Breaking the Tenth Amendment

A lot of people want to shoehorn the Constitution into their personal notions about liberty. But the Constitution isn’t a declaration of liberty.

Even so, the decentralized structure of government inherent in the Constitution as ratified does provide a framework conducive to liberty if maintained.

Under the Constitution, the people of the several states delegated power to the various branches of the general government. But more significantly, they clearly divided power between the sovereign states and the central authority. And as ratified, the Constitution delegated the federal government very little power.

As James Madison wrote in Federalist #45, the powers delegated to the federal government are “few and defined.” The powers remaining with the state governments are “numerous and indefinite.” Federal power was primarily reserved for “external objects” including war, peace, foreign affairs and foreign commerce.

“The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State,” he continued.

All governments threaten your liberty, that much should be obvious.

However, the beauty of the Constitution is that it diffuses this power. It spreads it out throughout the system. Yes, it leaves a great deal of power to state governments. And state governments can certainly abuse that power. Government power is inherently dangerous no matter who wields it, or where. But we have 50 states. This creates jurisdictional competition. If you don’t like the way California handles a particular issue, you can move to Texas. You can’t escape one-size-fits-all policies enforced by the federal government without moving to another country.

But well-meaning liberty lovers sometimes undermine this fundamental structure with misguided attempts to harness centralized power to impose liberty. They want a top-down approach where the largest, most powerful government in the history of the world “protects” people from much smaller local, or state governments. This not only backfires in the vast majority of cases; it shatters the entire constitutional framework these people lean on in the first place.

In an article published at LewRockwell.com, Dom Armentano makes this mistake when he asserts that the federal government has the power to stop state actions taken in response to the coronavirus pandemic.

He wrote, “The States don’t have–and have never had–the legitimate power to regulate or prohibit religious freedom or freedom of assembly or ‘impair’ the obligation of contracts.’ Yet almost every Governor has done precisely this, i.e., they have restricted, regulated and prohibited activities that the Constitution itself says they have no right to restrict, regulate, or prohibit.”

Armentano correctly asserts that the states don’t have the legitimate power to violate freedoms of religion and assembly. But this has nothing to do with the U.S. Constitution. State constitutions prohibit states from exercising these powers. The federal Constitution has nothing to say about it. In fact, it leaves these issues to the states.

By making it a federal, constitutional issue, Armentano unwittingly destroys the integrity of the Constitution. He turns it into something it was never intended to be – a centralizing force for “liberty.”

Even if you think federal control over the states would increase liberty, the Constitution doesn’t delegate such powers to the federal government. The federal government cannot exercise powers not delegated to it. This is implicit in the structure of the Constitution. The Tenth Amendment makes this absolutely clear, clarifying that powers not delegated to the federal government remain with the states and the people.

Armentano makes another correct assertion when he writes, “It is true that the 10th Amendment does say that powers NOT granted under the Constitution to the Feds are, in fact, reserved to the States and to the People. BUT it also says, and this is a huge BUT, these so-called  ‘powers’ CANNOT include activities expressly ‘prohibited by it (the Constitution) to the States.”

But Armentano goes off the rails when he writes, “In short, the States cannot regulate or prohibit activities that are explicitly protected by the Constitution as ‘rights’, namely activities such as (Amendment 1) ‘the free exercise of religion’ and the “right of the people…to assemble…”

This sounds very libertarian, and even just logical, but it has no basis in the framing or ratification of the Constitution. In essence, it totally breaks the meaning and purpose of the Tenth Amendment

The problem with this statement is the Bill of Rights was never intended to bind the states.

Armentano’s argument falls apart on a plain reading of the First Amendment: “Congress shall make no law…” This places no restrictions on state governments. In fact, there were government-established religions in several states at the time the Bill of Rights was ratified.

The Bill of Rights even has its own preamble that makes this all very clear.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. [Emphasis added]

The words “its powers” clearly refer back to the Constitution. The Bill of Rights was intended to “prevent misconstruction or abuse” of the Constitution’s powers as exercised through “the government” – the federal government. Notice the word government is not plural.

The Bill of Rights makes no mention of state governments. The state ratifying conventions had no intention of restricting their state’s own powers. They already had state constitutions to do that job.

In fact, no founding-era evidence exists that Congress or the state ratifiers intended for the protections included in the Bill of Rights to bind state governments. None.

Doing so would have essentially created a federal veto over state laws, a massive expansion of central government authority – the exact opposite of the stated purpose of including a bill of rights. In fact, the framers of the Constitution rejected a provision in James Madison’s Virginia Plan that would have done just that – authorized the federal government to override any state law.

This would have obliterated the sovereignty of the people of the several states and that is the most fundamental concept underlying the U.S. political system.

Although each state entered a union with the other states as defined by the Constitution, it remains an independent political society, giving up only the powers delegated.

John Barron was the first person to formally try to impose liberty through the federal courts when he sued the city of Baltimore arguing that it violated his rights protected under the Fifth Amendment. Chief Justice John Marshall smacked down Barron’s claim. His opinion in Barron v. Baltimore perfectly explains the American political system and why the federal bill or rights can’t possibly bind state or local governments.

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

The fact that Marshall had strong nationalist leanings and typically favored centralizing power makes his argument even more compelling.

Today, federal supremacists skirt the original intent of the Bill of Rights through a legal bastardization of the 14th Amendment known as the incorporation doctrine. This raises more complex historical and legal arguments, but the end result is the same: centralization of power at the federal level and the complete destruction of the constitutional foundation.

I understand the temptation to centralize authority and apply the federal Bill of Rights to the states. The problem is, we get the centralization, but we never get the liberty. This approach ignores the fact that if the federal government is going to protect your rights, it must define your rights.

We may read the various provisions in the Bill of Rights and see “liberty.” But the federal government doesn’t apply your conceptions of liberty to anything. In effect, you’re depending on five politically-connected federal employees with law degrees to protect your rights. This seldom ends well.

There is no doubt that state judges applying the limits imposed by state constitutions will often fail to protect liberty, too. But their bad decisions only apply to their state. In a centralized national system, bad judicial precedents apply to the entire country.

Armentano calls state actions in response to the coronavirus pandemic “the complete abandonment of the rule of law.” He’s not wrong. But using the federal courts to smack down wayward states abandons an even higher law and tears at the very fabric of the American political system.

Centralization of power is dangerous to liberty in the long run — even when liberty appears to be the short-term outcome.