Sunday, October 31, 2010

Are the Tenthers indeed extreme?

OK, Nathan, let me first make a wisecrack about your definition of what is an extremist idea. If you apply it literally, the single-payer system of health care falls under this definition, don't you think? It does change the fundamentals of how health care is provided in this country, and could have led to violence if it were adapted because a majority of the country is so much against it.

Now about the Tenth Amendment, which I understand very differently from you. You write that this amendment allows states to pass any laws that do not contradict the federal laws. If this were the case it would have been a non-issue from very beginning. I think, however, that the meaning of this amendment is much less trivial than your post suggests. My understanding is that it forbids the federal government to make laws in the areas outside of those that are defined by Constitution. The practical application of this amendment depends on interpretation of several Constitutional clauses, mostly the Commerce Clause.

Some of the examples that you have used to make your point are, in my opinion, out of place. For instance, funding of research by federal government falls very well under the Welfare clause of the Constitution, and I do not remember any states disputing it. So let's focus on things more relevant to the issue under discussion. Minimum wage law, which, in my opinion, is a bad law, was indeed challenged under the 10th Amendment, but I do not think it is really a 10th Amendment issue or at least not in its traditional understanding as state versus federal government dichotomy. However, this is also topic for a separate debate.

Now let's talk about the Tenth Amendment itself, which has more interesting and controversial history than your post implies. In its heart is the dispute over separation of power between state and the federal governments, which is as old as the Constitution itself. Respectively, the tenthers movement is of about the same age and was not created by the Tea Party. At various times throughout the history, this movement moved to the forefront of the public consciousness or receded to the subconsciousness of the nation, depending on the expansion or shrinkage of the powers of the Federal government. It is hard to see this movement as extremist given that the first Tenther was none else but Thomas Jefferson. He invoked it in his dispute with Alexander Hamilton regrading the 1st Bank of the USA, and while Washington took Hamilton's side, the 10th amendment continued to be considered an important part of the Constitution. During the years before the Civil War, many states, not just Southern ones, tried to use it to block Federal legislation, which they deemed as violating their rights. However, the dispute over the "tariff of abomination" and the nullification crisis of 1832, which you mentioned in your post, was not really a 10th amendment issue. South Carolinians saw that tariff as an attempt by the industrial North to improve their economic situation at the expense of agricultural South and their actions was a just attempt to save livelihood of the state's citizens.

Civil War and the victory of the North made, of course, 10th amendment dormant for quite a long time, but eventually it did make a comeback with 1883 Supreme Court decision striking down the the Civil Rights Act of 1875. The 20th century, and in particularly, the New Deal policies of Roosevelt, weakened this amendment again, however, it was used in several Supreme Court cases as a basis for litigation, sometimes successfully, during entire of the 20th century.

Thus, I would argue that attempts to limit the power of the Federal government with the help of 10th amendment is a long standing tradition in the ever changing political discourse of the country as it tries to balance and re-balance the rights of the federal government, state government and the individual. In my opinion it is a very useful tool to keep the government in check, because any government has the tendency to expand its power further and further unless it's not prevented from doing so by the laws and people willing to invoke them. In 1985 ruling, Supreme Court delegated to the Congress the power to limit its own power through the democratic process shifting the problem of the power balance from legal to political realm. I do not completely agree with it, but as it stands now, it puts a great responsibility on the citizenry to make sure that their representative in the Congress vote only for those laws that give Federal Government as much power as people are willing to give to it. In this situation the 10th amendment becomes a useful political tool to limit the growth of the Government. So, in my opinion, the Thenters are not extremists, they continue a long tradition that began with Jefferson, and which helped the people of this country to remain as relatively free as they are now. Because any expansion of the Power of the Government means narrowing of people's freedom.

Just one additional thought. The Tenth amendement issue might appear to be a specifically Southern issue, which is not too surprising given that after the loss in the war, the South was occupied by the Northern troops and was deprived of their simplest liberties. I also think it is wrong to demonize the 10th amendement because the South used to it to protect their rights to keep slaves. After all, human laws as well as natural laws can be used for good and for evil, but we do not demonize Einstein's mass-energy relation because it lies in the foundation of the atomic bomb, do we?


