Article 25

Ask an Unemployed Lawyer

In Uncategorized on 05/05/2014 at 11:48 am



States’ Rights! States’ Rights! States’ Rights!

A legal oddity, the 10th Amendment is pretty black and white

By U.L.


Dear U.L.,

A federal judge says Ohio has to recognize gay marriages legally performed in other states. My question isn’t really about gay marriage, but about state sovereignty. Can you tell us what state sovereignty means anymore?

Kasey Kasich


Dear Kasey,

“The 10th Amendment added nothing to the Constitution as originally ratified.”(a) In fact, the 10th “states but a truism,” (b) a tautological statement that neither limits the powers of the federal government nor expands the powers of state government.

Who made such an evil, anti-American assertion? Why, the United States Supreme Court did, in U.S. v. Sprague (1931)(a) and U.S. v. Darby (1941)(b).

A seminal 1819 decision written by Chief Justice John Marshall (who has schools and other buildings named after him, so you know he knew what he was talking about) that gives all first-year law students nightmares is McCullough v. Maryland.

Marshall so thoroughly and eloquently wrote about whether Congress had the power to create a national bank that, until it became politically opportunistic to argue otherwise, your “state sovereignty” question was answered 195 years ago.

Words matter

The 10th Amendment states, “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.”

By contrast, the Articles of Confederation used the phrase “expressly delegated,” and Marshall wrote that omitting the word “expressly” was deliberate, in part because the People were the agents of the establishment of the Constitution, not the states. In other words, the Constitution reflects the will of the people governed; the states just ratified it.

Thus, even though the word “bank” appears nowhere in the Constitution, the federal government has “implied powers” to further its enumerated powers in Article I, Section 8. So the creation of a national bank was a “necessary and proper” exercise of its federal powers”

In other words, one could argue – and many law professors have – that the 10th Amendment, by not saying “powers not expressly delegated to the United States by the Constitution,” actually works to expand federal powers, not restrict them.

Keep in mind that Checks and Balances and the Bill of Rights was in no small part a response to fear of the stupidity of the masses. Part of Enlightenment thinking was that all men were created equal, but until they got educated – and most of them could not or would not – they couldn’t be trusted to think any better than your average quadruped.

The fear that a true “majority rule” would result in a usurping of the power of the moneyed and educated elite still resonates in the law today. See Chief Justice Roberts’ lament about the masses unfairly hating upon wealthy people in his recent decision lifting limitations on individual campaign contributions.

Unholy alliances

Confusing the 10th Amendment issue, the fight has gone beyond establishment Democrats, who want big government to benefit their friends in social services and other Mr. Fixit projects, and establishment Republicans, who want big government to benefit their friends in the private sector.

So among the strange bedfellows copulating on the right, we have the libertarians, who want to limit government to further empower individuals, and the tea partiers, who want to limit the federal government so state governments may be empowered to punish and discriminate against those individuals they don’t like.

Further fornication between, say, the forces of Focus on the Family and the forces of postmodernism has produced bizarre offspring. Take theme-park entrepreneur Ken Hamm, who argues that only the Bible is literally true, while everything else (such as science and history) is open to interpretation.

Philosophically, theologically, politically and morally, the right wing in this country is in a mess, which adds to the 10th Amendment gibberish. Of course, there has probably been no greater manifestation of this than what happened right here at home.

Procter & God

You know the story: 

In 1992, Cincinnati City Council passed an ordinance prohibiting discrimination based on sexual orientation. The next year, the vox populi our Founding Fathers so feared approved Article XII, an amendment to the City Charter, by a near two-thirds majority vote. Article 12 prohibited “protected status” for gays and lesbians, and the Queen City remains the only municipality to ever enact such a law.

That amendment was then repealed in a 2004 vote (by a margin of 54-46 percent), in no small part due to the efforts of the Republican-lovin’ business community. Focus on the Family called for a boycott of Procter and Gamble after the company donated $10,000 to a group supporting repeal of the amendment.

