Saturday, October 30, 2010

Tenthers and Nullifiers

OK, Lyova.  At the end of our last thread, you suggested that I dig up some examples of Tea Party extremism for us to discuss.  To be honest, I wasn't all that keen on more tea--coffee's more my style these days--but I decided to do some poking around on the internet to see what comes up.   Let's just say that when it comes to extreme ideas, you don't have to look far.   Of course, extremism is often in the eye of the beholder, so I'll reiterate what seems to me a more or less objective definition.  Extremist ideas, in my book, are those that would require a major transformation of existing institutions and norms to be put into effect. I'm not talking about reform here.  I'm talking about fundamental structural changes that would significantly disrupt ordinary life and raise the potential for violence.  

As I said, there are lots of choices out there, but one strain that caught my eye comes from a group that's come to be known as the "tenthers."  The "tenth" here refers to the Tenth Amendment of the US Constitution, which, I have to admit I had to look up -- it's not one of the big ones that we all remember.  The Tenth Amendment concerns the relationship between the states and the federal government.  My reading is that it reiterates the common sense principle that as long as something isn't expressly forbidden it can safely be assumed to be legal.  In other words, the states can go ahead and make laws in any area that has not specifically been declared off limits or assigned to the federal government in the constitution. (The exact wording is: "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.").

OK, so far so good.  Basically all this means is that Congress has the power that it has--that it must act within the framework set up by the constitution.  What the tenthers are saying. however, is that unless an area of legislation is explicitly listed in the constitution, Congress can't touch it.   Why has this doctrine emerged now?   In a word -- Obamacare.  Tea Partiers don't like it, and since the constitution says nothing about regulating health insurance, the whole thing can be safely dismissed as unconstitutional under the tenth amendment.  Sounds good to me!  In fact the tenth amendment is such a nice tool, why not use it some more to get rid of other things that aren't in the constitution.  I don't recall that there's any mention of the minimum wage, for example.  There's certainly nothing about Social Security, or Medicare, or unemployment insurance or civil rights laws or the NIH, NSF, NEH, NEA, NASA, NWS, and all those other Ns supporting no-good scientists who sponge off hard working tax payers to come up with ridiculous lies about big bangs, monkey ancestors and global warming.

OK--so we've established that just about everything that the Federal government does is unconstitutional under the tenth amendment.  So what can we do about?  The tenthers have an answer for that too -- it's called nullification.   What the government is doing, the tenthers say, is usurping powers that rightly belong to the states.  So therefore, the states have every right simply to declare the offending laws null and void in their territory.    This has already begun in fact.  Last summer voters in Missouri passed a "Healthcare Freedom Amendment" that attempts to bar health care reform from taking effect in the state.  Similar movements are at work elsewhere.

How dangerous is this?  In the short run, perhaps, not very.  After all, we have nearly 200 years of judicial precedent rejecting the tenther arguments.  The likelihood that the courts would uphold these measures seems pretty small, although with our current Supreme Court, you never know.  But what if the tenthers decide that courts themselves are unconstitutional?  After all, judicial review is also one of those things you won't find explicitly spelled out in the constitution.   Then it becomes a question of enforcement--will the federal government have the power to enforce its laws in states that reject them? 

We've actually been here before.  In 1832 the South Carolina legislature convened a convention to nullify a federal tariff law that was seen as particularly disadvantageous to local interests.  It almost came to civil war.  The state had a militia armed to the teeth and ready to defend its rights, while the federal government had put forth a plan to continue enforcing its nullified tariffs come hell or high water.   It was only some last minute legislation and deft compromise maneuvering that pulled both sides back from the brink.  But it's no accident that South Carolina was the first state to secede from the union in the build-up to the Civil War as well as the scene of the first bloodshed.

The bottom line:  the Tenthers and Nullifiers, whose ideas are well within the mainstream of the Tea Party movement, are most certainly extreme.  Implementing their program would mean the effective dismantling of the power of the state as we know it today.

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