The "Tenther" Smear

The American Prospect, The New Republic, and other left-of-center outlets are pushing the "Tenther" smear, aimed at lumping those who, horrors!, still take seriously the Tenth Amendment to the U.S. Constitution in with the Obama birth certificate deniers and 9/11 truthers.

It's such a transparent attempt at marginalizing the other side (mostly with respect to the health care issue) it seems almost a waste of time addressing. But one might start by pointing out that unlike any convincing evidence that Obama isn't a U.S. citizen, or proof that the Bush administration orchestrated the September 11 attacks, the Tenth Amendment actually exists. You can actually go to the National Archives and read it. There's also a historical record of its drafting and ratification. Really.

There's really no consistent principle or cogent argument underlying the Tenth Amendment smearers. The smarmy sentiment seems to be little more than that "Tenthers" are silly because all serious people stopped giving a damn about the Tenth Amendment years ago. Consider this passage from The American Prospect's Ian Millhiser:

More important, there is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance.

God forbid we let the Constitution get in the way of something popular. Ken at the Popehat blog responds:

This is transcendentally silly and almost perfectly Orwellian. It’s authoritarian to believe that central government authority should be strictly limited to the enumerated powers in the Constitution? It’s authoritarian to limit the government from doing things when those things are “wildly popular”? That sounds to me like the essence of anti-authoritarian constitutional government. Millhiser sneers that conservatives pushing for courts to interpret the Tenth Amendment meaningfully are contradicting their standard rhetoric about “judicial activitsm.” Whether or not that is true (and that’s an entirely different post), Millhiser is unconsciously echoing decades of authoritarian, pro-”law-and-order”, pro-censorship rhetoric from the far right. Millhiser sounds exactly like the folks who thought it was authoritarian to, for instance, overturn extremely popular flag-burning laws under the First Amendment.

I'd add that it was the Supreme Court's five most liberal justices—plus Justice Scalia—who ruled that the federal government could impose its own drug control laws on the states, even where the states' voters had expressed a desire to allow sick people to smoke medical marijuana. They couldn't even find in the Tenth Amendment (or for that matter, the Ninth) a state power to allow a dying woman to grow a few plants in her own basement for her own use if doing so would contradict federal drug policy.

It is true (and unfortunate) that the Tenth Amendment, "states' rights" mantra (a misnomer for federalism—governments don't have rights, only powers) has over the course of U.S. history been appropriated by slavery and segregation apologists. Of course, that's why we have the Thirteenth and Fourteenth Amendments.

The smearers are right in one respect. Tenth Amendment supporters need to harbor a sort of quaint detachment from political reality to still seriously advocate that the federal government roll back to its constitutional limitations. That cat has far outgrown its bag. And to be fair, most of the Republicans invoking the amendment on the stump today had no problem with a leviathan federal government during the Bush years.

Still, that doesn't mean they're wrong, now. Or crazy. It's a daft sort of logic: Reading an explicitly worded amendment to the Constitution as it was written puts you in company with 9/11 conspiracists, while the serious, non-crazy, mainstream position is simply picking and choosing those portions of the Constitution you find agreeable.

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  • Barney Frank||

    I'm getting tenther by the week.

  • WWJGD||

    I think it's official. We've collectively lost our fucking minds as a nation.

  • ||

    And, of course, the name is explicitly a reference to the various sects of Islam (given nicknames because of differences in who they believe is the Xth imam.) It seems to me a bit odd to try to adopt that term as an insult.

    I just read it again and can't see how he gets "authoritarian" out of that. Ramesh Ponnuru makes the same argument about the First Amendment here.

  • Nipplemancer||

    shall we call newsies Firsters since they insist on a free press?

  • Attorney||

    More important, there is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance.

    Does this idiot have even the slightest idea of what a constitution is?

  • Jonas||

    @WWJGD:
    Collectively?
    How libertarian of you.







    (drink)

  • ||

    So, lemme get this straight:

    A government of limited enumerated powers is authoritarian?

  • ||

    shall we call newsies Firsters since they insist on a free press?

    Maybe the ones who are against McCain-Feingold and the pending newspaper bailout... all 10 or 12 of them.

  • ||

    Shut your neck, Lonewacko.

  • dennis||

    Either the constitution allows for this state of affairs or it is useless in preventing it. While the whole anarchy - minarchy thing has been rehashed a gajillion times, I would observe that this demonstrates why the idea of limited government is impossible. The likelihood of an orderly peaceful market based anarchic society is greater than the likelihood that limited government will ever materialize, and if it does, be maintained.

  • ||

    R C Dean,

    Why, of course! Limiting the powers of people to force other people to eliminate injustice and inequity is oppressive!

