Does the United States Constitution still exist? There is one simple way to answer this question. Read any article or section of the 200-year-old document written to provide the citizens of a free republic with a short and simple guide to what their government can and cannot do and ask whether the language you have just perused remains operative today. With the possible exception of the clause requiring that the President of the United States be more than 35 years of age, hardly any of it does. Almost all of the “important” parts of the Constitution today—the First Amendment, the Commerce Clause, the 14th Amendment, war powers, etc.—through the endless machinations of lawyers and the meddling of judges and courts, means something other than, and sometimes the direct opposite of, what the language plainly says, and in addition there are at least two “unimportant” parts, the Second and Tenth Amendments, that have virtually disappeared. Unable to twist and torture the language of those amendments to suit their fancies, the courts have simply ignored them and pretended they no longer exist.
Instead of the plain text of the Constitution, what we have today are merely the collected musings of various judges and justices, organized into convenient little formulas like the “Lemon Test” or the “reindeer rule” and arbitrary definitions of such matters as “obscenity,” “privacy,” and “interstate commerce,” that simply emerged from the whims and private dogmas of the magistrates, if not from those of beardless clerks just hatched from the nests of Cambridge and New Haven. Not only does the “constitution” that such formulas compose remain unratified by the states or the people, but most citizens do not even know it exists at all and fondly imagine that the document of Madison and Hamilton still governs the government.
Nevertheless, if the old Constitution has vanished from the courts, the minds of the judiciary, and the instruction of the law schools, it does sometimes still kick in the memories of the people themselves. The resurrection of the Second Amendment last year in a massive popular rebellion against congressional violations of the rights of gun owners is clear evidence of this, as is an even more remarkable resuscitation of the other part of the Lost Constitution, the Tenth Amendment itself.
Long dismissed by late 20th-century jurists as without substance to anyone save antiquarians and Southern segregationists, the Tenth Amendment was considered by Thomas Jefferson to represent “the foundation of the Constitution,” and he warned George Washington that “to take a single step beyond the boundaries thus specially drawn . . . is to take possession of a boundless field of power, no longer susceptible of any definition.” In the last few years, as gun owners, farmers and ranchers, the governors of half a dozen states, and even Republican presidential candidates have stepped forward to invoke the amendment and denounce the federal government for its systematic invasions and violations of the states’ rights the amendment protects, Jefferson’s warning remains as relevant as ever. Indeed, Republican leaders like Newt Gingrich and Bob Dole, who have crooned over the amendment all year and claim to have based parts of their Contract with America on it, ought to think about what it really means as Jefferson and most other constitutional authorities of the Old Republic understood it.
Republican invocations of the Tenth this year have been instigated mainly by what the GOP considers its stroke of genius in designing a welfare reform measure that works through “block grants” to the states from the federal government, and the party’s leaders repeatedly make the claim that this apparent decentralization of power represents a restoration of the amendment and a devolution of power to the states. Of course it means no such thing, if only because the funds for the block grants come from the federal government, or, more exactly, the American taxpayer, so that citizens in Alabama and Wyoming will still wind up paving for welfare in New York and California. Indeed, the flaw of block grants and the whole concept of “revenue sharing,” beloved of modern Republicans, was exposed by Andrew Jackson in his veto of a law sponsored by Henry Clay that would have awarded funds from the sale of federal lands to the states for their own internal purposes. “It appears to me,” wrote Jackson, “that a more direct road to consolidation cannot be devised” than Clay’s revenue sharing proposal. “Money is power, and in that government which pays the public officers of the states will all political power be substantially concentrated. The state governments, if governments they might be called, would lose all their independence and dignity,” and the officers of the states “would, in effect, be the mere stipendiaries and instruments of the central power.” Haying devised compelling empirical arguments for the outright abolition of welfare, the Republicans proceeded to ignore their own ideology and develop a welfare plan that not only perpetuates the most thoroughly discredited public policy of the federal government but does so through a dishonest and dangerous rationale.
If it were only Republicans who invoked the Tenth Amendment, citizens might be well advised to ignore all the noise being made about it, but in fact no small part of the authentic Middle American resistance to the federal leviathan is wrapped up in more serious discussions of the Tenth and the real federalism of which the amendment remains the heart. There is hardly a single issue involved in that resistance today that is not closely connected with it. Not long after the silly “Brady Law” requiring a federally mandated waiting period for the purchase of handguns went into effect, several sheriffs in the Western part of the country announced that they would refuse to enforce the law in their jurisdictions. At least one of them, in Montana, was upheld by a federal judge on the grounds of the Tenth Amendment. In other states, governors themselves have invoked it, citing federal intrusion into such matters as education (Virginia), federal abortion regulations (Pennsylvania), welfare for immigrants (California and Florida), and unfunded mandates generally. In Nevada last year, local ranchers, with the support of a county commissioner, nearly had a gunfight with officials of the Forest Service and the Bureau of Land Management when the citizens decided to ignore federal regulations on land use and started building their own road where federal regs declared they couldn’t. “We were proving our point that they don’t have jurisdiction,” said the county potentate, who habitually carries a copy of the Constitution (the old one) in his pocket, hi other areas, similar conflicts between locals and federals—over environmental regulations and laws, for instance—have provoked the same kind of confrontations that are beginning to resemble older fights that took place at Lexington, Concord, and Fort Sumter.
