F6 .. Rally 'Round the "True Constitution" .. not ..
Convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations? Conservatives have a movement for you.
Ian Millhiser .. August 25, 2009
Rep. Michele Bachmann, R-Minn., speaks at the Republican National Convention in St. Paul, Minn., Tuesday, Sept. 2, 2008. (AP Photo/Ron Edmonds)
Almost a year after she called for an investigation to discover which members of Congress are "anti-American," Minnesota's nuttiest lawmaker is back. In a recent appearance with Fox's Sean Hannity, Republican Rep. Michele Bachmann accused her colleagues of "forg[etting] what the Constitution says" because they are poised to pass comprehensive health-care reform. Not to be outdone, Sen. Jim DeMint of South Carolina told right-wing activists on a conference call last Thursday that health reform violates the 10th Amendment; he also called on state legislators and governors to "champion individual freedom" by resisting the bill. Two Florida lawmakers beat DeMint to the punch, having already introduced legislation to block health reform from taking effect in their state.
These efforts are all part of a movement whose members are convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations disfavored by conservatives. Indeed, while "birther" conspiracy theorists dominate the airwaves with tales of a mystical Kenyan baby smuggled into Hawaii just days after his birth, these "tenther" constitutionalists offer a theory that is no less radical but infinitely more dangerous.
Tentherism, in a nutshell, proclaims that New Deal-era reformers led an unlawful coup against the "True Constitution," exploiting Depression-born desperation to expand the federal government's powers beyond recognition. Under the tenther constitution, Barack Obama's health-care reform is forbidden, as is Medicare, Medicaid, and Social Security. The federal minimum wage is a crime against state sovereignty; the federal ban on workplace discrimination and whites-only lunch counters is an unlawful encroachment on local businesses.
Tenthers divine all this from the brief language of the 10th Amendment, which provides that "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 layman's terms, this simply means that the Constitution contains an itemized list of federal powers -- such as the power to regulate interstate commerce or establish post offices or make war on foreign nations -- and anything not contained in that list is beyond Congress' authority.
The tenther constitution, however, reads each of these powers very narrowly -- too narrowly, it turns out, to permit much of the progress of the last century. As the nation emerges from the worst economic downturn in three generations, the tenthers would strip away the very reforms and economic regulations that beat back the Great Depression, and they would hamstring any attempt to enact new progressive legislation.
Such retreat to fringe constitutional theories is one of the right's favorite tactics during times of historic upheaval. The right-wing South justified both secession and the Civil War on the theory that the Constitution is nothing more than a pact between sovereigns that each state is free to leave at will. In the immediate wake of Brown v. Board of Education, 19 senators and 77 representatives endorsed a "Southern Manifesto," proclaiming -- in words echoed by modern-day tenthers -- that Brown "encroach[es] on the rights reserved to the States" because the "Constitution does not mention education." President Franklin Delano Roosevelt spent much of his first term combating a tenther majority on the Supreme Court, which routinely struck down substantial portions of the New Deal.
But Roosevelt's black-robed adversaries are unlike modern-day tenthers in two respects. Although the Supreme Court was dominated by tenthers for much of the early part of this century, Roosevelt had a powerful populist movement on his side. He won his landside re-election victory in 1936 in no small part by campaigning against the tenthers on the Court, and he used his second Inaugural Address to chide these justices, warning them that "the Constitution of 1787 did not make our democracy impotent." With a powerful and popular president lined up against them, the Court's tenther coalition broke, and America's economic policy has rested almost exclusively in elected officials' hands ever since.
Today, however, the tenthers tap into the same populist outrage that inspired a generation of working-class religious conservatives to enthusiastically vote against their own interests. Fox News star Glenn Beck exhorts his audience to "be a constitutional watchdog for America" by lining up against health-care reform, cap-and-trade legislation, and the stimulus package. Gov. Rick Perry of Texas, who enthusiastically backed a tenther "state sovereignty resolution," told a right-wing radio host that he is "willing and ready for the fight if this administration continues to try to force their very expansive government philosophy down our collective throats." Tenther-inspired claims that federal spending violates the Constitution are so common at "tea party" protests that it is impossible to tell where the tenthers end and the tea baggers begin.