  • Sandy||

    More important, there is something fundamentally authoritarian about the tenther constitution. Dred Scott, slavery, and miscegenation laws are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance.


    FTFY, New Republic.

    Still stand behind it?

  • 24AheadDotCom||

    Quick: someone in DC rush a Snuggie over to Radley Balko. Seeing him whine like this is just making me feel so sad.

    But, seriously, I have trouble feeling any sympathy for him because its sites like this - and their little Beltway friends - that are more than eager to throw around smears like "Birther" or "Truther". But, when an "-er" gets applied to them, they swing into action.

    Meanwhile, not all those called "Birthers" think for a fact that BHO was born outside the U.S. Some make a constitutional argument, and what they say can only be resolved by either a SupremeCourt decision or a large number of respected scholars going on the record and doing so in an intellectually honest fashion. Hacks like those at this site would be perfectly willing to let a "constitutional scholar" like DaveWeigel do their deciding for them.

    Here's a simple test of intellectual integrity. I told Ed Morrissey that what he wrote was directly contradicted by Hawaiian law. He wrote back and said he didn't want to discuss "Birther theories". Who was right?

  • ||

    Well guys, here it is: the constitution is a bit like the British constitution, in that its really an amalgamation of cultural norms and court decisions. The relationship between the de facto constitutional amalgamation and the document called the constitution is like that of a Michael Bay movie and the book it was based on.

    If you apply the principal that any interpretation of the constitution must be internally logically consistent, the de facto constitution would be exposed as the hollow shell it is. Hence the derision; why should Mr. Milhiser take the constitution more seriously than the Justices themselves.

    Con Law made me a very bitter man. It's not even ideological; I just have a hard time respecting intellectual dishonesty, which is rampant when it comes to the constitution.

    And that doesn't exclude libertarians either, mind you. The Founding Fathers weren't libertarians either. They just sound that way to the 20th century ear.

  • Tony||

    But such interpretations of the 10th are not mainstream and don't have much backing in case law. So far it has not been ruled that the 10th amendment nullifies the commerce clause or the necessary and proper clause.

    I wouldn't phrase the "authoritarian" argument in exactly the same way. But it is notable how often libertarians will declare some public good--even something wildly popular and perfectly legal--out of bounds because of some fringe interpretation of the constitution. Why not just say it's a policy you don't like? There's something dishonest about appealing to fringe interpretations of the constitution to oppose something you might otherwise concede is a net benefit for the people.

    If the constitution really restricted the government to the extent you guys say it does, I'd be calling for a constitution that isn't so pathetic and impotent. Luckily the history of 10th amendment jurisprudence hasn't taken your side.

  • ||

    The current crop of "Tenthers" are the same lot who are pushing for federal level Tort Reform and a federal smackdown of state health insurance laws.... (to pollinate cross state sales of health insurance)


    Give me a break - the hypocrisy of "conservatives" is blown open once again...

    Same with old fucking douchebag McCain who wanted a FEDERAL medical marijuana law......

    Every time I visit this goddamned site I am reminded of the douchbaggery of "conservatives".

  • Thomas Reed Powell||

    If you think that you can think about a thing inextricably attached to something else, without thinking of the thing which it is attached to, then you have a legal mind.

  • ||

    ...unfortunately the leftists are correct about the current 'reality' of 10th Amendment the other relics of that ancient parchment.

    - The Supreme Court ignores the written Constitution.

    - Presidents ignore it.

    - Congress ignores it.

    - State governors & legislatures ignore it.

    - Most citizens ignore it.


    It's mostly a dead letter in modern American society.

    Tenthers are indeed an oddball, fringe group minority -- totally out of step with the rest of America.

  • Meta4||

    "Every time I visit this goddamned site I am reminded of the douchbaggery of "conservatives"."

    My dearest, darling cunt face,

    This is NOT a Conservative blog.

    Than is all.

  • Bingo||

    Tony -

    The amendment process of the Constitution allows for enacting those "wildly popular" laws that you mentioned, without stepping outside of the boundaries of the Constitution.

  • Warty||

    Lonewacko, Tony, and Shrike? Dick Hoste needs to put on his robe and wizard hat and summon Underzog and Steve Smith.

    Shut the fuck up, Lonewacko.

  • ||

    Bingo, amendments are racist.

  • ||

    This is NOT a Conservative blog.

    Tell that to the myriad of Rush Limpdick - "King of the Redneck" fans who post here.


    Who the fuck are you, anyway?

    Like Hayek, I hate conservatives.

    Take us on, dipshit.

  • ||

    What a shame he will not be around to watch how Sarah Palin, and her like-minded coterie of paranoiacs, make total fools of themselves in the years ahead.


