Ode to the Tenth Amendment

American-Flag1A majority of Republicans in Washington would like to invalidate President Obama’s executive order on immigration, not only because they disagree with it in politics and in principle, but because they feel the president circumnavigated the Constitution and governed by fiat.  While John Bohner and Mitch McConnell have a valid point, that the president may exceeded the limitations of executive power, not all Republicans practice what they preach.  When former Speaker of the House Newt Gingrich was campaigning in 2012, he said one of the first things he would do if elected and sworn in at high noon on 01/20/2013 is to sign an executive order repealing “Obamacare,” i.e., The Affordable Health Care Act.  While Gingrich’s proposed executive order may differ the one Obama implemented on the basis that Mr. Gingrich believes Obamacare is unconstitutional and both the Affordable Health Care Act and the executive order would be subject to judicial review, it is important that any future Republican president realize that if he or she elects to use executive power for any reason, he or she will be subject to the same scrutiny Obama faced on the day he used his and that the same rules apply regardless of party or philosophy.

Electing a Republican president and a two-thirds or greater majority to both houses of Congress will correct anything in Washington, and subsequently the nation, unless one other action takes place.  Getting back to the old Schoenhaus Theorem and the Calculating Lemma based on what financial state the Federal Government would be in if a reset button labeled 1789 were pressed and the Federal Government were reduced to what it was in the days of our Founding Fathers, the required mathematical formula to make the lemma work would be in the Tenth Amendment, the last of the Bill of Rights, ratified in 1791.  With proper enforcement of the Tenth Amendment, a balanced budget and the preservation of a free country for future generations is attainable with a more limited federal government, without the needy left in the dust.  What does the Tenth Amendment state?

The Tenth Amendment states that all federal powers should be limited to only those delegated to the Federal Government by the states or by the people.  In a nutshell, it is the formal statement that defines states rights and state sovereignty.  James Madison, out fourth president and co-author of The Federalist Papers, the papers that laid the basic building blocks for our Constitution, opposed the Tenth Amendment and thought the states acted to quickly and haphazardly when ratifying.  It was the failure of the Articles of Confederation that led to the 1789 Constitution that made us the United States of America and  Madison feared the Tenth Amendment was the extra exit door that could take us back to the concept of confederation undoing the original intent of the Constitution: …in order to form a more [perfect] union

As a result, applying the Tenth Amendment to the required calculation to make the Schoenhaus Theorem work is no straightforward formulaic.  Albert Einstein was able to take volumes of calculations and simply relativity to the omnipotent e = mc2 because he found one constant that relativity could be measured against, the speed of light, represented by the letter c in the equation.  In an inexact science, I am not expecting to find such a reliable constant.  What is important is that 536 people in Washington, the president, one-hundred senators, and 435 congressmen understand that the source of their power is the states and the people, not the party platform.  That they also understand that republic; or representative democracy was chosen over running the nation as one supersized New England Town Meeting will require them from time to time to make unpopular judgment calls without being led into temptation to overuse or abuse such power, and that the people who elect their representatives understand the words of Mick Jagger; you can’t always get what you want. 

Enforcement of the Tenth Amendment to the letter will allow each state to have minimum wage and other labor laws consistent with the commerce environment the state defines itself.  Agrarian states, industrial states, hybrid states, and combined aggregate states can tailor make the laws compatible the corporations, family farms, and small businesses that dot their respective landscapes and get the right workers at the right wages.  It would also allow states to make their best decisions on highway speed limits, to collect tolls or not, and how such best be implemented.  For example, while tolling by the mile and collecting at the exits works in states like Massachusetts, New Jersey, and Florida where exits can be 20 to 50 miles apart, it would be a disaster in Connecticut, especially on Interstate 95 from Greenwich to New Haven where many exits are less than a mile apart.

Where Madison’s point is well-take is with respect to global issues where laws and policies in one state can affect another.  A prime example is environmental laws.  The Atlantic coast covers several states between Maine and Florida and if ocean dumping laws were left to the individual states and a given state chose not to have such laws, pollution form that state will affect all others along the coast.  The result is the necessity for ocean dumping and other environmental preservation laws be federal.  The most historical tribulation challenging the Tenth Amendment took place in 1913 when the Federal Reserve System began and some states wanted to accept only gold (or silver) certificates.  The concept of states’ rights would break down if each state were permitted to have its own currency.  Like all constitutional amendments, the Tenth Amendment has its limitations and must be used properly within its boundaries.

The most important thing the Tenth Amendment defines is the direction of through-put for how government works at all levels.  It states that all federal power is limited to that delegated by the states or the people.  Each state is represented in Congress by two senators and one or more congressmen depending on the size and number of districts.  The people residing in a given state tell their representatives what needs to be done and if it need be the law of the land, they draw up bills, vote on it, and submit to the president for signature or veto.  The representatives are not allowed to make bills without checking with their constituents first except in the most extreme situations where life and liberty as we know it is at stake.  If ocean dumping in South Carolina were adversely affecting marine life on the coast of Maryland, and South Carolina were unwilling to adapt a state statute, Maryland residents would write their congressman requesting federal standards for clean water.  In so far as it means more federal regulation, it will be deemed acceptable if a greater good for the American people is achieved.

The issues that make the Tenth Amendment seem like an albatross are environmental issues, any resurrection of Jim Crow in the South, and entitlements such as the welfare state, which for better or for worse, cannot be abolished immediately and states cannot take on such departments currently handled at the federal level since states have debt issues of their own.  The best mechanism to enforce the Tenth Amendment is how federal aid money is distributed.  The Feds simply deny states federal aid money when they don’t comply with any act of law that must be implemented and enforced globally.  In 1974 when then president Richard Nixon used executive power to handle the energy crisis; when he experimented with year-round daylight savings time and mandated 55 mph speed limits on all limited access highways until the Clinton administration repealed the act in 1997, no federal mandates were issued with respect to either event.  States who did not lower their speed limits or turn their clocks ahead would be denied federal aid and therefore he achieved 100% compliance.  While the deficit was significant in 1974, it was not $18 Trillion as it is now.  Using denial of federal aid to enforce laws and executive actions in compliance with the Tenth Amendment is difficult to achieve if the Federal Government has no money to aid the states in the first place.  When it comes to an inexact science such as this, the calculating lemma that supports the Schoenhaus Theorem is not simply number crunching such as e = mc2 or simple interest = principle X rate X time.

When I came of voting age in 1980, I always believed in states’ rights.  Under the guidance of Ronald Reagan, who I believe to be the greatest president of the second half of the twentieth century, the Republican Party was the States ’ Rights Party and the rival Democrats were the big government party.  While the Republican Party remains the spending cut party and the Democrats the tax party, America no longer has a true states’ rights party; and that is what it needs the most.  If house and senate Republicans were all truly opposed to Obama regulating Health Care by fining via the income tax to those uninsured, they would have used the Tenth Amendment and give the states jurisdiction.  But to admit to the fact that the answer is in the Tenth Amendment would limit their power; the power they do not want to sacrifice.  This is what broke Washington; the fulfillment of the prophesy of John Locke: power corrupts; and absolute power corrupts absolutely.

While Republican conservative philosophy is the best weapon we have to achieve a balanced budget in our lifetime, we cannot let one side control all the political power in this nation.  If we are to remain a government of the people, by the people, and for the people, we need to enforce the Tenth Amendment, at least to the best of our ability.




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