Why the Tenth Amendment Should Trump Trump if You Want Liberty

President Trump claimed “total authority” over when the country would “open for business” and end the coronavirus shutdown. Trump said, “The president of the United States calls the shots,”  and claimed the state governors “can’t do anything without the approval of the president of the United States.”

We took a different position – the same one Thomas Jefferson took.

“I consider the foundation of the Constitution as laid on this ground: ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’”

The Constitution doesn’t delegate any power to the federal government to “open” or “close” the country because of a virus. It, therefore, falls to the state governors to take the actions they deem necessary to deal with the pandemic within the limits of their state constitutions.

Nevertheless, some libertarians and sundry Trump supporters cheered the president’s power-grab, claiming that “Trump is saving us from the tyranny of state governors.”

As Robert Wenzel writing for Target Liberty put it, “It appears that Trump is more likely to open the country up sooner than some state governors thus I support his effort.

Wenzel went on to explain that his reasoning was purely pragmatic, writing, “I am not doing this on some legal grounds or principles but on a realpolitik position.”

“As a libertarian and in particular a PPS libertarian, I will not attempt some legal nicety to base my claim on. I will simply cheer him on in this particular effort and argue the point that the economy should be opened up on free market and free exchange principles. That is all. It is possible I could turn on him on the next prominent issue.”

Wenzel’s position seems logical on the surface. Trump appears more inclined toward liberty on this issue. If liberty is our primary goal, we should empower him as much as possible to act. If he goes left somewhere along the line, we can oppose him then.

But Wenzel’s position ignores the existing political structure of the United States. He’s not really disagreeing with the Tenth Amendment Center or some political strategy. He’s disagreeing with the Constitution itself. And engaging in the U.S. political process while arguing that we should just ignore the Constitution is a little like saying Chick-fil-A should stop using chicken.

Granted, Wenzel is not a constitutionalist. In fact, he rejects the entire political system. He wrote, “I see no need for governments, national or local, to rule on matters. I prefer free exchange and respect for private property.”

That’s nice. I prefer to have $10,000 deposited in my account every month. Unfortunately, reality doesn’t cater to my preferences and I would be a fool to spend as if that money was going to show up. I have to live in the real world where money doesn’t magically deposit in my account. And we also have to live in the real world with a functioning political system. As Murray Rothbard wrote, “Libertarians must come to realize that parroting ultimate principles is not enough for coping with the real world.”

Wenzel considers “both national and local governments in their structure as obstacles to freedom.” I don’t disagree. But he goes on to say, “My support is totally on a case-by-case basis depending on which ruling body will provide me the most freedom.” That’s nonsensical. Political systems don’t operate that way. If you’re going to try to use the system to advance liberty, you have to play on its own terms.

The president’s power doesn’t come from his personality. It comes from the Constitution. A president can only exercise the powers he’s given. Wenzel wants to ignore the system and the limits it imposes on presidential power because he likes the possible outcome of Trump’s actions. But if you give Trump this power today, Joe Biden might get to make the call in a few months. Or perhaps AOC in 2024.

This “do whatever is pragmatic for liberty” strategy falls apart in the American political system because when you give one person the power to do what you think is good today, that same person – or a future person – has that same power to do the opposite. You’re not empowering Trump. You’re empowering the presidency.

In practice, Wenzel’s strategy depends on the person in power instead of the powers inherent in the position.

Patrick Henry warned against this.

“Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty.”

Wenzel just blithely blows off “legal grounds or principles.” He trades them in for realpolitik. But how do politicians justify their power? Claimed legal ground and principles! Trump even made a thin attempt to support his assertion of “total authority.” Trump claimed “numerous provisions” authorized him to override local authorities. “We’ll give you a legal brief if you want,” he said.

In other words, legalities matter. Legal principles matter. As John Dickinson wrote, “All artful rulers, who strive to extend their power beyond its just limits, endeavor to give their attempts as much semblance of legality as possible.”

When you simply wipe legal limits on power away, in effect, you’re providing legal cover for the next guy.

Expanding government power for liberty isn’t a winning strategy. This is especially true when it comes to expanding federal authority.

Here’s the big question: why would anyone want the biggest government, the biggest empire in the history of the world – responsible for millions of deaths and trillions of dollars in destruction – to “save” them from some petty local dictator? That’s playing with fire in a big way.