    I do think it's amusing that TNR used a Sarah Palin reference and use of the term "paranoiacs" in an article poking fun at "birthers" "truthers" and "tenthers" without acknowledging that their former editor was the driving force of an equally ridiculous conspiracy theory.

    It makes a certain logical sense though. If the main goal is the pursuit of near unlimited power for folks of a similar mindset to yourself, there really is no reason to mention how your side often exhibits the same qualities you criticize from others. It wouldn't actually make any sense to do so.

  • STEVE SMITH||

    KAZAAM! BEHOLD, I HAVE BEEN INVOKED, AND THUS I APPEAR!

    "TENTHERS" ARE TRANSPARENTLY RACIST! APPEALING TO THE TENTH AMENDMENT IS AN UNSUBTLE WAY TO GET US BACK INTO THE DAYS OF BLACK SUBJUGATION!

    AND NOW, MY WIZARD-LETS, I MUST VANISH, FOR THERE IS RAPING YET TO BE DONE! ALL I KNOW IS 'BALL', AND 'GOOD'.....AND RAPE!

  • ||

    Authoritarian?

    I guess the so-called liberal intellectuals at the New Republic don't own a dictionary or even have access to one on the interwebs.


    Sometimes the stupidity of some people is just so baffling. I guess this is along the line of the DHS memo that stated people who believe in the Constitution or carry copies of the Constitution and/or Bill of Rights are potential terrorists.

  • The Angry Optimist||

    It's authoritarian to believe that central government authority should be strictly limited to the enumerated powers in the Constitution?



    You guys think they aren't serious about this? This was the argument MNG was making the other day against prolefeed's suggestion that we have supermajorities: any limiting of bare-majority democracy, including higher thresholds or the Bill of Rights, is "rule" by the "authoritarian minority".

  • hmm||

    I learned to be scared of the "1/5ers" Any guy walking around killing a 1/5 of anything short of coolaid is the guy you avoid.

  • hmm||

    "King of the Redneck" fans who post here.

    That's Captain King of the Redneck to you. You fucktard.

  • ||

    From now on, we should refer to it as the "so-called tenth amendment".

  • ||

    You said rape twice.

  • ||

    Yeah, I like rape.

  • Tony||

    Well, it would be authoritarian to claim that certain policies (which are otherwise sanctioned by legal precedent) are invalid because God Says So. Arguing for the nullification of most federal laws and agencies--not simply because you oppose them--but because "my fringe interpretation of the 10th amendment says so" is not much better.

  • Fluffy||

    On the "authoritarian" question:

    I have always openly conceded that the best parts of our system of government are the parts that are least democratic. All the enumerated rights are highly undemocratic. "Authoritarian" is the wrong word, obviously - but we need a word for a process by which minorities as small as a single individual can frustrate the will of the majority, and we need to actively point out how that process is good.

    Democracy is fetishized by our political and educational establishments even though it's really just a method, and not even the universal or defining element of our system of government, which includes profoundly undemocratic elements that also happen to be the elements most people connect with the experience of being free.

    But such interpretations of the 10th are not mainstream and don't have much backing in case law.

    That's not the point, really. The mainstream view about the First Amendment, supported by ample case law, is that so-called "obscene" speech is not protected by it. But the text of the Amendment contains no such exception. So if someone wants to take the anti-mainstream view contrary to case law, that position is supported by the primary text, and is therefore more respectable than, say, believing that the Constitution was written by space aliens. The Birther position, OTOH, is not really any more respectable than thinking that Obama was the child of space aliens.

    Lumping Tenthers and Birthers together lumps a minority, but arguable and logical, viewpoint with a crazy and paranoid viewpoint, and that's just dishonest and unfair.

    It's also counterproductive to the goal these TNR types say they favor. The left is running around like bitches who have seen a mouse because the "Teabaggers" scare them so much. The left says it fears violence. Well, if you're going to go out of your way to define every last limited government position as "crazy" and "out of the mainstream" and "not part of acceptable discourse", then don't be surprised if the Teabaggers take you at your heart and start cracking skulls instead. If you tell people that their positions are not welcome in polite political debate, then they will seek alternative methods of advocacy, and the first one on the list generally is "Let's go smash that shit over there, and maybe set it on fire."

  • ||

    That's Captain King of the Redneck to you. You fucktard.

    Yeah, go ahead and tie your party to uneducated high-school "grads" like Limp-dick, Beck and Hannity.

    The GOP is shitting their own nest. Bush was the worst POTUS in 100 years and you double-down on some low-life know-nothings.

    6% of science grads vote GOP (Pew).

    Fuck yourself, pal. No one cares.

  • ||

    I like what Shrike says?
    YES!

  • Fluffy||

    That should read "take you at your word". I really don't know where the word "heart" came from there. Sometimes the strangest words pop into my sentences and I don't know how they got there or what I was thinking of.