You almost have to feel sorry for the evangelicals. In a fight between their god and a multinational corporation, Yahweh didn’t have a prayer of a chance.

“Article 12 is bad economic policy that hinders the attraction and retention of employees,” P&G said in a statement in response to the boycott. “(It) hurts Cincinnati’s convention and hospitality business and creates an image of intolerance and an unwelcoming community.”

Even big business fears the uneducated idiocy of the hoi polloi. Pissing off consumers is bad for business, no matter how you rationalize it. Let them eat Twitter.

The Boogie Man

In Alcoholics Anonymous, they say what you resist, persists. Carl Jung called it the shadow. Some refer to it as ghosts, demons or karma. Metaphorically, it’s the atonement of sin, taking responsibility for your mistakes, making amends to those you have wronged.

Failure to do so results in neurotic, paranoid, schizophrenic damnation, a self divided. The debate over the 10th Amendment is a projection of fear, a refusal to acknowledge mistakes made and debts due.

This is the story of Lee Atwater.

“In 1988, fighting (Michael) Dukakis, I said that I would ‘strip the bark off the little bastard’ and ‘make Willie Horton his running mate,’ ” Atwater told Life magazine shortly before dying of brain cancer. “I am sorry for both statements: the first for its naked cruelty, and the second because it makes me sound racist, which I am not.”

Atwater, blues musician and Republican strategist, did not create the “Southern Strategy” of scaring the hell out of Southern whites to get them to switch parties, but he executed it to perfection, starting with Ronald Reagan, who first declared war on the 10th Amendment in his November 1979 announcement to run for the presidency.

“The 10th Article (sic) of the Bill of Rights is explicit in pointing out that the federal government should do only those things specifically called for in the Constitution,” Reagan said. “We haven’t been observing that 10th Article of late. The federal government has taken on functions it was never intended to perform.”

What did Lee “I am not a racist because I play the blues” Atwater have to do with the resurgence of debate about the meaning of the 10th Amendment? He explains it in a 1981 interview with Alexander Lamis, a political scientist at Case Western Reserve University in Cleveland:

“You start out in 1954 by saying, ‘Nigger! Nigger! Nigger!’ By 1968 you can’t say ‘nigger.’ That hurts you, it backfires. So you say stuff like ‘forced busing,’ ‘states’ rights and all that stuff, and you’re getting so abstract.

“Now, you’re talking about cutting taxes, and all those things you’re talking about are totally economic things, and the byproduct of them is blacks get hurt worse than whites. And, subconsciously, maybe that is part of it. I’m not saying that. 

“But I’m saying that, if it is getting that abstract and that coded, then we’re doing away with the racial problem, one way or the other. You follow me? ‘We want to cut taxes’ is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than ‘Nigger! Nigger!’ ”

‘A little heart’

It still took the conservative Supreme Court to catch up to the wisdom of Atwater, but even in recent 10th Amendment cases, it’s pretty hard to miss a pattern, a shadow, if you will.

In 1995 the court ruled for the first time since 1936 that Congress had exceeded its authority under the Commerce Clause. In U.S. v. Lopez, the Court ruled that Congress did not have the authority to create gun-free school zones. Thank God for that ruling, am I right?

In 2000 the court struck down part of the Violence Against Women Act. In U.S. v. Morrison, the court ruled that Congress did not have the authority under the Commerce Clause or the Equal Protection Clause (14th Amendment) to allow rape victims to sue their attackers in federal court.

By contrast, the court ruled in South Dakota v. Dole (1987) that a federal law that withheld federal highway funds from states that did not raise the minimum drinking age to 21 was constitutional under the Spending Clause.

“I was trying to position the Republican Party to take advantage of it,” Atwater told Life. “But I wasn’t exactly sure what ‘it’ was. My illness helped me to see that what was missing in society is what was missing in me: a little heart, a lot of brotherhood.”



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