Wednesday, January 06, 2010

States’ Rights: Dumb Show and Noise

And all our yesterdays have lighted fools
The way to dusty death. Out , out, brief candle!
Life’s but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.
-- Macbeth, Act 5, Scene 5

The Republican Party has reached deep into its armory of political arguments and come up with its best shot against federally-mandated health care “reform.” Citing the Tenth Amendment, they are beginning to claim that Congress is overstepping its Constitutional authority to require individuals to purchase health insurance, thus usurping states’ “rights” to do the same thing. The power is not enumerated; ergo, it is unconstitutional.

In the meantime, over two dozen states, also citing the Tenth Amendment, have drafted proposals, resolutions or amendments to their state constitutions that would nullify in situ any federal health care legislation that may pass, because the power of Congress to enact such legislation is not enumerated. This movement smacks of secessionism.

In the meantime, Congress has simply ignored the tea parties and the polls that have made it resoundingly clear that the majority of Americans oppose any form of mandatory government administered and regulated health care. Aside from some specious rationalizations of Congressional power to enact the health care legislation, the original enumerated powers have garnered nothing but the Democrats’ disparaging raspberries.

Congress, the White House, and the Democrats may regard all this as just paper tigers meowing from behind the iron bars of already existing federal power. Just as Senator Ben Nelson of Nebraska was bribed into becoming the sixtieth vote for cloture on the Senate version of the health care bill (he was assured that federal funds would not be used to pay for abortions and that the bill -- or someone or some federal department -- would provide extra Medicaid matching funds and grants for Nebraska), Congress could just as well threaten to cut off federal funds to recalcitrant states, and nearly all states depend on federal “subsidy” money or allocations to maintain their economies. It could threaten to withdraw programs in which states are financially and/or politically ensnared, such as highway maintenance, or federal grants to universities, or a multitude of social programs. Or, the White House, in typical Chicago gangster style persuasion, can threaten to close military bases.

The White House, Senator Harry Reid and his allies in the Senate suggested to Nelson that Nebraska’s Offutt Air Force Base would be put on the Base Realignment and Closure list as “redundant” if Nelson did not help them reach the sixty votes needed.

But, what is the Tenth Amendment, the last of the Bill of Rights, ratified in 1791? It reads:

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.

Intimately linked to the Tenth Amendment is the “Necessary and Proper” clause of Article One (section 8, clause 18), which grants Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution….” But, the purpose of the Tenth, as well as the First through the Ninth Amendments, was to constrain Congress from making “all laws” that would violate the letter and spirit of the Amendments.

Senator Orrin Hatch of Utah, together with Kenneth Blackwell of the Liberty University School of Law and Kenneth Klukowski of the American Civil Rights Union, listed a number of protuberant reasons in The Wall Street Journal (January 5) of why the Obama/Reid/Pelosi bill is unconstitutional. To wit:

Under the power to “regulate commerce” clause, commerce by citizens may be prohibited by Congress and states alike, but Congress is constrained from mandating that citizens engage in commerce -- in this instance, buying health insurance. Clearly, unconstitutional! Why, we never heard of Congress compelling citizens to purchase “green cars” or “clean” energy!

“The ‘general welfare’ [Article I, Section 8] clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.” Clearly, unconstitutional! Debate on Congressional spending is out of bounds!

The purchase of Ben Nelson’s crucial sixtieth vote was made possible by demonstrably unfair and illegal chicanery. Clearly, unconstitutional! Chicanery never has besmirched the Senate before now!

The health care bill requires individual states to establish “such things as benefit exchanges, which will require state legislation and regulations,” not funded, however, by the federal government. If the states do not comply, the “Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.” Clearly, unconstitutional!

And where in this opinion piece are individual rights mentioned? Nowhere. Where is the moral argument against the government’s initiation of force -- by state governments or by Washington? Nowhere. What is the crux of Hatch’s argument?

The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.

