by Timothy Allen
This is not your father’s America. By ‘father’, I don’t mean that man who contributed 50% of your genetic makeup. I’m talking about the Founding Fathers – those men who, in the eighteenth century had separate but united visions for what a country should and could be.
This isn’t it.
Many of our Founding Fathers had a distinct and articulated fear of an over-large, very powerful and controlling central government. Understand that, until that time (and indeed ever since), every country in the history of the world had consisted of a large, centralized source of power. In every case, these governments had become cumbersome, unwieldy, and subject to massive levels of corruption as those in the middle of all that power sought more and subjugated the people to get it.
So what was the solution? Our Founding Fathers were not fools. They weren’t simple, uneducated rubes. Most of them were college – or seminary – educated. They were extremely well-versed in history, politics and philosophy. There were obvious concerns: How do we avoid the seemingly inevitable pull of a large, centralized government, thirst for power, and corruption? How do we keep the power in the hands of the people? How do we create and maintain a government of (all) the people, for (all) the people, and by (all) the people?
The answer seemed simple: we’ll create a document that lists the few things that the federal government is responsible for, and everything else, we will vest in the power of the individual states, which will be closer to the peoples’ control.
Keep it small. Keep it local. Keep it decentralized.
The Tenth Amendment.
It is worth noting that there was disagreement over whether to even have a Bill of Rights, (the first Ten Amendments). But even in the disagreement, it wasn’t over whether there should be a decentralized government, but those who opposed the Bill of Rights thought that the Constitution itself was clear enough without adding the extra ‘clarifiers’ limiting the federal government’s powers.
President Obama is famously quoted as lamenting that “[The] Constitution is a charter of negative liberties.” He further says that it lists what the states and federal government can’t do to you, but doesn’t say what they must do on your behalf.
Mr. President, that was precisely the point. It was to be up to the individual states to decide what they would do on behalf of their citizens. For example; if Virginia wanted to be a socialist welfare-haven and promise to do much for its citizenry, that was for the people to put in their state constitution, and if Massachusetts wanted to be a cold, hard, no-benefits, small-government state, that was for the people to put in their state constitution.
The power to do either was in the Tenth Amendment.
The power to do either rested in the hands of the people who lived in those states and who would have to abide by the decisions of their state politicians. These state politicians were their neighbors, shopkeepers, and friends, not some distant politicians from another state making decisions to affect the entire Union. Think of it: where does your senator to Congress live? Do you think you could walk over to his or her house for lunch one day? What about one of your state representatives? Might it be easier to arrange a sit-down with them over Starbucks? The possibilities for such a locally-controlled, yet national government were breathtaking, and thus, our Founding Fathers built a Constitution which strictly limited the federal government, and then, using the Tenth Amendment, they vastly empowered the state governments.
So what happened? How did we end up with the opposite paradigm?
Unfortunately, the Supreme Court takes much of the blame for the heavy-handed federal shaping of our country today. It would be easy to try to blame federal-centric politicians for the moves they made, but it was only in the nature of man that they sought that power in the first place. Under the guise of the Commerce Clause, the Supreme Court allowed the federal government to begin heaping to itself more and more power and responsibility over the significant operation of this country, leaving less for the states. Even to this day, the evil of the early interpretations of the Commerce Clause reach out to control the lives of individual Americans in every corner of the nation.
If the Tenth Amendment had been properly applied in the early 19th Century to tamp down federal overreach through the Commerce Clause and the Tax and Spending clauses, your state would be the focus of your political and government reality, and you would have greater control over the issues that directly affect your life. Instead, our reality is that we turn to Washington DC for the “big issues,” and in most cases, turning to Washington DC means turning many hundreds or thousands of miles away to people who can barely be bothered to respond to you with a form letter or robo call.
This is not your Father’s America.
We are left to wonder and dream at a country built of truly localized control. Where the Tenth Amendment was taken at face value, rather than given lip-service, and allowing the citizens of each individual state to take and do all for themselves that needed to be done. And if all that has been proposed here frightens you, ask yourself ‘if the tax scheme were reversed between the feds and the states (you paid significantly more tax to your state and less to the federal government), what is it that the fed does that the states couldn’t do in fifty smaller, personalized chunks?’ Should Alabamians be subsidizing the healthcare choices of Californians and vice versa? Should Oregonians be paying tax dollars to provide social services for Floridians? I submit that the Tenth Amendment was crafted, in part, to prevent just that.
To wit, the Tenth Amendment has been making a slow, shy, but heartfelt comeback in the last decade, as some states appeal to its power to uphold some of their latest innovations and changes. For example, in the marriage debate sweeping the nation, the states have demanded, and the courts have agreed, that it is a matter best left up to the individual states. Even though an argument could be made (less reaching than the one made to support the Healthcare Mandate), that marriage affects interstate commerce, it is not a federal issue. Also, in education, more states are pushing back against the federal/state scheme that has dominated the landscape thus far when it comes to the issue of school choice. The U.S. Department of Education has never been responsible for educating a single child in this country, and since its formation in 1979 under President Jimmy Carter, educational outcomes in all fifty states have gone nowhere but down. But states have been demanding more say in how their school systems will run and what schemes (vouchers, tax credits, etc.) will fund them. The Supreme Court, in deference to the Tenth Amendment, is allowing these changes, so long as the states are willing to live with the usual federal response of cutting some purse strings.
Commerce. The love of money. That’s what started this whole mess. Realizing this fact may well take us out of the mess and restore sanity, local control, and a glimmering semblance of your father’s America.
Timothy is a third-year law student at Arizona State University and a commissioned Blackstone Fellow. He lives in Mesa Arizona with his wife and two children.