  1. I find it important to make the following comment on my own post. Any human laws are open for interpretation no matter how carefully they might be formulated. This is particularly true for constitutional provisions as they are often intentionally vague. Some of possible interpretations can indeed be considered as extremist. In the case of 10th amendment this is the denial of the concept of "implied powers" and insistence that Congress has only powers specifically enumerated in the Constitution. The concept of the "implied powers" is a very subtle one, and I am not qualified to give its complete exposition. My understanding of this is that it hinges on the idea that Congress can operate in the areas outside of those directly mentioned in the Constitution if the powers it seeks are absolutely required to carry out its constitutional duties. This concept has been used and abused many times throughout the history. However, the complete denial of implied powers by some of the Tea Party people is wrong and is indeed extreme. Having said that, it is my opinion that the health care reform passed by the current Congress is an example of the gross abuse of the concept of "implied powers". As I mentioned in the main post, I do not like the Supreme court ruling saying that Congress itself must decide which powers to have. In my view such an approach essentially remove the 10th amendment outside of the Constitutional field, which I think is wrong. Thus, I hope that the Obamacare lawsuits will reach the Supreme Court, and I hope that the Court will strike this law down resurrecting the Tenth Amendment to its proper place.

  2. Thanks for your post and comment. You did some good research and made me think through my position a little more thoroughly. I admit, my characterization of the Tenth Amendment may have been a little off-handed. Certainly, there were periods in which the courts put more emphasis on the Tenth Amendment and used it to rein in the power of Congress. If I'm not mistaken, there were even some cases as late as the 1990s in which laws were struck down by the Supreme Court on the basis of the 10th Amendment. So it is by no means a totally irrelevant and obsolete anachronism.

    But as interesting as you post was, it essentially misses the point. I have no beef with the Tenth Amendment itself. I don't think it is particularly profound, but I'll certainly grant that it plays a useful role. My problem is with the way in which it is being interpreted by modern day "Tenthers." I think this is what you alluded to in your discussion of "implied powers." Obviously the framers of the constitution, for all their brilliance, were not clairvoyants. They could not foresee all the areas in which the power of the state might have to be applied centuries later. Yet the Tenthers are insisting, as far as I understand it, that we stick to the literal wording of the constitution -- if it's not written down it doesn't apply. I'm glad to see you agree that this is an extreme position. The effect of this approach, essentially, would be to strip the state of any and all of its regulatory powers. Environmental protection, financial regulations, consumer advocacy, labor law, education--all of these well established spheres of state activity would fall by the wayside. I hope you agree that the results would be extremely destructive and disruptive.

    But once you accept the power of the state to regulate economic activity under the commerce clause, you can't be selective in how you apply it. So, you don't like the new healthcare legislation--fine! I disagree, but I realize that there are more or less reasonable arguments on both sides. But I don't accept the premise that the government does not have a right to act in this area. Still less, do I accept the premise that states have the ability to determine on their own whether laws are constitutional and unilaterally refuse to put them into effect. This is what I was getting at with my mention of the nullification crisis of 1832. There is an established path of recourse when the state overreaches in its power--the courts. When states bypass the courts and take matters into their own hands don't be surprised when violence breaks out.

    To be continued...

  3. Getting back to healthcare and your wisecrack at the outset. Yes, it did occur to me that a single payer health plan might fall under my definition of extremism. But I can think of at least two powerful mitigating factors. First, we already have a single payer plan of sorts in the form of medicare/medicaid. This wouldn't be a matter of introducing a total new system so much expanding a structure that already exists. Secondly, there is the experience of the rest of the world. If we turn our gaze away from ourselves, we can see that some variation of a single payer system exists in just about all of the developed nations. We can see from their experience that rivers will not boil and the moon will not explode if we adopt single payer. That's not to say the system would be perfect, but if would be infinitely superior to what we have now.

