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Constitutional Amnesia

July 20, 1999

A conservative legal scholar, who shall be nameless here, has illustrated the trouble with conservatism today: its profound ignorance of the Constitution it should be conserving.

Conservatives habitually object to new federal programs on pragmatic and economic, rather than constitutional, grounds. Program X “won’t work,” it will “cost too much,” it will even “hurt the people it is intended to help.” Never do they simply object that since the federal government has no power to enact Program X, Program X is unconstitutional.

The Tenth Amendment makes the principle clear: Whatever the Constitution doesn’t authorize the federal government to do, it forbids it to do. “The powers not delegated to the United States [i.e., the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

That’s not a beautifully crafted sentence, but it’s far from the “unedifying truism” and “platitude” our conservative legal scholar says it is. It prohibits the federal government from assuming powers the Constitution doesn’t positively — that is, expressly or by necessary implication — grant. As James Wilson explained at the time, “Everything which is not given is reserved.”

The same scholar makes the common error of calling the Tenth a “states’ rights” provision. It’s chiefly a limitation on federal power. It doesn’t say which of the undelegated powers are “reserved” to the states and which to the people. It merely says that any and all undelegated powers are denied to the federal government.

[Breaker quote: 
Conservatives have forgotten what their ancestors knew.] The presumptive denial of powers to the federal government is what made that government “federal,” rather than centralized or, in the language of the Framers, “consolidated.” Until Franklin Roosevelt’s time, nobody regarded it as a “platitude” or “truism.” Everybody understood exactly what it meant and how vital it was.

Even Lincoln consistently admitted that the federal government had no power to touch slavery in the states where it already existed. He carefully framed the Emancipation Proclamation as a measure to put down rebellion in the Confederate states. It didn’t emancipate a single slave in the Union states; that step required the Thirteenth Amendment, constitutionally delegating a new power to the federal government.

In 1919 the Constitution had to be amended again to authorize the federal government to impose Prohibition. The Tenth Amendment still had real force.

But during the New Deal, Franklin Roosevelt’s Supreme Court, eager to expand federal power, declared (in United States v. Darby, 1941) that the Tenth “states but a truism that all is retained which has not been surrendered.” In other words, the states and the people were entitled only to powers the federal government hadn’t claimed. The Court substituted the telling word “surrendered” for the Constitution’s word, “delegated.” You “delegate” power to an inferior; you “surrender” power to a superior. This ruling, by draining the Tenth of any force, inverted the whole federal structure, reducing the states to vassals of the federal government.

Where did the federal government claim to get all the new powers the New Deal sought? Roosevelt’s Court inflated the Commerce Clause — which authorizes Congress to “regulate Commerce ... among the several States” — to permit federal control of any activity that might conceivably have a “substantial effect” on interstate commerce. Thus virtually anything the federal government might choose to do became “constitutional,” since virtually anything can be arbitrarily defined as “interstate commerce.”

By that logic, Congress could have abolished slavery or imposed Prohibition by a simple majority vote of both houses, without any constitutional amendment. After all, slavery and liquor certainly had a “substantial effect” on interstate commerce.

Today Congress doesn’t even bother arguing its authority to enact this or that law. It assumes a limitless power to do as it pleases — on gun control, tobacco, “a patients’ bill of rights,” and such entitlements as Social Security and Medicare. So we now live under the “consolidated” government the Constitution was designed to prevent.

The pity is that even conservatives and their legal scholars have forgotten the Constitution and allow their enemies to rewrite the political ground rules. The unequivocal text can’t be changed by the courts or superseded by case law. Lincoln understood it; today’s conservatives don’t.

Joseph Sobran

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Reprinted with permission of Universal Press Syndicate