I 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:
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.