    But even granting that a single payer system would mark a extreme departure from the established practices and structures of American health care, you certainly can't say that about so called "Obamacare." Quite to the contrary, the program's designers bent over backwards to maintain the established structures -- private health insurance, doctors and hospitals. Even the 'public option' couldn't penetrate. Yet we still hear the hysterical cries of "socialized medicine" and "death panels." I find it baffling.

    Incidentally, I do not believe that a vast majority of Americans are opposed to health care reform. Quite to the contrary. All the polling I have heard suggests that a clear majority either supports the health care reform more or less in its present form (roughly 46%) or opposes the program because it doesn't go far enough. The voices of irreconcilable opposition to the reforms are in a clear minority--roughly 20-30% if I'm not mistaken. As is often the case, the so-call "will of the people" trumpeted from the right, turns out to be the loud voices of a small but well funded and well organized minority.

  4. Nathan, I think that I understand your position quite well. You do not like the idea of imposing explicitly defined limits on the power of the federal government, and you think that attempts to do so are extreme and dangerous. What is more interesting is how you explain your position. The essence of your arguments can be summarized in two quotes from your comment. Here is the first one: “… all of these well established spheres of state activity would fall by the wayside. I hope you agree that the results would be extremely destructive and disruptive.”
    Actually, I do not, or at least, not completely. I do not have any problems with EPA or SEC, and I was not able to find any opposition against these agencies from the Tenthers. At the same time, I personally would not loose any sleep over disappearance of federal Education or Labor Departments, and I think that Tenthers are correct calling for abolishing them. Honestly, I do not see any reasons for Federal Government to get involved into education, which is funded and regulated at local levels. Do you really think that anyone who really matters – teachers and students – would notice if the Department of Education would suddenly disappear? As far as labor regulations are concerned, I can hardly see any need for them even at the state level, but this is a topic for a different discussion.
    I am a little bit surprised, though, at your choice of these examples. I would expect you mentioning something more along the lines of welfare, Medicaid /Medicare, Social Security, which is really a big sore in the eyes of the Tenthers. These programs would be difficult to kill, but not because they are so vital for normal functioning of society. It is just that these programs created too many people financially and otherwise dependent on it. You threaten their livelihood and they will do everything to fight for their jobs, entitlements, privileges, etc, even if it means disrupting lives of other people or even resorting to violence. Once you started giving people something, it is virtually impossible to take it back, even if it is unsustainable, hurtful to society and to people receiving assistance. Does it mean that we have to accept this status quo? I do not think so. These giveaways are not just harmful economically, they corrupt the people for many generations. I believe, therefore, that people who attract attention to this problem do a very important job. Do not get me wrong, however. I am not advocating for abolishing the safety net completely. At a certain level of prosperity, a society can afford to help people who are in need. This, however, should be done at a much smaller scale and completely at the state level. (And yes, I do know that welfare is, to a large extent, already administered by states.)
    The difficulty in eliminating federal programs brings me to another important point. This difficulty is exactly the reason why we must be extremely vigilant against any attempts of the federal government to get involved in new spheres of our lives. I do not think that this is extreme to require federal government to prove that any new program or agency it wants to create is indeed essential for government’s ability to function as prescribed by the Constitution. The role of Tenthers in this regard is in my opinion very positive.

  5. Now, your second quote: “But once you accept the power of the state to regulate economic activity under the commerce clause, you can't be selective in how you apply it”. This is something I completely disagree with. Yes, you have to be very selective in applying the commerce clause and welfare clause, and Constitution provides you with the selection rules. The implied powers granted to federal government are only those, which the government needs to exercise its enumerated powers. Thus, it must be the burden of the government to make sure and convince society that what they want to do satisfies this condition. You see, this is the philosophical distinction between my worldview and yours. You want government to do all what is not explicitly forbidden, and I believe that government should do only what is explicitly allowed by Constitution or by the people.
    Oh, I almost forgot about the nullification issue, which is controversial and interesting to talk about. There are a few curious discussions on various websites of this issue, and even the most extreme libertarians do not agree on it completely between themselves. May be we could talk about it separately, but now I just want to make a few comments. Actually, this issue these days does not seem to be quite that extreme. There are several examples, when states actually did it, for instance California's law on medical marijuana, and there are some other examples, and in none of these cases the nullification led to any kind of violence. However, I do not consider the nullification as a sates' rebellion with administrative and legal consequences, but rather as a political statement. And when more than a dozen states pass laws nullifying aspects of the health care reform, the federal government should take it very seriously.

