Legal Feature


Power Grab Mocks Amendment



March 21, 2006

BY CLAUDINE L. FERRELL
From the Freelance Star

My brother, who has spent more than three decades with the Air Force as either an officer or a civilian employee, bristles at most of the criticism of the federal government's response to Hurricane Katrina. He is a political and social conservative who cannot understand why people expect the national government or the military to do the job of mayors and governors and local police.

Why, my brother asks, did the mayor of New Orleans blame the federal government when he did not use school buses to help evacuate his city's residents?

To a large degree, my brother's take on state responsibilities reflects the position of the Tenth Amendment: "The powers not delegated to the United States (i.e., the national government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Over the nation's history, the amendment - designed in the early 1790s to prevent a strengthened national government from becoming too strong - has been invoked to limit Congress and the president. But how much should their power be restricted considering the needs of the country, the limited ability of states to handle certain problems and the vagueness of various constitutional provisions defining the powers of the national government?

Since at least the 1930s, Democrats have seen a need for more national power while Republicans have, at least in theory, largely shared the fears of Founding Father Thomas Jefferson, among others, that a national government could be a danger to individual liberties.

Nevertheless, both political parties have used the national government in violation of a strict interpretation of the Tenth Amendment, and both have played a role in the drift to what departing U.S. Supreme Court Justice Sandra Day O'Connor fears: "Congress will nibble away at state sovereignty, bit by bit, until someday essentially nothing is left but a gutted shell."

"MOCKERY OF FEDERALISM"

Thanks in large part to an economic depression, two world wars and the Cold War, the powers of the national government have grown over the last century even into areas clearly accepted as state provinces. To the frustration of Tenth Amendment purists, the national government has moved into such areas as public housing, gun control, voter registration, education and marriage.

The result, according to syndicated columnist George Will, is "a mockery of federalism." The national government determines such "local" issues as the speed limit on state highways. It does not claim the power to set speed limits within states: it merely tells the states that if they want federal funds for highway construction and maintenance, they need to post federally approved speed limits.

To the states' frustration - whether or not the Tenth Amendment guides their thinking - obeying such federal mandates comes with the expenditure of state and local funds, with a bureaucracy, and with unclear divisions of responsibilities.

"Violations" of the Tenth Amendment cited by its defenders include such entrenched aspects of modern American society as Social Security, Medicare, nationally funded student loans and farm subsidies. If presidents and Congress have "gutted" the Tenth Amendment as claimed, then millions of Americans would probably accept the gutting, at least when their educations, safety, incomes and retirements are at stake.

Governors and legislators have protested against the growth of federal power, even warning of revolution if trends continue and demanding that the national government "cease and desist" its "master-servant relationship" with the states. The Republican Governors Association issued a "declaration of independence" for the states, and over a dozen states have passed resolutions demanding a more traditional (read "limited") role for the national government.

States have also sought to prevent "unconstitutional" federal action by increasing their own activities - better they act than the national government - in such areas as charter schools and school vouchers, sentencing requirements for convicted felons, public campaign financing, benefits for unmarried partners and homosexual marriage. Decisions by the states are, in theory, close to the citizenry and thus better able to ensure a government "of the people, by the people, and for the people."

HAVING IT BOTH WAYS

In some cases, however, states want to have it all. Three weeks after Hurricane Katrina hit the Gulf Coast, the governor of Mississippi told television cameras that the federal government's help had been necessary but that now federal officials should leave Mississippians alone to repair their state as they saw fit.

No wonder my brother got so frustrated that he swore off Sunday-morning talk shows. State officials, eager to tell Tim Russert and millions of viewers that the national government, not the states, was responsible for hurricane-related problems, criticized Washington for not coming to their states before Katrina hit (to handle evacuations and weak levees).

But as they dodged their own responsibilities, these state nabobs made no mention of the Tenth Amendment. After the hurricane devastated hundreds of miles of property and millions of lives, the demands for federal action continued - despite Mississippi's pullback.

As students of the Tenth Amendment know, Americans use the Constitution both strictly and loosely in order to achieve their desired goals. Several recent examples prove the case. Republicans, who have been the Tenth Amendment's staunchest recent defenders, were more than happy that a federal court intervened to ensure the election of George W. Bush in 2000, and many who oppose national government intrusion into state affairs demanded the help of Congress, the president and the federal courts to prevent the death of brain-damaged Terry Schiavo.

In other words, notwithstanding claims that the Tenth Amendment "says what it says and anyone can understand it," it has no more chance of gaining a consensus of interpretation than does any other "cloud covered" provision of the Constitution.

Whether one interprets the Constitution "strictly" or "loosely" - and whether one looks to the "original intent" of the Framers or sees the document as "living" and adjustable over time - the Constitution and its Tenth Amendment have been the basis for arguments over federal and state powers ever since they were written.

John Marshall tackled the issue back in the 1800s. New Chief Justice John Roberts will do the same in the 21st century.

Claudine L. Ferrell is associate professor of history at the University of Mary Washington in Fredericksburg. Readers may send her e-mail at cferrellumw.edu.