And who is to protect us from our protectors? Who is to object to the states invoking their “states’ rights” and imposing the same powers and regulations as Hatch objects to Congress assuming?

On these points, Hatch is mute. He says nothing in what is a paramount moral issue. His argument, and others similar to his, are clearly irrelevant. The Constitution already contains amendments that obliterate the Bill of Rights and any statement of enumerated powers. He is a poor player, strutting and fretting, sounding furious, but signifying nothing.

In a September 16, 2009 press release about Utah governor Gary Herbert‘s participation in a governors‘ conference on health care reform, Hatch reveals his true colors. He protests the health care legislation then being concocted by the House, claiming that “individual states…have a greater understanding of the specific needs of our citizens,” and that it was “unfair” for strong states to be forced to subsidize the costs of weaker states.

Although Democrats and the administration are still trying to force a path of more government, more spending and more taxes, it is not too late start over and come up with a truly bipartisan and fiscally responsible solution that we can all be proud of. Taking a state-based approach is a great place to start.

Clearly, the Hatch arguments against the health care legislation are irrelevant. Utah already has a semi-fascist “health exchange.” One can only wonder if the irrelevancy is rooted in power-envy or is simply resentment of the prospect of the federal government stealing Utah’s thunder.

Compare the picayune constitutional arguments proffered by opponents of the health care and even the cap-and-trade legislation with this brief description of how the Tenth Amendment came into being:

After ratification of the Constitution, the anti-Federalists continued to voice their concerns over the powers of the federal government. In the course of the states’ ratification debates over the Constitution, states had recommended over two hundred amendments, which fell into two categories: 1) amendments aimed at limiting the powers of the federal government, and 2) amendments that protected individual rights. After ratification of the Constitution, it was feared that the anti-Federalists might garner enough support to call for a second constitutional convention, so James Madison, then Virginia’s representative in Congress, undertook the drafting of a bill of rights.

The Tenth Amendment Center contains a treasure trove of information on the history, significance, and role of the Tenth Amendment in American politics. James Madison, when the Constitution was being debated and was up for ratification by the states, answered the Anti-Federalist demands for provisions in the Constitution that would limit Congressional powers, by proposing some forty-two amendments, which were whittled down to twenty-seven, the first ten of which became the Bill of Rights. (The Twenty-seventh Amendment, which prohibited Congress from giving its representatives pay raises or cuts before the beginning of a new term, was ratified as recently as 1992.) He intended the Tenth Amendment to be broad and clear enough to constrain Congress from violating the first nine. But, a succession of Supreme Court decisions in the 19th and 20th centuries that sanctioned government expansion of powers so dulled the knife of the Tenth that it became extraneous verbiage -- much as the Constitution has become to a venal and avaricious Congress.

Couple that with the diminished character, intellectual moribundity, and congenital dishonesty of the majority of Congress’s members, past and present, and it is easy to grasp why America is in the state it is in.

There are signs that many states will revolt against any health care legislation passed by Congress. These movements are a direct consequence of the Tea Parties of 2009. One obvious question is why the advocates of this species of opposition believe that state governments are imbued with the wisdom and competency Congress clearly lacks. But these same states will need to swallow their guilt because, before now, they never stringently opposed or prohibited Congress from assuming undelegated, unenumerated, or unconstitutional powers, and were only too glad to plead for federal assistance. It may be too late to start now.

The issue, nevertheless, is one of force or compulsion, regardless of the level of government. This is the fundamental issue on which any constitutional argument should be based. The Constitution was drawn up to guarantee individual rights to life, liberty, property and the pursuit of happiness. All else is merely dumb show and noise.


pomponazzi said...

Thumbs Up!! Why is America still fighting the Civil war? When will Americans understand that multiple tyrannies are no substitute for one federal tyrant? What about Individual rights and the outlawing of physical force, whether by Harry Reid or by Jack the Ripper?

TJWelch said...

