerate here . Logically, Americans must have the government we want or it would not be so. We have no one other than ourselves to blame if we don’t like what our government is doing.

  48. Submitted by Patrick McManus on 08/31/2011 - 03:05 pm.

    Mr. Burch,

    You’re correct. The commerce clause is there to promote commerce. Our country has existed for 235+ years. Our Constitution with the Bill of Rights has existed for 220, without for 223 years.

    The commerce clause has expanded in power since the 1930’s, yet our country has existed for the 75 or so years since the commerce clause has increased in power. In fact, corporate profits are the highest they’ve been in the history of the world, under the expanded commerce clause.

    If you’re concerned about unemployment, well, the commerce clause did not cause the current recession. Our lack of a recovery is due to a lack of demand for goods and services, hardly within the purview of the commerce clause. Capital investment will create jobs; thus, increase demand. However, businesses won’t do it because they are afraid that there won’t be enough demand to make expansion profitable. So unless the government does it…well this all another point.

    Anyway, Mr. Burch, sir, could you please explain through Supreme Court precedent or example where the commerce clause has either gone too far or choked out business in this country (please, without talking points or platitudes)?

  49. Submitted by Marcia Brekke on 08/31/2011 - 03:37 pm.

    #37, Ray, your comments are consistently excellent–well thought-through, knowledgeable, and clearly expressed. Thank you!

  50. Submitted by Robert Burch on 08/31/2011 - 05:30 pm.

    Patrick you do realize regulation alone eats up more than 10% of GDP at the very core of our GDP are the wealth creators. All the rest just circulate wealth. All those that are promoting class warfare are HOARDERS of wealth. It’s a simple ploy, 80% of job creators are small business. Not the big mega corporations in bed with Government IE: GE, Goldman Sachs,< George Soros > All those calling for higher taxes are putting massive strain on the little guys. When they crumble and they will under this Administration. The big boys swoop in and buy em up for pennies on the dollar. You have Immelt sidling up with the Chinese Government owned Tech company to compete with Boeing. Watch Washington state Dems put more pressure and strain on Being in the coming months. Putting them out of Business. You have Soros invested in Brazilian oil when pressure on our oil companies is getting worse. I am under DOT rules and regulations It costs me and my employer I’m nearing the point where I won’t be able to pay my bills much longer. Electricity is going to skyrocket as well as fuel. The crash coming my friend with these people in Office it’s just around the corner. The dollar fails interest rates on the National debt goes up to the point we will not even be able to pay the interest. Solution? abolish currency and bio chip everyone.

  51. Submitted by Robert Burch on 08/31/2011 - 05:40 pm.

    PS. You do realize that the only Politician out there with fortitude to give the power back to the people and the states is Ron Paul.

  52. Submitted by Hal Davis on 08/31/2011 - 07:46 pm.

    Here’s another view of the Tenth Amendment:

    “[T]he broader text of the Constitution confirms that the Tenth Amendment does not limit federal power. If anything, the Tenth Amendment recognizes potentially expansive federal power. That is because the enumerated powers in Article I, Section 8, themselves are deliberately vague and potentially capacious – designed by the Framers not as a rigid code, but as pliable principles to endure over time.”


    The ACA and the Tenth Amendment
    Steven Schwinn

    He’s associate professor of law at the John Marshall Law School in Chicago and co-editor of the Constitutional Law Prof Blog. He teaches, writes, and practices in the areas of U.S. constitutional law, comparative constitutional law, and human rights.

  53. Submitted by Dan Gerber on 09/01/2011 - 12:58 am.

    “from each according to his ability to each according to his needs”

    Maybe this idea came from the New Testament?
    There’s the parable of the three servants in
    Matthew 25:14-30 and Luke:11-27. Later in Acts
    2:43-47 and 4:32-37 the believers held and
    distributed possessions in common.

  54. Submitted by Paul Udstrand on 09/01/2011 - 08:39 am.

    //“The trouble with socialism is that eventually you run out of other people’s money.” Margaret Thatcher.

    Given the nature of the recent financial sector collapse, one has to conclude that the same is true of capitalism as well.

  55. Submitted by Paul Brandon on 09/01/2011 - 09:33 am.

    Please document these statements:
    “regulation alone eats up more than 10% of GDP”
    “80% of job creators are small business”
    (note that “job creators” is not the same as ‘jobs’; if GM creates a thousand jobs, it has done as much as a hundred small businesses creating 10 jobs each).

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