Conservative academics can explore the theoretical justifications for secession all they want, but the real action these days is not in talking the talk but in walking the walk, and in the last couple of years, plain citizens who have never heard of Alexander Stephens and care little for Jefferson Davis have started their own secession movement. Unlike their theoretical counterparts, they are not inventing reasons to avoid political activism or to start their own country. What they want to secede from is not the country itself but Washington and the leviathan headquartered there, and fantasies about throwing the Yankees out of Atlanta do nothing to advance the cause they share with the more serious and principled foes of centralization.
Nevertheless, the Tenth Amendment movement, if it is a movement, would not be hurt by a bit more command of theory and principle before it marches up Bunker Hill. In the 1970’s, the New Right was also contemptuous of political theory, and when its leaders finally gained some measure of political power, they quickly found that they had only a foggy idea of what they wanted to do and why they wanted to do it. The result was that the successful New Right was quickly gobbled up by neoconservatives, who possessed a clearer vision of what to do with the power they craved but could not win through elections.
There seems to be a similar problem with the leaders of Tenth Amendment activism, as illustrated by the remark of one newly converted apostle of states’ rights, Utah Governor Mike Leavitt, last year. “I’m not arguing for this [states’ rights] on the basis of some ideology. I’m arguing for more state autonomy based on the fact that what we’ve got isn’t working.” This, of course, is simply the voice of pragmatism, a principled refusal to invoke principle, and like all pragmatism it will eventually be swallowed up by someone or something else. Mr. Leavitt, it must be recalled, is not only a governor but also a Republican.
The main danger the Tenth Amendment movement faces is also its main strength, namely, that it is not “principled,” that it is a response to practical grievances experienced by those who have come to perceive the federal government as the main cause of their grievances. Hence, the danger is that as soon as those specific grievances are removed or massaged (which is exactly what much of the Republicans’ Contract tries to do), the movement will wither. Moreover, serious supporters of Tenth Amendment federalism need to remember that whatever costs federal aggrandizement imposes on the states and citizens, there are many who gain from it and from the calculated obsolescence of the amendment. That is one major reason why the segregationists’ use of the amendment never went very far. Having happily wallowed in federal grease when checks for farm subsidies were in the mail, the Southerners could not expect to be taken very seriously when they whined about states’ rights in the face of federally enforced integration.
A movement for restoring reality to the Tenth Amendment can be taken seriously, not just when pragmatists like Governor Leavitt learn something about the principles they casually and ignorantly invoke, but when social and economic groups are willing to support real federalism even against their own interests. The artfulness of the political revolution that has destroyed authentic republicanism arid converted state and local government into Jackson’s “mere stipendiaries and instruments of the central power” is that the revolution succeeded in wedding social and economic groups to that power. Just as Hamilton and Clay tried to buy up and bind together local interests with their projects for national banks, tariffs, and internal improvements, so the architects of the modern managerial state have constructed a federal architecture that buys up and binds together strategic social and economic elites. The intellectual and verbalist classes have been bought by federal funding of education, the arts, and humanities and by federal entrenchment of a radically expanded interpretation of the First Amendment that allows the eggheads to mouth off about any stupidity that pops into their heads without fear of local sedition and obscenity laws. Labor and racial minorities have been bought by federal legislation that creates special privileges for them. Big Business (including agribusiness) has been bought by direct subsidies and monetary and tax policies that favor bigness and concentration over smaller competitors. The new proletariat created by mass immigration is being bought simply by the federal leviathan’s refusal to enforce its own laws against illegal entry and by forcing the states to assume the burdens that ensue. The only people who have not been bought are Middle Americans themselves, who are expected to pay for the bargains they are getting and to endure their consequences in silence. That, of course, is why there is an incipient Middle American Revolution at all.
Simply because so many Americans now depend, directly or indirectly, on the federal leviathan and the other people’s money that it so generously shares with those who have no right to it, restoration of the Tenth Amendment in the way that Jefferson and Jackson would have wanted may not now be possible. But even a partial restoration would rip much of the guts out of the leviathan and so disrupt it that it could no longer function, and there can be no doubt that in recent years there have emerged several concrete social and economic groups with real and deep interests in at least some restriction of federal power. If enough such groups can crystallize and invest their revolt with a serious understanding of what federalism means and how it can be advanced, then a real restoration of the Tenth Amendment, and not merely Republican manipulation of slogans, may become possible as Americans come to perceive the real costs of the “boundless field of power, no longer susceptible of any definition,” to which the destruction of the Old Republic has delivered us as Jefferson warned it would.