Fightdirecto
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Constitutional Myths
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Politifact Georgia reports that pizza magnate Herman Cain told the audience at an Atlanta rally to read the Constitution, explaining that "for the benefit for those that are not going to read it because they don't want us to go by the Constitution, there's a little section in there that talks about life, liberty, and the pursuit of happiness ... When you get to the part about life, liberty, and the pursuit of happiness, don't stop right there, keep reading. 'Cause that's when it says that when any form of government becomes destructive of those ideals, it is the right of the people to alter or abolish it. We've got some altering and some abolishing to do."
This quote neatly illustrates two pathologies of 21st-century "constitutionalism."
First, many of these patriots love the Constitution too much to actually read it (in case you were wondering, the language Cain is quoting is from the Declaration of Independence, not the Constitution). Second, they love the Constitution so much they want to "alter or abolish" it to make sure it matches the myth in their heads. Those myths are a problem.
A "Tenther" is someone who believes the myth and not the reality and who seeks to brand all major federal legislation - child labor laws, environmental laws, gun control laws, Social Security, Medicare, ad infinitum - as violations of the "rights" of states as supposedly spelled out in the Tenth Amendment. Some of the more extreme "Tenthers" take the position that all amendments after the 10th Amendment are invalid.
Senator Jim DeMint, a Tenther and Tea Party pin-up boy, wrote in the National Review:
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the Tenth Amendment says powers not explicitly given to the federal government in the Constitution go to the states or the people
However, the 10th Amendment actually says, in it's entirety:
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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Constitutional Myth #7: The 10th Amendment
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Notice that DeMint, like a lot of "Tenthers," managed to sneak a word in that the Framers didn't write.
The word is "explicitly." Nothing in the Tenth Amendment says that powers - such as power to regulate child labor as part of commerce, for example - must be explicitly or expressly given to the federal government.
Since the Amendment was adopted, constitutional thinkers have concluded that the express powers delegated to the federal government by the Constitution necessarily carry with them the "implied" powers needed to carry them out.
If "implied power" sounds like tricky lawyer talk, ask yourself the following question: Is the American flag unconstitutional? The Constitution doesn't make any reference to a national flag. By the "express" argument, states and only states would retain what we might call "the flag power." The U.S. Army would have to march under a congeries of the fifty state flags, depending on the origin of each unit. That would be cumbersome, confusing, and dangerous -- and more to the point, stupid. Congress can "raise and support armies." A country that has an explicit power to raise an army has the implied power to designate a flag. Nobody seriously reads a Constitution any other way.
Conservatives don't when it's a power they want the government to have. And James Madison didn't either. Madison was the sponsor of the proposed Bill of Rights in Congress. When Representative Thomas Tucker of South Carolina moved to insert the word "expressly" into what became the Tenth Amendment, Madison "objected to this amendment, because it was impossible to confine a government to the exercise of express powers, there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae. Madison remembered the word 'expressly' had been moved in the convention of Virginia, by the opponents to the ratification, and after full and fair discussion was given up by them, and the system allowed to retain its present form." Tucker's amendment was voted down.
Chief Justice John Marshall, who had been a delegate to the Virginia Ratifying Convention in 1788 (making him, though you'd never know this from reading far-right "constitutionalist" writing, a Founder), read the Tenth Amendment the same way. In McCulloch v. Maryland, Marshall rejected the argument that because Congress has no express power to create a bank, it is forbidden to do so. He noted the absence of "expressly" in the Tenth Amendment: "The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments."
"Constitutionalists" who try to smuggle the word back into the Constitution aren't being faithful to the document; they are rewriting it. (They also try to smuggle the ideas of state "rights" and state "sovereignty" back in. In fact, many proud "constitutionalists" these days seem to me to bear primary allegiance to the Articles of Confederation, not this new-fangled Madison thing caled the Constitution Of The United States.)
The best way to read the Tenth Amendment we actually have is that its words mean what they say, and not what they don't say. The Constitution grants Congress all the implied powers "necessary and proper" to using its enumerated powers...
Some powers are given exclusively to the federal government, and cannot be shared, such as the power to conduct war and negotiate peace, regulate currency and emit bills of credit, or set the discipline of the armed forces and state militias. Some powers are given to the states, and can't be taken by the federal government, including the power to designate state capitals, adopt state constitutions, draw the political boundaries of cities and towns, choose the officers of their state militias. Many powers are explicitly denied to the states -- for example, they can't even negotiate agreements among themselves without Congress's permission. Some are expressly denied to the federal government -- the power to set criminal venue in states where the crimes did not occur, for example.
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When my eyes shall be turned to behold for the last time the sun in heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on States dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let their last feeble and lingering glance rather behold the gorgeous ensign of the republic... not a stripe erased or polluted, nor a single star obscured, bearing for its motto, no such miserable interrogatory as "What is all this worth?" nor those other words of delusion and folly, "Liberty first and Union afterwards"; but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart,— Liberty and Union, now and for ever, one and inseparable!
- Daniel Webster, 1830
The United States is not 50 small countries, working together sometimes and working against each other at other times - it is one nation.
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< Message edited by Fightdirecto -- 8/22/2011 9:00:15 AM >
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"I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.””
- Ellie Wiesel
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The word "Tenthers" forget is missing from th... - 
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