Pleading the 10th

Note: A version of this article was published in the July 2011 issue of Tea Party Review magazine.

What if the federal government issued an order, and nobody obeyed?

More and more, it’s happening across the country.

The most apparent example is the state pushback on the individual mandate for citizens to purchase health insurance, a cornerstone of the Patient Protection and Affordable Care Act, popularly known as Obamacare. As of this writing, 27 states, more than half of the Union, are suing the federal government for attempting to force Americans to purchase a product or service against their will.

In addition to suing the government, some states have enacted laws to prevent the implementation of some or all aspects of Obamacare.

Many states, emboldened by Arizona’s tough stance against illegal immigration and frustrated by federal inaction in this area, are passing immigration laws of their own without regard for the federal government’s admonition that they can’t enact such legislation.

Most recently, Indiana passed a law to defund Planned Parenthood, the nation’s largest abortion provider. Despite the Obama Administration’s threat to cut off the federal contribution to Indiana’s Medicaid program altogether unless the funding is restored, Indiana’s government says it intends to enforce the law. Other states are considering similar bills.

Increasingly, as the Tea Party movement exhorts and educates the people on individual liberty, free markets, and limited constitutional government, and elects men and women who embrace these goals, we are seeing a backlash by the states against heavy-handed dictates from the federal government.

In my opinion, this is an encouraging development, because it brings us back to the spirit and intent of the founders when they wrote our Constitution and Bill of Rights.

America is unique as a nation because it was constructed around an idea, and built from the ground up. Those who settled here were seeking liberty, whether it was the Puritans, Quakers, and Catholics who migrated to New England, Pennsylvania, and Maryland respectively for religious freedom, or the Dutch, Swedes, Germans, Irish, English and other peoples of Europe who claim seeking land to call their own and the right to govern themselves.

Benjamin Franklin noted that private property distinguished the American settlers from their oppressed brethren in Europe, and noted that each who owned the means of their subsistence “has a Vote in public Affairs, lives in a tidy, warm House, has plenty of good Food and Fuel, with whole clothes from Head to Foot, the Manufacture perhaps of his own family.”

As author Walter Lippman wrote, "Private property was the original source of freedom. It still is its main bulwark."

From these settlements of private property owners grew colonies, which became states and which formed the alliance described in the Declaration of Independence as “these United States of America.”

The Treaty of Paris, which formally ended the American Revolution, declared that Great Britain no longer held claim to the “free sovereign and independent states” that comprised the United States of America. This language made clear that the states were the preexisting and preeminent jurisdiction within the confederation known as the United States of America.

It was the states which granted limited authority to the federal government through the Articles of Confederation, in which it was written, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

It was also the states which authorized the stronger central government established by the Constitution of the United States. They did not, however, consider this more robust federal government to be sovereign over the will of the people and the states.

They placed limits on federal power by enumerating its duties, limiting the authority of taxation to the execution of those duties, and creating a Bill of Rights to ensure that the liberty of individuals and the states were protected.

The Tenth Amendment to the Bill of Rights was thought by some in the Constitutional Convention to be unnecessary, given the Constitution’s enumerated powers, but the states demanded the language nonetheless because of their distrust of the federal government and its potential for suppressing liberty:

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it. ~ James Madison

Thus the Tenth Amendment was included, and its language was deliberately unambiguous so as to avoid misinterpretation:

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.

Power concentrated in the hands of a few ultimately corrupts, however, and our nation’s history has seen a gradual erosion of state sovereignty and a corresponding increase in federal government control.

Moreover, the concept codified by the 10th Amendment of federalism (or, more accurately, dual federalism), in which the states and the federal government were equal partners in governance, was deeply stained by the institutions of slavery and legal discrimination.

The states of the South wrapped those odious violations of man’s liberty in the banner of “states’ rights,” and the phrase has a negative connotation to this day, especially in the black community. Gary Bledsoe, president of the Texas chapter of the NAACP, speaks of the mindset of most blacks toward calls for greater state sovereignty:

I realize it was the federal government that freed my ancestors. It was the federal government that got rid of Jim Crow. It was the federal government that seeks to protect my right to vote. So these things are really sacrosanct. So that states' rights thing does have a really negative connotation.

It is admittedly a barrier to greater participation by some groups in the Tea Party movement, which passionately advocates a return to states’ rights, although with uncompromising adherence to protecting the life, liberty and property of each individual citizen.

For that reason alone, I refrain from using that phrase, preferring the term ‘federalism.’ Ken Emanuelson of the Dallas Tea Party stresses the value of using less provocative language to describe our laudatory goals:

I don't think for a minute that the governor [Texas governor Rick Perry, a leading advocate of federalism] and a lot of people who are using that term have any ill intent. But it is a little tone-deaf and may be a lot tone-deaf. There are terms that maybe aren't as broadly used, terms like 'federalism' and 'decentralization,' that mean the same thing.

So although we must proceed with caution and sensitivity, proceed we must if we are to restore the balance of liberty in our republic. The legislative actions I cited above are but a few either in progress or actually implemented to push back against federal mandates outside of their constitutional prerogatives.

Fourteen states have passed “10th Amendment resolutions” to reassert their sovereignty. Issues as diverse as national identification cards, immigration enforcement, gun owners’ rights, intrastate commerce, environmental regulations and medical marijuana are being addressed as 10th Amendment issues.

At the end of the day, when faced with a federal government that is insistent on pursuing a path to socialism, the states are left with little recourse other than the power to just say no.

A movie quote from the character Jean-Luc Picard, captain of the starship Enterprise, in Star Trek: First Contact, best captures the Tea Party movement’s passion for change:

We've made too many compromises already, too many retreats. They invade our space and we fall back. They assimilate entire worlds and we fall back. Not again. The line must be drawn here! This far, no farther!"