GOP Says Many Federal Aid Programs Are Unconstitutional

Many Republicans have indicated that their belief is that federal programs such as Social Security, Medicare, disaster relief, child labor laws, and a federal minimum wage are all unconstitutional.

Their reasoning? A clearly blind understanding of the tenth amendment of the United States Constitution. The tenth amendment reads as follows, “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. ”

There it is. Short and simple. The problem with short things is that Republicans misunderstand them. The problem with long things is, of course, that Republicans don’t read them.

The American Prospect sums up the recent movement by the right-wing in this direction pretty well:

Almost a year after she called for an investigation to discover which members of Congress are “anti-American,” Minnesota’s nuttiest lawmaker is back. In a recent appearance with Fox’s Sean Hannity, Republican Rep. Michele Bachmann accused her colleagues of “forg[etting] what the Constitution says” because they are poised to pass comprehensive health-care reform. Not to be outdone, Sen. Jim DeMint of South Carolina told right-wing activists on a conference call last Thursday that health reform violates the 10th Amendment; he also called on state legislators and governors to “champion individual freedom” by resisting the bill. Two Florida lawmakers beat DeMint to the punch, having already introduced legislation to block health reform from taking effect in their state.

These efforts are all part of a movement whose members are convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations disfavored by conservatives. Indeed, while “birther” conspiracy theorists dominate the airwaves with tales of a mystical Kenyan baby smuggled into Hawaii just days after his birth, these “tenther” constitutionalists offer a theory that is no less radical but infinitely more dangerous.

Tentherism, in a nutshell, proclaims that New Deal-era reformers led an unlawful coup against the “True Constitution,” exploiting Depression-born desperation to expand the federal government’s powers beyond recognition. Under the tenther constitution, Barack Obama’s health-care reform is forbidden, as is Medicare, Medicaid, and Social Security. The federal minimum wage is a crime against state sovereignty; the federal ban on workplace discrimination and whites-only lunch counters is an unlawful encroachment on local businesses.

In a paper by Ian Millhiser and published by the Center for American Progress a year ago, a discussion takes place of Tea Party and conservative ideologies and what they mean for our country. One thing addressed is the tenth amendment obsession and misinterpretation that runs rampant in the right-wing.

The Tea Party imagines a constitution focused entirely upon the Tenth Amendment, which provides that “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”—which is why their narrow vision of the nation’s power is often referred to as “tentherism.” In layman’s terms, the Tenth Amendment is simply a reminder that the Constitution contains an itemized list of federal powers—such as the power to regulate interstate commerce or establish post offices or make war on foreign nations—and anything not contained in that list is beyond Congress’s authority.

A bit more frightening, perhaps, are ideas concerning child labor or labor laws in general:

 Nearly 100 years ago, the Supreme Court declared federal child labor laws unconstitutional in a case called Hammer v. Dagenhart. Twenty-two years later, the Court recognized that Hammer’s holding was “novel when made and unsupported by any provision of the Constitution,” and unanimously overruled this erroneous decision.

Sen. Lee [Sen. Mike Lee, R-UT], however, believes that, while Hammer might “sound harsh,” the Constitution “was designed to be that way. It was designed to be a little bit harsh,” and thus we should return to the world where federal child labor laws are unconstitutional.

The argument can be made that this paper was written a year ago, or that the Tea Party is a right-wing fringe group. At least, it could be made until you read the GOP platform for the next year. Excerpt below:

We support the review and examination of all federal agencies to eliminate wasteful spending, operational inefficiencies, or abuse of power to determine whether they are performing functions that are better performed by the States. These functions, as appropriate, should be returned to the States in accordance with the Tenth Amendment of the United States Constitution. We affirm that all legislation, rules, and regulations must conform and public servants must adhere to the U.S. Constitution, as originally intended by the Framers. . . . Scores of entrenched federal programs violate the constitutional mandates of federalism by taking money from the States, laundering it through various federal agencies, only to return to the States shrunken grants with mandates attached. We propose wherever feasible to leave resources where they originate: in the homes and neighborhoods of the taxpayers.

Republicans need to face the reality that the state vs. federal battle was decided quite a while ago. After the Civil War, in fact. We are one country, united under one flag, and policy should reflect that. The GOP platform is, to say the least, utterly terrifying and dangerous to our great nation.


The tenth amendment battle, however, has been going on for much longer than you may think. It all comes down to federalism and federal vs. state power. Freerepublic.com explains how it started:

The controversy over the Tenth Amendment goes back to early American history. The Anti-Federalists, concerned about a monarchy, included the Tenth Amendment in the Bill of Rights to limit the government’s power. Upon its passage, Thomas Jefferson called the Tenth Amendment “the foundation of the Constitution.”

The battle over the Tenth Amendment later became pronounced between James Madison, who had a strict interpretation, and Alexander Hamilton, who had a much looser interpretation.

But generally Jefferson’s view of the Tenth Amendment ruled until Franklin Delano Roosevelt’s New Deal. After Supreme Court judges struck down many of FDR’s reforms on Tenth Amendment grounds, Roosevelt threatened to expand the high court with his own appointees. Judicial opposition quickly collapsed.

The Constitution’s complement to the Tenth Amendment is the Commerce Clause, which states, “[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

Many progressives contend that this gives the federal government broad power to regulate anything that affects commerce. This reasoning was adopted by the courts during the New Deal.

Others claim that “regulate” meant something different during the late-1700s — literally to “make regular.” They argue the Commerce Clause was just supposed to block states from establishing tariffs and sanctions against each other that could hamper regular trade.

However, a variety of landmark decisions go to show that the tenther mindset is either misguided or historically uneducated. In 1819, McCulloch v. Maryland, a Supreme Court case, helped to decide two things: The supremacy of the federal government over that of the states, and the existence of implied powers beyond those enumerated in the Constitution. The first of those, the supremacy of the federal government, ensures that federal laws preclude state laws. This has clearly been shown in the DEA raids on “legal” marijuana farms in California and Oregon. While legal according to state laws, the federal mandate against marijuana allowed the raids to be carried out, and will continue to allow such until medicinal marijuana is legalized on a federal level.

In 1824, the Supreme Court decided in Gibbons v. Ogden to increase the power of the federal government in commerce regulations by “broadly defining commerce to encompass virtually every form of commercial activity.” (Government in America)

We certainly mustn’t forget the Civil War. The Civil War was, essentially, a war about the states’ rights versus the power of the federal government. The conflict regarding this power was decided in favor of the national government.

It should also be noted that any discussion on taxation and spending being reserved as states’ rights is utterly ridiculous. In the above listed Supreme Court cases, it was clearly decided–and set precedent that stands to this day–that taxation and spending is the ultimate authority of the federal government.

The tenth amendment discussion currently occurring under the present GOP platform is pointless. However, it is also dangerous, and threatens to undermine the very fabric of what makes our country great–solidarity from diversity, and working together on a large-scale. The answer to corruption and government wastefulness is not to make ridiculous spending cuts to everything but defense or to “shrink” the size of the federal government. It is, always has been, and always will be, to enhance government transparency and remember that we are a nation and government by the people and for the people.

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