Cons on Constitution Are Wrong and Dangerous

Wrong and Dangerous - Garrett EppsI recently read Garrett Epps’ fantastic, Wrong and Dangerous: Ten Right-Wing Myths About Our Constitution. I consider myself pretty well read on this stuff, but I learned a great deal from this little book. But by far I learned the most about the Tenth Amendment.

It is probably because I spent so much time as a libertarian that I got so confused about this amendment. It’s interesting how intellectually inbred one can become in a situation like that. The amendment reads, in it entirety, “The powers not delegated to the Unite States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But that’s not what I thought it said. Actually, that’s not what I knew it said. I was quite certain that it read, “The powers not expressly delegated to the United States…” This is a huge difference. Because the insertion of that word would make implied power unconstitutional.

Epps gives an example of how ridiculous the misreading is:

If “implied powers” still 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 US Army would have to march under 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.” Armies have to have flags — they are required under international law and necessary for military discipline and cohesion. 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.

In my defense, I made the “express” mistake because I wanted to have legal access to the drugs I most loved. But that isn’t true for the vast majority of those Epps refers to as “Tenthers.” He isn’t blunt about it, so let me be: they are bigots. He points out that nullification — the idea that the states can nullify laws that they consider unconstitutional — was originally proposed by John Calhoun: “the greatest defender American slavery every had.” And the idea went away with slavery. But it came back in — What a surprise! — the 1950s when the south was trying to hang onto segregation.

What’s so interesting about this is that the word “expressly” does come from somewhere: The Articles of Confederation. The Second Article reads, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” This, of course, was the original idea for the United States: that they would just be a confederation of independent nations. The problem was that it didn’t work.

What’s more, the absolute worst aspect of the Constitution, the acceptance of slavery and the the three-fifths compromise, shows that what was really stopping the United States from being a true nation was the south’s “peculiar institution.” And in a fundamental way, the United States wasn’t really born until the adoption of the Fourteenth Amendment — which greatly strengthened the federal government and limited the power of the states.

And if you want to know more about that, you really should check out Epps’ book. But it is important to remember the title of this book. Many of these right wing myths are incredibly dangerous for the nation. It seems that today, what conservatives most want is The Articles of Confederation. As much as they may say that they love the Constitution, what they say shows something else. As Rick Perry has explained, “Federalism enables us to live united as a nation… while we live in states with like-minded people who share our values and beliefs… If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas. If you don’t like medicinal marijuana or gay marriage, don’t move to California.” You could substitute “slavery” for the “death penalty” and his argument would make as much sense. Apparently, like most conservatives, he’s never read the Constitution.

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

2 thoughts on “Cons on Constitution Are Wrong and Dangerous

  1. I like this book, and it is an important exposé of dangerous myths, BUT the Epps quote on military units needing national flags is completely wrong historically. The US Constitution fairly clearly envisaged zero standing federal army. The army and CinC clauses refer to the state militias being embodied/mobilized under federal power for an emergency of no more than 2 years. Militia battalions carried no national color, only a regimental color with state symbols. Likewise, the units of the unconstitutional tiny federal army did not carry a national color. This may be a minor point shattering Epps’ logical analogy about flags, but the prohibition against a standing army has major ramifications to this day. This is yet another myth that even debunkers of myths know little or nothing about because we have been so conditioned by an alternate reality. We read the military clauses of the Constitution through the lens of that “reality,” and not in their real historical context and intent.

    • Thanks for the clarification. I never found that particular example all that great, but not for this reason. I just thought it was kind of a minor thing. I’m sure people have come up with better examples. My post is just grappling with my libertarian past and belief in a Tenth Amendment that never existed. Thanks again!

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