  6. You've given me a lot to think about and I'm not sure I can cover all the points in one go, but I'll give it a try.

    Let me start by making a distinction between matters of policy and matters of constitutionality. We can argue, for example,about the advantages and disadvantages of certain entitlement program--whether they create a culture of dependence or whether a social safety net is a necessary condition of a humane and just society. But in neither of these cases are we disputing the legal or constitutional right of the state to provide such services. This is a matter of policy. But what our literalist friends are doing is taking legitimate issues of policy and framing them in constitutional terms. They not saying that the government shouldn't do these things because it's a bad idea. They're saying that the government does not have the power under the constitution.

    Why is this kind of thinking dangerous? It gets back to my point that you quoted about selectivity. Let's just say that there's congressional debate over the Department of Education and your argument proves convincing. Fine! Federal involvement in education is a terrible idea, let's get rid of it once and for all. So we've decided a matter of policy. But this is very different from making a constitutional determination that would eliminate a whole class of actions. For example, when the Supreme Court ruled on Brown vs the Topeka Board of Education in 1954, they weren't just saying that one little girl in Topeka Kansas had a right to attend the nearest school. They were saying that discrimination is wrong anyway and everywhere. You couldn't say that discrimination was OK in one place and not in another. This is what I mean when I say you can't be selective. My point is that constitutional remedies are a powerful and a rather blunt instrument, and they can have a myriad of unintended consequences. If you argue that the government doesn't have the power to regulate under the commerce clause because you don't like a particular type of regulation, then you have to eliminate all regulation, even the types that you agree are necessary. Does this make sense?

    I hope this helps clarify what I meant when I talked about well established spheres of state activity falling by the wayside. I had in mind specifically the state's regulatory powers and my examples were carefully chosen to fall within that realm. Entitlement programs, or transfer payments (taking from the rich to give to the poor) as they're sometimes called are a different topic that I'll try to get to later.

    One last clarification. I would not really say that I object to any explicit defined limits on the power of the Federal Government. Quite to the contrary--I think the Bill of Rights is a wonderful document without which America as we know it could not have survived. (I have my doubts about the second amendment, but that's another story). What I do believe is that the government has the right to assume specific and previously unforeseen powers in order to fulfill the general obligations outlined in the constitution. For example, back in 1787 no one could possibly have envisioned that there could ever be such a thing as radio, or TV or, heaven forbid, the internet. Yet when these things did appear, the Federal Government, drawing on the powers vesting in the commerce clause, established the FCC to order and regulate the use of the airwaves. If you were to limit the powers of the government to those explicitly listed in the constitution, the FCC would have to disappear. So, I'm certainly not saying that the Federal Government should be able to do everything and anything, but I am saying that it needs the ability to create new structures in order to realize the broad principles outlined in the constitution.

  7. Thanks, Nathan; this was a very instructive comment. I agree with you that distinction between the matter of constitutionality and the matter of policy is an important one. However, I still do not think, that these two ways of looking at the legislative process must be completely divorced from each other. According to Jefferson “To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition." Balance of political powers keep shifting all the time, but the power of Congress must have boundaries independent on the prevailing mood of the country, or will of politicians to carry out this or that particular policy. The Bill of Rights does not sufficient in this case since it explicitly defines only relationship between individuals and State in the sphere of political freedoms, but it says nothing about the State powers in economic sphere. Hayek makes a similar point in his “Road to Serfdom”: “By giving the government unlimited powers the most arbitrary rule can be made legal: And in this way a democracy may set up the most complete despotism possible”. The only limitations to the power of legislators come from Constitution, and, therefore, constitutionality of any proposed legislation must be an important consideration.

