Penumbras, Emanations, and
Stuff
You
could easily get the impression that the U.S.
Supreme Court has banned public displays of the Tenth Amendment.
Actually, this hasnt happened, at least not yet. Anyway, adults can
still read it in the privacy of their own homes, if they can lay hands on a
copy. And
in the age of the Internet, it would be hard to suppress completely.
But a conspiracy of silence, if
observed by enough people, can be as effective as an outright ban. And since
at least the days of Franklin D. Roosevelt, that lump of foul deformity, most
employees of the Federal Government have tacitly agreed to avoid all
mention of the Tenth, which encapsulates the meaning of the U.S.
Constitution.
The silence was broken in 1996 by
Bob Dole, who, in a desperate attempt to salvage his losing presidential
campaign, said he always carried a copy of the Tenth in his wallet. Not that
anyone would have been led to suspect this from his long voting record.
The Tenth is often referred to as
the states rights amendment, but thats not
quite accurate. It speaks of powers, not rights. It says that the powers that
havent been delegated to the Federal Government in
the Constitution are reserved to the individual states and the people.
This was an attempt to make the
Constitution foolproof. Nice try! At the time, it may have seemed that
nobody, not even a politician or a lawyer, could miss the point: The Federal
Government could exercise only those powers listed in the Constitution.
Whatever wasnt authorized was forbidden. The basic list was found in
Article I, Section 8. It was pretty specific: coining (not printing) money,
punishing counterfeiters, declaring war, and so forth.
In principle, simple. Unfortunately,
however, it runs up against the politicians eternal credo: In
principle, Im a man of principle. But in practice, Im a practical
man.
So the politicians, all practical
men, began their endless but fruitful search for powers other than those
listed implied powers that werent spelled out
in the text, but were necessary and proper for the execution
of the explicitly enumerated powers. The very practical Alexander Hamilton
argued that a national bank was necessary and proper in this sense; but
Thomas Jefferson hotly denied it, and soon the two men were wrangling over
what necessary and proper meant, reaching an impasse over the
word and.
![[Breaker quote for Penumbras, Emanations, and Stuff: A short history]](2006breakers/060202.gif) Among
the most creative interpreters of the
Constitution was Abraham Lincoln, who found he needed all the implied
powers he could get his hands on in order to prevent peaceful secession by
the exercise of violence. As Professor Harry V. Jaffa approvingly puts it,
Lincoln soon discovered a huge reservoir of
constitutional power that suited his purpose. Nobody had discovered
this reservoir before. Later such reservoirs would also be
called penumbras, formed by emanations.
But the richest cache of
penumbras and emanations was later found in Congresss power
to regulate commerce with foreign nations, and among the several
states, and with the Indian tribes. Especially since the New Deal, the
part about the several states has gotten quite a workout. It
is now interpreted to mean that the Federal Government can
regulate just about everything we do, from sea to shining sea.
This makes the rest of the Constitution pretty much superfluous.
Where does this leave the Tenth
Amendment? Oh, that. The Supreme Court has held that
its just declaratory, a mere truism, a
trivially true acknowledgment that the states retain any powers they
havent actually surrendered (the Court carefully
avoided the fraught word delegated).
To call all this legislating
from the bench is an almost imbecilic understatement. It inverts the
plain meaning of the Constitution, making it mean the opposite of what it
actually says. Its nothing less than revolution by means of
interpretation.
If the power to regulate
commerce ... among the several states had been as broad as the
courts now say, Congress could have abolished slavery, imposed (and
repealed) Prohibition, and given women the vote by mere statute, without all
the bother of amending the Constitution twice.
Notice that the Tenth Amendment
is one of the few passages in the Constitution in which the Federal judiciary
hasnt discovered reservoirs of penumbras and emanations. I wonder
why.
Joseph Sobran
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