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.