    Now, you are afraid that application of constitutionality standards will strip State of all regulative powers, and you use as an argument the concept of “uniformity”. I, however, think your fears are exaggerated. I understand your example of Brown versus Topeka that made all kind of discrimination illegal. However, let assume that I, for instance, sue a school in New York for something related to “No child left behind”, and the Supreme Court find this program illegal. What the heck, let’s dream: the Court found the existence of Department of Education unconstitutional. This ruling will be uniformly applied across all schools in the country, but how will this affect SEC, or DOE, or any other area of Government activity not related to secondary education? The Constitution, as I mentioned in my previous Comment allows for discriminating between different types of State activity under the commerce of welfare Clauses. If one of them is found unconstitutional, it does not mean that another will be immediately eliminated. All the government has to do is to proof that without the proposed agency or legislation it is not able to exercise one of its enumerated powers. It is, of course, easier said than done, but this is the only way to find the right balance – limit the power of the State, while permitting it to function effectively.

  8. A quick response to your query. It seems to me that if the Supreme Court were to declare "race to the top" (Obama's version of no child) or even the Department of Education as a whole unconstitutional, the broader implications would depend on the grounds on which the the judgment was made. If it were an issue specific to the program itself, say a problem with equity in the distribution of benefits that might be seen to conflict with the 14th amendment, then as you suggest, the judgment could be localized. But, to return to the original premise of this thread, let's imagine that the Supreme Court accepted an argument based on the tenth amendment claiming that the Dept. of Ed. had no right to exist because the power to oversee education is not enumerated in the constitution. In that case, the court would be opening the door for a tidal wave of lawsuits claiming that one agency or another is not mentioned in the constitution. And if the court were to hold by its original option, then one by one all of the regulatory institutions of the state would come tumbling down.

    I certainly don't think that this is likely to happen any time soon. But this is the reading of the constitution that the "Tenthers" are promoting and so I think it's legitimate to consider what the consequences would be if they had their way.

  9. Nathan, it seems that you do not hear me. The Court can and should base its decision on 10th amendment but Consitution requires a qualification for each particular case stipulating that the Congress fails to prove that this particular law is essential for it to perform its duties under the Commerce and/or Welfare clause. No one, in his right mind, would argue, for instance, that existence of FCC or EPA falls under Commerce clause, which explicitly requires Congress to regulate INTERSTATE Commerce. This, however, is not that obvious in other cases and must be considered on case by case basis. I think that this is what Tenthers wants. But again, as with anything in this country, Tenthers are not a homogeneous group, they have their moderates and their own crazies. There are even capitalist-anarchists. Nevertheless, I remain with my opinion that the main premise of the movement requiring each law to pass test on compliance with 10th amendment is legitimate and necessary to limit the Power of Congress.

  10. One more quick thought. It seems to me, but please correct me if I am wrong, that your opposition to Tenthers movement at least partially based on a presumption that current political climate with prevalence of left-to-center world view will continue for eternity. Thus you are afraid that the constitutionality requirement would put an obstacle on passing new laws and regulations which you believe are important, like single payer health care system. Imagine, however, that the political winds started blowing in the opposite direction, and the majority in the Congress and Senate went to right Cristian fundamentals. The first thing what they would try to do is to use Commerce clause to overturn Roe versus Wade and make abortion illegal. Then the 10th amendment will be on your side, don't you think?

  11. OK Lyova, I think I see what you're saying now, and I can't say I disagree. In fact, it seems to me that what you are describing is essentially the status quo. After all, we have not, to my knowledge, abolished the tenth amendment. It is still on the books and there have been cases in recent memory in which it has served as the basis for overturning laws. Anyone who thinks that a particular agency or program violates the tenth amendment is free to file a lawsuit and hope that it gets taken up by the Supreme Court.