In other words, it is all but certain that tenthers will play a significant role in selecting the GOP's presidential nominee in 2012. And if that nominee wins, the tenthers could even come to dominate the administration in the same way that the religious right set its hooks into George W. Bush.
Additionally, while the Depression-era justices provided much of the movement's intellectual framework, today's tenthers are extreme even by 1930s standards. The Constitution gives Congress the power "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States," thus empowering the federal government to levy taxes and leverage these revenues to benefit the American people. =Tenthers, however, insist that these words don't actually mean what they say, claiming that spending on things like health care, education, and Social Security is simply not allowed.
Their basis for ignoring the plain language of the Constitution is a statement by James Madison that federal spending is only really permitted when it advances one of Congress' other enumerated powers, such as by building a post office or funding a war. Since the words "health care" do not appear in the Constitution, there can't be any federal power to pay for health care, and the uninsured can eat cake.
Although tenthers are correct that Madison did make such a statement, his views hardly reflect the founding generation's consensus. Alexander Hamilton, the nation's first Treasury secretary and a co-author of Madison's Federalist Papers, emphatically rejected Madison's claim that the words "provide for the … general welfare of the United States" have any kind of secret meaning. Moreover, it is not even clear that Madison still believed that the Constitution requires a decoder ring when he was elected to the White House. Justice Joseph Story, whom President Madison appointed to the Supreme Court, was a Hamiltonian.
If anything, the tenthers' invocation of Madison reflects the danger inherent in any appeal to the founding generation. Early American politics were at least as contentious as our own, and the framers debated the Constitution's meaning with just as much zeal and uncertainty as we bring to such arguments today. Indeed, the framers' many conflicting statements offer such a rich menu of viewpoints that it is possible to find a quotation to support nearly any political agenda.
More important, there is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance. After years of raging against mythical judges who "legislate from the bench," tenther conservatives now demand a constitution that will not let anyone legislate at all.
Conservatives mistake “Constitution” for “Articles of Confederation” by Publius .. December 27, 2010 .. all MY emphasis ..
Many have noted the irony of conservative politicians running on a platform of undying love for and understanding of the Constitution while simultaneously advocating the repeal of many of its significant provisions. Vocal elements of the conservative base, primarily centered on the Tea Party and pundits on Fox News, have advocated for repealing part of Section 1 of the 14th Amendment (citizenship) and all of the 16th Amendment (income tax) and 17th Amendment (direct election of Senators). Those are significant changes to the nation’s governing text, but they pale in comparison to the most recent calls for change involving nullification.
The so-called “Tenther” movement holds that the Congress continues to pass “unconstitutional” laws which are beyond Congress’ power to enact, and that the states have the right, under the Tenth Amendment, to reject all such laws. The legal theory behind the Tenther movement isn’t novel, but it is one that has been soundly rejected- politically, legally and militarily. The doctrine was used by the South to justify its continued use of slavery prior to the Civil War. It led to the South invoking nullification’s close relative, secession, as the ultimate exercise of state sovereignty. Military elimination of the doctrine and the racist policies supported by the doctrine cost the lives of over 600,000 Americans. The Constitution itself was born following a failed history with a legal document codifying the concept of nullification- the Articles of Confederation.
Given the racist past of nullification and secession, and the severe strain both policies placed on the nation and the Constitution as a whole, one would think the conservative movement would stray far from such policies. Instead, nullification has found new life and even a place on the ballot in many states. In Oklahoma, Missouri, Arizona and Colorado, voters have been asked to “nullify” the recent health care law, and nullification passed in each of those states but Colorado. Virginia recently passed a law through the legislature “repealing” health care with respect to Virginia. None of these efforts have any legal significance (which ought to be a sign that they aren’t constitutional, but I digress).
