What’s wrong with states’ rights?

Audrey Pietrucha
Bennington Banner
June 19, 2010

First there were “Truthers” andthen “Birthers,” and now there are “Tenthers.” To be accurate, the “Tenthers” actually came first, since this newly coined term (which is supposed to denote a “fringe” position and is therefore derogatory) refers to those who believe the 10th Amendment to the Constitution actually means what it says, that powers not delegated to the federal government are reserved to the states.

By this definition, today’s “Tenthers” may consider themselves in good company since we can assume many, if not all, of the founders themselves agreed with this concept.

The history of the “Tenthers” dates back to 1789, when the Constitution was being considered for ratification throughout the former colonies. Though the enumerated powers listed in Article 1, Section 8 of the Constitution seemed concise enough to limit federal power, Americans were still wary of government’s tendency to grow and liberty to yield.

This concern was a central theme at the state ratifying conventions and as a compromise the first ten amendments, known as the Bill of Rights, were added to the Constitution in 1791. Amendments IX and X briefly encapsulated the two-fold theory of the Constitution: that its purpose was to protect our natural rights, which are not granted by government but are inherent by virtue of our humanity; and, in keeping with this idea, the powers of the national government are limited by the Constitution to only those

enumerated therein.
Among the early "Tenthers" was Thomas Jefferson, who, while considering the constitutionality of a national bank in 1791, quoted the tenth amendment verbatim: "I consider the foundation of the Constitution as laid on this ground that ‘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,'" Jefferson said, then declared prophetically: "To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition."

This idea of limited federal authority is a cornerstone of federalism, a governing philosophy which James Madison, principle author of the Constitution, helped develop.

"The powers delegated to the federal government are few and defined," he said. "Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people."

The powers of the federal government today can hardly be called "few and defined." Far too much of our news and our lives seem to revolve around Washington, D.C. With nearly 2 million civilian employees the federal government is the nation's largest employer after the Postal Service, itself a semi-independent government agency.

Many federal agencies and departments -- Health and Human Services, Education, Housing -- do not even come close to being required under Constitutional authority. Most scholars trace this power grab to the 1930s and the Roosevelt administration, when the power of Congress to regulate interstate commerce was suddenly interpreted to mean Congress could regulate anything and everything. With this decision the Supreme Court essentially declared "No holds barred!"

But finally the states are starting to fight back against this encroachment on their rights to create a governing atmosphere in accordance with the will and the character of their residents. As of today more than 20 states have either introduced, passed or signed non-binding resolutions or binding legislation which basically warns the federal government to "cease and desist" from any and all activities outside the scope of its constitutionally delegated powers.

For the states' declarations of sovereignty to have any teeth, however, they must be willing to exercise the principle of nullification with regards to federal laws. Through nullification a state declares a federal law null and void within that state's boundaries. There are currently nullifications efforts underway against such diverse federal laws as those concerning Real ID, firearms, medical marijuana, health care and more.

Why is the reemergence of states' right an important step on the road toward restoring liberty? State governments, though still powerful, are in theory closer to and thus more responsive to their citizens. Also, allowing states to create varied and diverse societies within the larger society of the United States allows people to choose the one that best answers their desires and needs. In a society where choice is abundant, from the shelves of our local food stores to the multitude of apps for our iPhones, can we really tolerate a government that comes in only one size -- XXL?