    What I don't really understand is your suggestion that there should be some sort of vetting process whereby any new law must pass a tenth amendment test before is can become law. As far as I know, this is simply not the way the legislative process works. Laws passed by Congress and signed by the President are presumed to be constitutional until the courts, in response to a legal challenge, find them to be otherwise. You seem to be suggesting something very different--a model in which the Supreme Court, or some other body, is given a direct role in the legislative process through a kind of constitutional veto. Don't you think that this would mean a vast increase in the power of the judiciary(the least democratic of the branches of government) and a major shift in the balance of power. I think this points to a problem in the idea of "shrinking" government. Often you can't eliminate institutions or powers without creating new ones.

  12. Judicial process is too long and cumbersome, it should be used as a measure of last resort. I was thinking more in terms of Congress policing itself through may be a Constitutional Committee that would work as many other committees processing proposed legislation do. This committee of course would have extraordinary powers, therefore organization of its work should be very well thought through. It is not easy and it will not be perfect, but it is better than status quo, because legal challenges to passed laws take years, and by the time they get to the Court, it would become a "well established sphere", which would be very difficult to get rid of.

  13. But wouldn't Congress taking upon itself the power to judge the constitutionality of laws under the tenth amendment itself be in violation of the tenth amendment? Where in the constitution is Congress granted such powers? Such an arrangement would set up a rather dangerous situation in which Congress is essentially writing its own rules and policing itself--rather like what we saw in the early 90s in Russia when the Congress of People's Deputies had the power to amend the constitution however it say fit. If this kind of vetting were to take place it would have to be through an independent body--like the judiciary.

    Incidentally, I'm not so sure that the courts are always so slow moving. For example, it only took one or two years for the Citizens United case, which arose out of an incident in Hillary Clinton's 2008 campaign, to make it to the Supreme Court. There's a case of judicial activism if there ever was one.

  14. Yes, I see the problem here, but it is the status quo, which resembles the situation in Soviet Union. I am not suggesting eliminating judicial review, which is always an option. All what I suggest is that Congress vets all its laws through a special Committee similar to the Congressional budget office to ensure that Congress does not pass any laws contradicting Constitution, and Constitution does require that Congress passes only constitutional laws. Thus this activity is well within Congress's limits of power.

  15. I would suggest that the committee to which you refer is the conscience and judgment of each individual legislator. If a congressman feels a law is unconstitutional it is his duty to vote against it and try to convince his colleagues to do the same. But these things are not always clear-cut. Even the Supreme Court is more often than not divided in its reading of the constitution. Therefore any committee like the CBO (staffed by bureaucrats, incidentally) that acts as an arbiter of constitutionality, would be taking on enormous new powers not provided for in the constitution itself.

    Frankly, I'm baffled by your comparison of the present day status quo with the Soviet Union. No offense but I'm struck by how so-called conservatives these days profess such a deep reverence for the constitution while harboring such disdain for the political order to which it gave birth. This just reaffirms my conviction that in this day and age liberals are the real conservatives.

  16. Now I am baffled. This discussion takes a completely unexpected turn. My comparison with Soviet Union was a quick and may be not a completely appropriate reply to your comparison with the same, which seemed inappropriate and did not make too much sense to me. I am apologizing for that and am going to ignore the last two sentences of your comment as unsubstantial.

    As far as your suggestion to rely on consciousness of the legislators, good luck with that. It worked perfectly well in the past!!! They do not even read the laws they vote for! I agree that this is a complicated issue, and nothing is clear cut. This committee would have to come up with their best judgement, and when I compared it to CBO I only meant that it should be non-partisan, and staffed with members of Congress in equal proportions representing both parties. (We have enough lawyers in Congress for that). And I do not see what new powers would this Committee have. The Congress already has a duty to adhere to Constitution, and what I am talking about is just a way to make sure that they do what they are supposed to do. An alternative would be to give States the power to check Federal acts for their constitutionality, as many Tentheres suggest, but this would in my opinion never work, and this is where I do see at least some of their propositions as extreme. This extreme position can, however, be understood if not justified: in the current political climate when Federal Government usurps more and more power, people opposing this process simply have to move to more extreme positions in order to exert a bigger force. Just like in physics.