August 21, 2009
Introducing the Tenth Amendment
As gratifying as the results of the popular uproar over Obama-Care have been, so too, distressing has been the level and substance of arguments used by a populace on the right side of things. Town Hall Meeting cries of "I want my country back!" and " No to death panels!" may stir the passions of us right-wing extremists but the dearth of meaningful follow-up betrays, it is to be feared, a distinct misreading of the extent of actual conservative sentiment.
Unfortunately, apart from the fun sound bites, the anger exhibited is frequently based on a particular outrage, sometimes one of degree, involving specifics of the various proposals, or questions about procedures, about Granny's hip replacement. The frightening suspicion remains that these particular questions may be answered by slick politicians (as they eventually get their bearings) and result into the all-too-common accommodations we have seen repeatedly in the past, Republican style me-too-ism, that will degrade from a principled "No to the Public Option!" into just as deleterious compassion-filled "Health Care Reform Lite" with a bi-partisan seal of approval.
So stealing from the wise if cynical counsel of Rahm Emmanuel with his "never waste a crisis" advice and joining Skip Gates in his desire for "teaching moments", let us make the effort to chip away at the national ignorance and explore the foundational argument ignored by both sides in the ongoing "crisis".
The question to be explored is this. By what authority does the federal government intervene in health care?
Ah, the stumper! This is the kind of question that reduces arguments to sputtering. The of course-ness factor takes over and results in a virtual cognitive interruptus. The idea that government (whatever that is) exists to fix problems (whatever they are) is so ingrained in the common mentality that the very question of what is proper is not even considered. Surely only cranks and constitutional fossils would ever go there! But, of course, our founding fathers started there.
The purpose of the United States Constitution as written, was twofold: first, to form a more perfect union of the states after the chaos experienced under the Articles of Confederation, and second, to limit the powers of the new federal government and thus avoid the tyranny into which history had shown a sovereign national government had always developed.
The amendment, like most of the US Constitution, and unlike most lawyer-speak, is clear and understandable.
Amendment XThe 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.
This means that the government is limited to the powers carefully and explicitly listed in the preceding document. Pretty simple. It remains a block on federal usurpation of powers, and despite two hundred years of working around it or ignoring it, in quiet gentleman's agreement fashion, the amendment has never been repealed. Of course, the concerns of the framers have been more than justified and it is a certainty that were they aware of the subsequent interpretations the Constitution would never have been ratified.
The usurpation of sweeping powers by a mighty national government was so feared that the Bill of Rights was a precondition of ratification. And to emphasize the point an explanatory preamble was added:
The Preamble to the Bill of Rights states -
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 starts of its institution.
In the era of Obama's imperial presidency, with ever accumulating and unaccountable Czars, explosive debt, bank bailouts, corporate takeovers, Congressional redistricting, tax increases, a lack of any perceptible restraint on the judiciary, the sad reality is dawning on many if not finally on most that we live in a post-constitutional nation. The volume and emotion of the protests comes both from a sincere anger and panic but also from the frustration of an inarticulate and uninformed citizenry that feels what it doesn't know. People may cry "liberty!" and "hands off" but don't have the education and intellectual ammunition to make a solid case.
So, planning to take the country back? It is best to begin with the basic propositions.
If the Tenth Amendment is accorded proper respect and contested with half the zeal bestowed on the First and Second Amendments, many of our problems and serial crises will be resolved. And the real beauty of this approach is that no legislation or political grace needs to be enacted.
The Tenth Amendment exists and can be effectually pressed into service to prevent all manner of future federal usurpations and power grabs, Cap and Trade, Global Warming initiatives, Stimulus packages, Wall Street bailouts, etc. which we can be sure, are on the way. Studying, appreciating, appealing to, and demanding adherence to the Tenth Amendment is a great place to start. And it can start today.