  • 24AheadDotCom||

    Of course, what's hilarious about this is that all the "libertarian" intellectual firepower combined can't topple ThinkProgress, a site whose contributors can't seem to write a single sentence without lying, misleading, or engaging in absurdly obvious LogicalFallacies. Seriously: at any point in time, their front page will be full of errors. And, Reason and their buddies are completely flummoxed by them.

    P.S. You can see my posts about them here.

  • The Angry Optimist||

    Fluffy - you mixed "take it to heart" and "take you at your word".

    Other than that, good post.

  • ||

    And, Reason and their buddies are completely flummoxed by them.....


    Much like arguing with the dog both parties leave frustrated.

  • Tony||

    Fluffy,

    I'm not sure I understand your point other than being "things are not done how I would prefer, therefore democracy is overrated."

    The constitution varies in the size of majorities it requires for certain actions, but even those "undemocratic elements" to which you refer are the product, in principle, of democratic consensus. There is nothing that can't be revoked with a large enough majority. Do you see an alternative? It seems to acknowledge that there is nothing magical about a "50%+1" majority, but does acknowledge that the fairest and freest form of governance is one in which things get done via consensus of the people who are party to the system. What are you proposing is the good alternative (benevolent libertarian despotism?)

  • ||

    It's authoritarian to believe that central government authority should be strictly limited to the enumerated powers in the Constitution?

    I've been told by more than one liberal that resisting socialism is "forcing" them to go to the free market for what they need and "forcing" my views on them. Denying them power is an act of aggression against them.

  • ||

    why should Mr. Milhiser take the constitution more seriously than the Justices themselves.

    Because the justices are not separate from the government, but a part thereof, complicit in its reach and takings. As an institution, how is the judiciary any less prone to those step-wise corruptions, both malfeasant and well-meaning, than the executive and legislative? We should take it most seriously, because no wise citizen could ever honestly trust the smallest act or agent of government to do so.


    any limiting of bare-majority democracy, including higher thresholds or the Bill of Rights, is "rule" by the "authoritarian minority".

    Indeed. I think of that every time I see a mixed-race couple. That damned "authoritarian minority". If only we just let that 51% rule the roost...then it would be, "The Jena-who? You mean those uppity negroes they hung?"

    Ah, beautiful democracy. How I long to languish under the fist-in-velvet-glove rule of a plurality of complete idiots.

  • shriek||

    Goddamn ball-swirling cunt Rush Limpdick fanboys! That's all I fucking see when I come to this shitdick teabagging piece of shit site! Fuck all of you pole-smoking rimjob Dittoheads jizzstains!

  • ||

    but we need a word for a process by which minorities as small as a single individual can frustrate the will of the majority, and we need to actively point out how that process is good.

    At one time, that was known as "Constitutional government", sometimes helped along by "judicial review" to protect "individual rights."

    Teddibly old-fashioned, I know.

  • ||

    Fluffy,

    I'm not sure I understand your point


    That, Tony, is abundantly clear.

  • ||

    Healthcare reform is wildly popular???

    Was this Millhiser guy asleep during August? Has he seen the polls on healthcare reform?

  • ||

    I consider myself a tenther, a ninther, an eigther, all the way down, and all the way up. I also understand my views on the consitution are "antiquated", meaning they are antiques, just as the constitution itself is. It's sadly become just a toothless piece of paper, and no longer an organizational structure for our federal government. Lady Liberty weeps.

  • jtuf||

    Granted, they are not a large or representative sample, but the 9/11 truthers I've met lean left of the "left of center outlets".

  • junior||

    Hamilton in Federalist #84. He argues against a bill of rights precisely based on the concept of enumerated powers. Granted...he changed his mind once he gained power, but the original argument was for enumerated powers. Federalist #41 speaks for itself. The text means what it says.

    "I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

  • JB||

    Fucking retarded Leftist fetuses.

  • ||

    Yes, bread and circuses are popular. That's the point of them.

  • ||

    I wonder what I am. I believe that scope of authority granted to congress as limited in Article I, Section 8. So does that make me a 1-8'er? A I8'er? A I.8er?

  • Cliché Bandit||

    shriek | September 21, 2009, 5:57pm | #

    Goddamn ball-swirling cunt Rush Limpdick fanboys! That's all I fucking see when I come to this shitdick teabagging piece of shit site! Fuck all of you pole-smoking rimjob Dittoheads jizzstains!



    Nice to see rational discourse from the more refined and educated realms of the internet.

    Can you spell the van in vanilla?
    Can you spell the straw in strawberry?
    Can you spell the fuck in chocolate?
    - there ain't no fuck in chocolate.

    THATS WHAT I BEEN TRYIN TO TELL YA!!!