Of course, health care reform isn’t the only law pursued by Tenthers for nullification. According to the Tenth Amendment Center (which is pushing many of the nullification efforts), other laws targeted for nullification include medical marijuana laws, firearm control laws, cap and trade (which hasn’t even been enacted yet), EPA regulations, and more. In addition to repealing laws, the Tenthers advocate passing laws or constitutional amendments which restrict the definition of “interstate commerce” (which would restrict Congress’ ability to pass laws, because many laws are passed under the Commerce Clause), require state approval of federal tax laws, and require a return to the gold/silver standard.
It ought to be obvious that such efforts, if enacted, would effectively eliminate the federal government. If the federal government, for example, could not pass a budget without state approval, or could not raise taxes from residents of a state until that state consented, the federal government would be crippled. How do we know this? Because it was already tried once before and it failed miserably with the Articles of Confederation. Under the Articles of Confederation, the Confederation Congress could pass laws, but the power of enforcement lay with the states. Furthermore, Congress itself had no power of taxation- all revenue had to be requested by the states. Substantively, such provisions in the Articles of Confederation are identical to granting states under the Constitution the power of nullification. Under the Articles of Confederation, the federal government neared insolvency, inflation of the “continental dollar” skyrocketed so much that the saying “not worth a continental” was born, and the military, desperate for funding which rarely came from Congress, was authorized to confiscate whatever property it needed to carry on the war.
Notwithstanding these clear lessons from our past and the bloodiest war fought in US history, many in the conservative base continue arguing that embedded in the Tenth Amendment is the state right to nullify unconstitutional laws. Taking the next step in the logical nullification process, even conservative elected officials have then articulated a state right to secession, including Governor Rick Perry of Texas, Senator Jim DeMint (arguably the head of the Tea Party), Rep. Steven King (R-IA), Rep. Ron Paul (R-TX), and more.
Arguments for nullification and even secession are, more subtly, a rejection of Article III of the Constitution which establishes the judiciary and gives it the sole right to interpret the Constitution, and Article VI of the Constitution which establishes constitutional and federal supremacy. Any state which considers a law to be beyond the powers of Congress can challenge that law in the courts (as many have done with the health care law, for example). The courts then make a determination as to the constitutionality of that law and, provided it is constitutional, the law is then binding upon all states pursuant to Article VI of the Constitution. Nullification shifts that decision-making process away from the judiciary and into the hands of the state political classes. In effect, the role of the judiciary as a constitutional arbiter is eliminated.
Nullification proponents are quite familiar with the role of the judiciary and its ability to nullify unconstitutional laws. Simply put, such proponents have zero confidence in the judiciary and seek to re-write Article III.
The Tea Party admiration for the Constitution appears to end where Article III, Article VI, and Amendments 14, 16 and 17 begin. It is an admiration that ignores the historical fact that the Constitution was enacted to establish a stronger central government as a replacement for the weaker state-centered government which was failing miserably. It is a devotion that calls for violent “second amendment remedies” when the Congress and/or the courts take an action with which one may disagree. It is a love that calls for a return to policies which supported the racial oppression of millions to the shame of a nation. It is a love of the Constitution that would cause its demise. http://www.thefourthbranch.com/conservatives-mistake-constitution-for-articles-of-confederation/
Likewise, if the GOP succeeds in holding judgeships open, only to fill those seats with “tenther” judges the next time a Republican is in the White House, they could stack the courts with judges who think that everything from the Affordable Care Act to Social Security and Medicare is unconstitutional. http://investorshub.advfn.com/boards/read_msg.aspx?message_id=54118681&txt2find=tenther
To take the so-called "tenther" movement a bit further, if state sovereignty were to overrule fed gov't laws, US progress could be turned back dramatically...slavery could be o.k. again, women's right to vote could be challenged, religion (only certain religions of course) could be taught in public schools, public edu would be cut back in favor of "charter" schools (which, btw is happening in VA today), etc. etc. Many teabaggers hate WHO is in the oval office NOT simply because he is a Dem and would delight in seeing the US go backwards http://investorshub.advfn.com/boards/read_msg.aspx?message_id=47257839&txt2find=tenther
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