Notwithstanding the subsequent amendments that "obliterate the Bill of Rights and any statement of enumerated powers", do you think the Tenth Amendment is itself flawed? While stating that certain powers "are reserved to the States... or to the people," it doesn't specify which ones are reserved to the states and which to the people. In doing so, doesn't it leave the door open to the states to usurp them all?

Anonymous said...

TJWelch: No, I don't think the Tenth was flawed. There was extensive debate on whether or not the Bill of Rights was necessary. Some saw it as dangerous. It listed what the authors (chiefly Madison) saw as the absolutely essential rights that should be protected so that there would be no misunderstandings. Listing everything would have produced a 20-page checklist of concretes. The first four amendments subsume all derivative rights. It was "understood" by Madison and others that no politician would dare seek to subvert, abridge or nullify those essential rights.

Remember that men like Madison, Jefferson, Henry and others had a more benevolent view of men, and couldn't imagine that anyone would want to destroy individual rights. They did, however, exert their best efforts to guarantee that those rights would be protected. Their premise was, concerning powers "reserved to the states": If you wish to belong to this federal system, you must adhere to certain principles, including those covering individual rights. The Civil War came about in part -- and I emphasize in part -- over the South's flagrant refusal to respect the rights of some individuals (slaves). It was also an issue of federal power.

Their imagination, however, and unfortunately for us, could not envision the almost limitless cesspool of creatures who have since rendered the Constitution a dead letter. They existed in Madison's time.

But, however magnificent the Declaration and the Constitution are, they are only as good as the men who are willing to respect and preserve them. They are not fail-safe. There is a quantum of hope that the Tenth Amendenters in the states might get it right. But, if you examine the reasons why many states are proposing to "opt out" of the health care legislation, you shouldn't be optimistic.

Tom said...

The only solution to our current government is secession. The US Constitution is flawed from start to finish. Patrick Henry and Thomas Jefferson were right.

That being said, your sentiment is correct: If the states that secede don't fundamentally change their state government, then they will have in no way gained from secession. The only state that has the right to secede is a state that adopts a constitution which directly and vigorously defends individual rights; a constitution based on the declaration of independence, specifically: the right to your own life, to your own liberty, and your own pursuit of your own goals.

M.D. Labeit said...

Secession does seem very attractive. A return to a confederacy would nice. I hear it said often that the federal government frequently hussles states that don't comply by denying them funds. But this can't apply to all states. If some states are net tax consumers, others must be net taxpayers. Its also unfortunate that the decision to threaten the existence of military installations is made on the basis of local political compliance, not national defense.

Anonymous said...

One aspect of the semi-secessionist movement which I did not dwell on here is the power of the Federal government to attempt to suppress it, with physical force (military) or other arm-twisting means (blackmailing of state officials or extortion). Don't measure the power of the Feds by how the Feds screwed up the Waco raid or responded to Katrina. If the administration judged a secessionist act (or even gesture, such as a state resolution) to be a "national security" threat, it would pull out all the stops. No state would be able to resist the magnitude of force the Feds could bring to bear on a single state -- even Texas -- provided the military took orders and there was no resistence to the administration's directives, which would include a declaration of martial law. What would happen in such a scenario is a craps shoot. On one hand, Obama is not well loved by the military; on the other hand, the military might just obey orders. All we can do is wait and see what happens this year.


Elisheva Hannah Levin said...

Nullification is a 10th amendment move for States to finally stand up to an out of control federal government that comes up short of secession. Although the wording of the nullification of the health care bill in committee in my state is not strong enough on individual rights, it does mention them as protected not only by the US Constitution but also by our State Constitution.

Although I am not a Constitution mystic--that is, I do not think it is a perfect document--I do believe that it is time for Americans to push back against the usurpation of their rights by government and that if we could at least instill in the federal government a healthy respect for what Jefferson called "the chains of the Constitution" we will have begun the restoration of liberty to the United States.