  • ||

    They couldn't even find in the Tenth Amendment (or for that matter, the Ninth) a state power to allow a dying woman to grow a few plants in her own basement for her own use if doing so would contradict federal drug policy.

    Raich alone is why it is unlikely that I will ever have any respect for SCOTUS. They took the much justifiably maligned Wickard and actually used that joke of a decision as authority. That is one reason why they don't overrule bad decisions. They might want to use them in the future for each Justice's own end. SCOTUS has no more integrity than your average lobbyist.

  • H. Protagonist||

    Well, now we know what the topic of the week on JournoList was.

  • junior||

    Oh...and what Madison thought later in life is not in question.

    _http://press-pubs.uchicago.edu/founders/documents/a1_8_1s27.html

  • junior||

    And here's a little Jefferson...

    "They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they sole judges of the good or evil, it would be also a power to do whatever evil they please...Certainly no such universal power was meant to be given them. It was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.
    Thomas Jefferson, Opinion on National Bank, 1791
    "

  • ||

    Hey, not all "truthers" are nuts! You can't group them all together either... There's a big difference between saying "Bush did it" and simply wanting a more thorough investigation. Especially when members of the 9/11 commission themselves point out flaws and say they were pressured.

  • MJ||

    "Social Security, Medicare, and health-care reform..."

    That's amusing. A strict interpretation of the tenth amaendment is authoritarian because it would prevent the federal government from imposing universal programs on the entire national population with no option to opt out.

    Mr. Millhiser, "1984" was a warning, not a manual!

  • ||

    It is always a pleasure to visit "Reason" and read the articles and the comments to them. Really, it is and I've been lurking here for several years now enjoying them both.

    Now, however, it seems to be getting closer to what my Dad used to vularly refer to as "crap or get off the pot" time. Without regard to the logical or legal "realities" of the Tenth Amendment, or any of them for that matter, or what our old Illuminatist buddy Hamilton said back when, what do you propose to do about the current denegration of rational - forget the Constitution, try just reason for a bit; a poor pun, I know, but humor me I'm an old vet - the denigration of rational governance accelerated by the present administration? You do all recognize - I hope - that unless there is a society and a polity and an economy that both exist and function, discussions such as occur here and elsewhere about the whichness of what and the whoness of where and how many politicians might fornicate upon the head of pin, are purely exercises in bootless speculation? So what provision is there in your philosophies, Horatios of the left right and elsewhere, for action to preserve the existance of our nation in whatever form? Just a nugatory nuance tossed into this conversation of convivial contenders; a purely rhetorical device and no coherent answer is either envisioned or expected. Thank you.

  • 24AheadDotCom||

    Yes, you can group all Truthers together. In fact, that's what Balko did, and he's just following what his betters do.

    Now, whether he should do that or whether he should be able to distinguish between those who think UFOs were involved and those who think massive incompetence was involved is a topic for another post.

    That other post will be called "AmandaTerkel: IntellectualGiant"

  • Warty||

    Shut the fuck up, Lonewacko.

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  • IceTrey||

    You forgot about the Dualers. Those of us who believe Obama is ineligible to be the POTUS because he was born a British citizen through his father.

    http://naturalborncitizen.wordpress.com/

  • nonPaulogist||

    Hmmmmm. The New Republic smears some liberty-minded folks by associating them with fringe weirdos. That sounds kinda familiar, doesn't it?

    Last time that happened, Reason was joining in the calumny chorus. Why the latter-day moral outrage now?

  • 24AheadDotCom||

    Obviously, IceTrey is new around here.

    Balko didn't "forget" anything; he's just a hackk who's reading what's on the card he was given at a Beltway cocktail party. He can't think for himself, he just reads off the card.

    As for the "dualers", your leader is grossly incompetent (or at least was until recently). The cert issue is the one that the MSM has constantly lied about. Pointing out those lies could be used to force the MSM into covering his issue. He's not smart enough to figure that out. Instead, he or his minions have continually referred to the cert issue as a "red herring", thereby in effect rewarding the MSM and not pressuring them into covering his issue.

  • Nathan A. Stine||

    Point taken on the "tenther" stuff.

    However, the war isn't being waged on the correct battlefield.

    The living document types read the 10th the same as you or I or anyone else. That's not the point. They read Article 1, Section 8 much differently:

    The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States [...]

    "Congress can tax and do anything they think increases the general welfare of the US."

    To regulate commerce ... among the several states ...

    "Congress can regulate anything so long as it, at some point, crosses a state line or might affect anything else that crosses a state line."

    The point isn't really about the 10th Amendment (courts have already ruled it is a truism and that it neither adds nor detracts from any powers granted to the federal government). It's about Article 1.

