Friday, April 17, 2009
[EXECUTIVE SUMMARY: The Tenth Amendment in effect was a slavery amendment. It was superceded en toto by the Fourteenth... but many conservatives who think they support "Tenth Amendment" stuff don't realize that they're actually laying the groundwork for neosecessionism. The Tenth Amendment is as dead as Prohibitionism and we should not try to resurrect it.]
We have word that Rick Perry, Governor of Texas, in an act of unutterable political stupidity, revealed on Tax Day his support for the “sovereignty” of Texas under the Tenth Amendment and warns that secession may be the way to avoid the latest left wing moonbattery eminating from Washington.
Worse, a survey finds that some 75% of the state of Texas disagrees with him--which means that 25% agrees.
That's 24.995% too high.
Many don’t understand how one can be a conservative and hate the Tenth Amendment. However, most of us do not see the terrible evil behind the Tenth Amendment revivalist mask. In its sudden respectability, this Catcher in the Rye sees a lot of misguided conservatives running headlong toward a cliff.
I am a Federalist. Not a member of the Federalist Society (which is anything BUT Federalist!) but a Madisonian Federalist, i.e., I believe that, like it or not, the Federal Government is supreme over the states. The states have their place and their function, but they are NOT embryonic republics and we who live in them owe our central and primary loyalty not to "the Wolverine State" or wherever we happen to live, but to the United States of America.
I shudder at the thought of a revived Tenth Amendment: not merely at the political imbecility of coming out and effectively advocating secessionism, but also at the fear that secessionism may suddenly become respectable for the first time since Appomattox--and that everyone else will be so put off by this that we lose any credibility.
WHY IS THERE A TENTH AMENDMENT AT ALL?
Briefly put, the Constitution was not a done deal when it was put forth to the States for ratification after the "Miracle in Philadelphia." The fact is, when it came out, the States hated it. A number of leading non-attendees, like George Clinton and Governeur Morris, were immediately opposed to it, because they knew that meant that the 'Spirit of 76' which gave them such power and lattitude as State officials would be undermined and ultimately eliminated by a new strong central government that they feared would become as oppressive as the late Kingdom of George III.
Many Americans don't know what the Spirit of '76 really was, other than the name of an airplane or ship or something. There was a temporary nationalist mood in 1775 and 1776, as the crisis with the King came to a head, rejecting all authority from far away--a sort of a local-nationalist craze. Think of it as the political equivalent of the initial falling-in-love of an adolescent couple very recently eloped from authoritarian parents. But the Spirit of '76 national 'mood' was, if established as a ruling principle, directly inimical to the establishment of a central Federal authority to rule the States. The people in '76 didn't want to be ruled by anybody other than themselves.
Some of our constitutionalist visionaries saw the problems with this right away, and smelled endless civil war after the British would be defeated. Furthermore, it manifested itself during the Revolutionary War with the ridiculous supply problems that the Continental Army suffered under Washington. These supply problems were what made Old George a federalist, perhaps the ur-Federalist, because he saw his men needlessly die because nobody could make Georgia or the Carolinas or whoever cough up their fair share to pay the troops and get them decent blankets and sufficient weaponry with which to fight.
On the other hands, there had to be something to check local state-generated tyranny as well, some way to get the states' bureaucrats from being unchallengeably oppressive. (Best line from Mel Gibson's The Patriot illustrates this problem very well: "Why should I trade one tyrant 3000 miles away for 3000 tyrants one mile away?")
These visionaries, Madison first and foremost, but also Washington, Hamilton, Jay, John Adams Sr, etc., saw that a national government had to ride herd over the states. But how to sell it to the locals (and the localists)?
As the Constitution, initially sans Amendments, was published, many saw that there were threats to the local way of doing business; many already had a vested interest in keeping the States in control and the old Articles of Confederation in place .... and so there were a number of cries for modifications to the Constitution. Some thought that the Con-Con should reconvene and modify the text, but that proved impossible to engineer. Amendments were therefore the answer.
There were, as is rarely now remembered, actually twelve amendments to the Bill of Rights. The original Ten, plus two more: one that mandated that Congress doesn't get its pay raise until an election intervenes (eventually passed as the Twenty Seventh Amendment in 1992!) and the other requiring one Congressman for 35,000 people (which would give us a House of Representatives of over 10,000 members! Blecch!).
But it was the Slave States, which eternally feared Northern efforts to mandate slavery abolition, that mandated that they be given the final word and final call: hence what we call the Tenth Amendment was included in the Bill of Rights. They would not swallow it without a guarantee that the States could ultimately veto the Federal government. So the Tenth was included to make the southern slavers feel better about the whole business.
