November 28, 2010

Bankrupting the Tenth Amendment

Every school child learns, or at least they did back in my days of grammar school, about the first ten amendments to the Constitution. Everyone knows, or at least should know, that these amendments taken together are called "The Bill of Rights." They represent ten ideas so important that the Founders passed them as immediate amendments to the Constitution to make them explicit rather than rely on the belief that the rights they protected were inherently safe from the government they had created.


Some of these amendments seem to matter more to some people than others, and some I think are hardly considered at all. 

The First Amendment is probably the Big One. it certainly gets the most play from the media, because it has direct meaning for and impact on them. And it being the "holiday season" it will certainly be the amendment of foremost importance to the ninnies who fall to pieces if there is any sort official acknowledgement of Christmas.

The Second Amendment gets a fair amount of play as a topic for debate over just what it means and who has the right to bear arms and just how much the government can get away with limiting that right.

The Third Amendment? I doubt the average American citizen could tell you what the Third Amendment is about without using Google. To refresh our memories:

No Soldier shall, in time of peace be quartered in any house without the consent of the Owner, nor in time of war but in a manner to be prescribed by law.

On the surface it seems rather anachronistic in the early 21st Century. And when considered in the context of the modern military it seems rather more like a human appendix than a meaningful amendment. However if you look at again you will see that it imposes on the federal government the obligation to recognize the authority of an individual property owner. Power that individual has over the federal government and the military. That is not an insignificant thing. It is a shame that the Third has become one of the forgotten amendments.

The Fourth Amendment certainly gets a lot of attention - even if people don't know it. If you've ever watched a cop show on TV and heard the copes talking about having enough evidence to get a warrant, you've seen the Fourth Amendment dramatized. If you've ever watched a legal drama in which important evidence was thrown out of court because of an illegal search, you've seen the Fourth Amendment dramatized. Many people, thanks to the saturation of Law & Order re-runs, probably know more about the Fourth Amendment than they think they do.

Most people know a little bit about the Fifth Amendment. Again probably from television and movies they are familiar with "pleading the Fifth" and probably have some understanding of the idea of double jeopardy and due process.

I wonder how many know much about the "Takings Clause" that reads "nor shall private property be taken for public use, without just compensation." I bet a few more people learned about it after the Kelo decision. You combine that with the forgotten Third Amendment and you get a pretty strong Constitutional defense for private property.

Amendments six, seven and eight are probably known in general but not in specifics. Many people can probably tell you that the Constitution prohibits Cruel and Unusual Punishment but probably can't tell you that this language is in the Eighth Amendment. They probably know about the Constitutional requirements for a speedy and public trial by jury, but couldn't tell you where to find that language. 

I guess that's O.K. not great that many probably have little familiarity with the document, but at least they know the concepts.

What is truly tragic is the extent to which We the People and America as a nation, seem to have completely forgotten the last two of the amendments that make up the Bill of Rights.

The Ninth Amendment reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This is the amendment you need to remember whenever you hear someone use the phrase "rights granted under the Constitution." The Ninth really ties the Constitution and the Bill of Rights to the language in the Declaration of Independence:

We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

The Ninth Amendment is there to remind the government that an individual's rights are theirs. They exist in the individual and are not a grant from the government.

If the left wants to understand what motivates the Tea Party, they could do worse than spend a little time pondering the Ninth Amendment.

Which brings us at last to the subject of this post, the Tenth Amendment.

But before I delve into that I have to say that one nit at which I must pick with the otherwise brilliant men who founded this nation, is the order in which they listed these Ten Amendments. I truly think that if they had begun with the Ninth and Tenth, individual liberty would have suffered a good deal less in the intervening centuries.

The Tenth Amendment to the Constitution reads:

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.

For anyone who has ever heard someone utter the phrase Constitutionally Limited Government and wondered exactly what it meant, read the Tenth Amendment again.

The Tenth Amendment clearly spells out that the people and the states delegate certain specific powers to the federal government and only those certain specific powers and they retain all others to themselves.

The Tenth is a line in the sand that says the Federal Government can go this far and no further. Is it any wonder that it the one amendment that is most consistently and systematically ignored by the federal government?

Of course the Tenth does have something of a bad reputation. It is often shorthanded as "States Rights," which is tied to the historical Democratic Party's defense of slavery and segregation. If you start talking about powers reserved for the states you are likely to find yourself labeled a racist.

The Federal Government long ago ceased to operate on the premise that it was an entity with limited powers, and the states,the courts and the people have unfortunately gone along. The approaching fiscal crisis in several states presents yet another opportunity for the federal government to further obliterate the Tenth Amendment and erase the concept of a Constitutionally Limited Government.

Several states are facing financial crisis due to underfunded pension obligations and decades of overspending. Most notable is the state of California; not only the largest state but also the one with the biggest fiscal problems. What will happen if things continue to deteriorate to the point where the state of California can no longer meet its financial obligations? For an individual or a corporation that would mean bankruptcy, for a state that would likely mean some sort of Federal bailout or bailout/bankruptcy hybrid.

One thing it will almost certainly mean is massive amounts of Federal money. And Federal money comes with strings attached. Whether in fact or effect, it would likely mean the end of sovereignty for the state and almost if not total federal control. The line in the sand drawn by the Tenth Amendment would cease to exist even to the very minimal level it does today.

"A republic, madam, if you can keep it."
Benjamin Franklin

Posted by: Stephen Macklin at 03:51 PM | No Comments | Add Comment


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