  • Grummun||


    To regulate commerce ... among the several states ...

    "Congress can regulate anything so long as it, at some point, crosses a state line or might affect anything else that crosses a state line."



    Wrong wrong wrong a million times wrong. Regulate commerce between the states, not between individuals in different states. The feds have the authority to prevent Massachusetts from slapping a tariff on everything from Rhode Island; they do not (should not, at least) have the authority to tell me I can't sell wheat in Indiana.

  • MarkR||

    I find it wholly dishonest for anyone to rely upon the Tenth Amendment in opposing a national health care bill while happily accepting and continuing the status quo with respect to all other federal programs and legislation that is (according to this theory) equally violative of it. This kind of selective desire to enforce the Tenth plainly shows that the argument is one of convenience, not principled conviction.

  • ||

    I wonder if there's a way to get the hard-core religious types on the side of medical marijuana by proposing that marijuana is creature of god, and that to deny its perfection is blasphemous?

    -jcr

  • ||

    Oh, and before I forget: blow it out your ass, lonewhacko.

    -jcr

  • ||

    "The smearers are right in one respect. Tenth Amendment supporters need to harbor a sort of quaint detachment from political reality to still seriously advocate that the federal government roll back to its constitutional limitations. That cat has far outgrown its bag."

    History shows ample precedent for rolling back government. Unfortunately, it is usually done at the point of a gun, and the result is often worse than the thing that is swept away. So the crucial problem, for those of us who love this country and our fellow citizens, is this: How to foment a bloodless revolution, or, should that prove impossible, how to minimize the bloodshed that the fed-up people will wreak, yet end up with some healthy reforms, when all the dust has settled?

    One thing seems certain. Politics as usual is not sustainable. I am hearing a lot of buzz about the idea of tossing out the bums, en masse, starting in 2010. But if such a thing DOESN'T happen by then, I worry that a more violent rebellion will become more likely. I'd like to avoid that if we can, but we clearly cannot keep going as we are. How to promote a better outcome, or is there none better?

  • The Libertarian Guy||

    So, Tony... since you and many others have such a low regardance level for the Tenth Amendment, do tell us how bad it is for us and why we should get rid of it.

    "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."

    Gosh, how *authoritarian*. Of course, "states' rights" is CODE for "gee, wasn't it great when we could forbid interracial marriage and we want that to happen again", and other idiotic variations which are utter bullshit.

    I have actually been told, by many liberals (and even a couple of unhinged rightwingers) that states shouldn't HAVE rights, and this handful of morons agreed on how the Almighty FedGov should dictate everything from foreign policy to how the smallest village deals with their speed limits and dog ordinances. Well, fuck yeah, why not... let's get rid of all those pesky local laws, councils, State Representatives, and just have one big goddamned iron fist clamp down on 300 million people. Why the fuck not.

    Now, mind you, those people were fucking insane. Unfortunately, variations of said fucking insanity do exist - and they're called Republicans and Democrats, for example.

  • The Man||

    Dear James Anderson Merritt,

    Are you familiar with the word treason? Make my day.

    Yours truly,
    The Man

  • Tony||

    So, Tony... since you and many others have such a low regardance level for the Tenth Amendment, do tell us how bad it is for us and why we should get rid of it.



    It's not bad. It's been interpreted as a truism about states being able to keep any rights that haven't been given up. It has little effect on jurisprudence and where it has been dealt with it's called a way to ease the mind, not an addition to language regarding the relationship between states and the fed.


    I have actually been told, by many liberals (and even a couple of unhinged rightwingers) that states shouldn't HAVE rights, and this handful of morons agreed on how the Almighty FedGov should dictate everything from foreign policy to how the smallest village deals with their speed limits and dog ordinances. Well, fuck yeah, why not... let's get rid of all those pesky local laws, councils, State Representatives, and just have one big goddamned iron fist clamp down on 300 million people. Why the fuck not.



    Calm down before you burst something. What's so great about states' rights? Can they not be more oppressive, what with their access to all manners of rights from which the fed is prohibited?

  • jester||

    "states' rights"...a misnomer for federalism-governments don't have rights, only powers


    Federalism was defined for you. Read the article.

  • ||

    Tenther, said the Tensor.
    Tenther, said the Tensor.
    Tension, apprehension and dissension have begun.

  • ||

    "It's authoritarian to believe that central government authority should be strictly limited to the enumerated powers in the Constitution?"

    Yes, it certainly is authoritarian, and for good reasons. Our founders understood the corrupting nature of power and included the 10th to tame and control it. The language is strong because people's lust for power and control is strong.


    Given the zombie army like oppression of big government, I wish the 10th were even MORE authoritarian.

  • ||

    "What's so great about states' rights? Can they not be more oppressive, what with their access to all manners of rights from which the fed is prohibited?"