You see above the famous cartoon, "Join, or Die”. Metaphorically what happened was this: the parts of the Snake joined to fight John Bull, but having won, found that the connection between the parts was very weak and the parts of the snake threatened to split again. Thus was created an Egg, the Constitution, which would join the parts permanently. To swallow that Egg, they needed to cover it with 'snake saliva', the Bill of Rights, as a lubricant to allow the egg to go down and be digested. The Slavery issue mandated that that lubricant include a taste of venom: the Tenth Amendment.
The snake survived and grew strong, but the poisons remained. Later, as a nearly full-grown python, it needed to be bled to remove the accumulated poisons caused by Tenth Amendment localism (and of course slavery).
The guns aimed at Ft. Sumter were lit by the righteous flame of the Fire-Eaters: that is, the partisans of the Tenth Amendment, who felt that the states eternally be supreme to the Federal government.
The rest is history of course; our federal forces won the day. But to seal the deal, once the war ended, the Fourteenth Amendment was passed to establish the reality that no state can trump federal power in the Constitution itself. And so it was; the wording of the Fourteenth Amendment mandated that each of the original amendments of the Bill Of Rights–other than the Tenth–be operative over the states as well as the federal government. The Tenth was left, as intended, a dead letter, as inoperative as the Eighteenth (prohibition) Amendment was by the Twenty First (Repeal).
You can now see why I want to hold up a cross to a vampirically resurrected Tenth Amendment. It needs a stake through its heart. Really.
WHAT IS THE FOURTEENTH AMENDMENT ABOUT?
The men who wrote the Fourteenth Amendment were excellent lawyers who knew precisely what they were doing: the Federal government is supreme and must BE supreme if we are to survive as a single nation instead of a temporary, polyglot empire. By being worded the way it was, it absolutely put a stake in the heart of the Tenth Amendment. Washington's, Madison’s, and the Founders' vision was NOT a states-rights federation but a federally supreme national state where the states MUST be secondary to the national authority. A clear reading of the Federalist Papers can reveal no other way of looking at it.
But: secondary does NOT mean meaningless! Subsidiarity is a good Catholic concept here. Federal powers to where Federal powers belong, State powers for the next level down, city ordinances for the cities. I do not advocate a unitary state, or gleichschaltung, or anything like that... but someone has to have the final word, and in our nation, since Appomattox, that final word has been in Washington and must be no where else!
The Tenth Amendment was tagged on to the end of the Bill of Rights to get the States to pass the original Constitution. But it is a vestige of that original period of ratification and is now a supremely dead letter by direct operation of the Fourteenth, which makes the U.S. Constitution supreme over the states without question.
To advocate revival of the Tenth means suppression of the Fourteenth--and all evils that must follow if the Fourteenth is dead. That would entail, inter alia, making the rest of the Bill of Rights suddenly NOT applicable to the States, giving the States the power to censor, establish Churches, negate gun ownership rights, etc etc, and rendering the rest of the BoR on the Federal government only. This Is A Bad Thing.
In addition, if we make a big thing out of "Tenth Amendment states rights", that means that when (as we eventually will) we DO eventually take power back in Washington the leftists will then seize it as an issue to push THEIR secessionist agenda which--with the Hispanic states in Democrat hands--is far more likely to be pushed forward. You'll be shocked as to how respectable Jefferson Davis will become to the Left once a President Palin equivalent is sworn in.
(I can hear the next question: "What about abortion? Can't the individual states individually ban abortion? Shouldn't it be a state issue?" No. Abortion must be banned EVERYWHERE AT ONCE SIMULTANEOUSLY ON THE FEDERAL LEVEL WITHOUT EXCEPTION (and without apology!), which requires that Tenth Amendment States Rights madness not be recognized as law. The humanity of the unborn--the Unalienable Right to Life Endowed by Our Creator--is not and must not be subject to the whims of state legislatures or gods in black or white, otherwise the prochoicers are right--it's an option subject to the whims of the mob, not the absolute and universal moral requirement we know it to be, much as the prohibition of slavery is univeral and must apply everywhere. A slave-state Union today would be intolerable; so must an abortion-State Union become intolerable.)
But we must not destroy the Constitution in order to save it, and/or the children.
We must break the back of prenatal exterminationism, but we must not advocate the destruction of the Constitution in the process, for that would eventually turn us, the defenders of life, into traitors against the Constitution and allow the forces of darkness (the real ones) to destroy us on those grounds.
"Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh."
Abe Lincoln. Smart man. (Shot in the back. Very sad.)
And as for me as regards Tenth Amendment revivalism: include me out!
Posted by (c)2014 Richard L. Kent, Esq. (MichiganSilverback at gmail dot com) at 10:20 PM