    Yes, but they are much easier to remediate both in terms of voting out the oppressors and moving away from the problem entirely. That is the point.

  • ||

    > the Obama birth certificate deniers and 9/11 truthers.

    What about the Obama birth certificate truthers and 9/11 deniers?

  • ||

    Perhaps it would be more hip to refer to the 10th Amendment as "Amendment X."

  • Jim Ryan||

    You have to unlink your mind to understand it.

    See, positive liberty is having wealth so I can do things I want to do. If I don't have the dough, I can't do them, making me unfree.

    If you stop the government from running everything - i.e., taking wealth from people who have it and giving it to me - then I end up unfree. Just think positive liberty. Go read Isaiah Berlin on it. He tried to resist it but by the end of the article he accepted it, because of teh humanity.

    So, yes, limiting government power is authoritarian. In other words, I want your wealth.

  • ||

    There's a simple, accurate, and effective counter-smear: Commerce clause uber alles.

  • ||

    And to be fair, most of the Republicans invoking the amendment on the stump today had no problem with a leviathan federal government during the Bush years.

    Huh? You really believe that? Just because you don't see millions out in the streets protesting doesn't mean we support the recent state of government. I have to point this out because I see an awful lot of comments like this, denigrating people without basis.

    I don't think the writers or most of the commentators here realize how little the average republican supports the majority of their representatives.

    As for the point of this post, people are idiots. Tenthers, what nonsense. So there are those of us that read the amendment, and it's history, and wish that we could actually apply it to eliminate offending policies and programs. Most of us actually believe that states holding most of that power provides for a much better system. A system where there will be better results through competition between states, and increased individual freedom through choice. But, yeah, we're fringe wackos.

  • The Libertarian Guy||

    Tony, I present you with the conundrum of states trying to set their own drug policies, only to be shot down by federal law. Or how states have their highway funds held hostage if they don't comply with national speed-limit, motorcycle helmet usage, or setting their own age limits on purchases of alcohol.

    The highway funds part always gets me - that money is taken from the states, but they have to beg and bow and scrape and jump through hoops to get it back.

  • ||

    adding to the highway funding craziness, think about how much of that money, is wasted in the process of taking it, accounting for it, deciding what to do with it, and then holding it over the heads of the states. By the time the states get it back, I'd be willing to bet that at least 25% of it is wasted.

  • Brian O||

    ...yet the tenther constitution would shackle our democracy...

    Hmm. Shackling our democracy is the whole point of the Bill of Rights, and of much of the Constitution. Do statists not get that, or do they just pretend not to get it?

  • ||

    They don't get it. Many people think that the government should be able to do anything that the people want them to do. True Democracy and all that.

  • ||

    Radley: "The smarmy sentiment seems to be little more than that "Tenthers" are silly......"

    It's worse than that! They think the "Tenthers" are dangerous.

    The Dept. of Homeland Security's rightwing extremist watchlist stunningly included "those that are mainly antigovernment, rejecting federal authority in favor of state or local authority."

  • Steve J.||

    Now that we have a Democratic president, it's remarkable that a large number of previously silently Constitutional scholars have decided to speak out.

  • Tony||

    Tony, I present you with the conundrum of states trying to set their own drug policies, only to be shot down by federal law. Or how states have their highway funds held hostage if they don't comply with national speed-limit, motorcycle helmet usage, or setting their own age limits on purchases of alcohol.



    I don't like federal drug policy any more than you do. But I'm not quixotically waiving a constitutional amendment in the air and calling that opposition. It's a policy that needs to be changed. Isn't working for that goal more likely to get results than calling for a novel interpretation of the 10th amendment?

    I don't see what's so nefarious about allocating federal funds according to which states uphold federal standards on various things like highway regulations. The states have an automatic claim on money collected by the federal government? They aren't forced to comply (if they were, that might run afoul of the BoR), they are just being provided an incentive to do so. Maybe it wouldn't seem so much like extortion if a few anti-pork legislators would put their money where their mouths are and stop suckling at the treasury as long as it goes to their own state.

  • Carl||

    Maybe it wouldn't seem so much like extortion if we weren't made to pay interest on money coined by the Federal Reserve Bank which is a privately held interest. Why are we making these scoundrels richer by our sweat and the sweat of our children?

  • ||

    How is it novel to interpret the tenth amendment to mean that unless the constitution gives congress a power, then it is a power of the states or the people? Last I checked, that's what it says. I understand that people pretty much consider it to be meaningless because of the interpretations of the power to tax and provide for welfare, and commerce clauses, but that doesn't make our interpretation novel. It makes our interpretations of the stated powers of congress vastly different. So it's the impact of the tenth, not it's interpretation that is at issue.

  • IceTrey||

    24Ahead

    No, I'm not new. I just find Donofrio's arguments more germane and useful than yours. BTW, you should check his blog again since he is making some headway on the BC issue right now.

  • ||

    Wittle Wadley is having a Tenther Tantrum.

    Boo Hoo Hoo Radley.

    Face it, Rad, you're Orly Taintz without the sex appeal.

  • Jim Treacher||

    convincing evidence that Obama isn't a U.S. citizen



    So it's just naturally assumed that he is. Anyone with any doubts must prove a negative.

  • Jim Treacher||

    P.S. Not just a U.S. citizen. A natural-born U.S. citizen.

  • ||

    Had a conversation about the 10th Amendment with a liberal law school professor yesterday. Her take was the final phrase (after the comma) of the 10th -- reserved ... or to the people -- means the people can, in turn, ascribe those powers to the federal government, effectively gelding the 10th amendment. How can such smart people be so wrong?

  • ||

    While we're at it, let's dump "Freedom of the Press" too.

  • Craig||

    Isn't the "Tenther Constitution" the real one, though? You know, the one with the Bill of Rights, without which several states explicitly stated they wouldn't approve it?

  • Craig||

    But such interpretations of the 10th are not mainstream and don't have much backing in case law. So far it has not been ruled that the 10th amendment nullifies the commerce clause or the necessary and proper clause.

    The 10th Amendment doesn't nullify the commerce clause, as it was written. It was judicial decisions in the 1930s that stretched the commerce clause way beyond its clear meaning and original intent, and violated the 10th Amendment in the process. As an obvious example of judical overreach, it is those commerce clause extensions that should be struck down, not the 10th Amendment.

  • Craig||

    Personally, I wish the "Twelfther" movement had been successful, in proving that Bush and Cheney were constitutionally ineligible to serverule together, because they both lived in Texas at the time of the election.

    The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;

  • ||

    Meyer | September 21, 2009, 5:35pm | #
    You said rape twice.

    He likes rape.

    Oh, and Greg: NICE Alfie Bester paraphrase. Wish I could plus you for that.

  • The Libertarian Guy||

    Tony,

    1. Money is taken FROM the states, who then have to act like circus chimps to get it back.

    2. What "novel interpretation of the 10th Amendment"? It means what it means, though it's been ignored by both major parties for decades, which is the problem you seem to not realize.

  • The Libertarian Guy||

    Forget it, Tony, I had to reread your response to figure out you a) want states to be at the mercy of/have their money held hostage by the Almighty FedGov, and b) you don't get that if the money weren't taken in the first place, states wouldn't have to beg to get it back.

    But, hey, whatever keeps/grows federal-level power, right?

  • ||

    I don't like federal drug policy any more than you do.

    Sucks when you give government all the fucking power, doesn't it?

    This is what we keep trying to tell you, Tony: when you give the government the power to rob your neighbors to give you all you want, you also give it the power to interfere with any private decisions you make. The Nanny state is an abusive parent.

    -jcr

  • The Libertarian Guy||

    Funny for Tony, some of his fellow-traveler Democrats who hold high office, are some of the biggest Drug Worriers around.

    Not so funny for us, though.

  • ||

    Exactly how does one "support, protect, and defend" the Constitution by pretending that parts of it don't exist? That's a question I would ask John McCain, among others.

  • ||

    People hold up the tenth amendment to protect their right to be left alone to buy private insurance. AUTHORITARIANS!

    You can't make this stuff up... ah leftist...

  • The Libertarian Guy||

    Dean, you're right on there. McCain/Feingold, alone, would have prevented Grumpy Ol' John from lying his ass off had he wound up taking the oath of office this January.

  • Jack McHugh||

    Of course GOP pols love this 10th Amendment stuff because it distracts the base from their misdeeds, and allows them to posture without having to do anything except pass meaningless resolutions. These lefties are off track, however, because it's bipartisan posturing.

    For example, last week the Republican-run Michigan state Senate passed its own eye-candy resolution on this. The vote was 31-0, with all the Dems who were present voting "yes." (Two Dems and two Repubs were absent.)

    Vote details here: http://www.michiganvotes.org/RollCall.aspx?ID=420804

  • Carl||

    Well that line in the 10th ammendment must mean something. So why is in there, so we can black it out with magic marker? No, I didn't think so.

    This is a question of balance. The Bill of Rights was invented to keep the Federal Government from becoming too powerful. It is too powerful now.

  • wizard of oz books||

    With many new announcement about the wizard of oz movies in the news, you might want to consider starting to obtain Wizard of Oz book series either as collectible or investment at RareOzBooks.com.

  • mbt||

    hi,
    everybody, take your time and a little bit.sfhfsyjdrj

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