Principalities & Powersrnby Samuel FrancisrnA Boundless Field of PowerrnDoes the United States Constitution stillrnexist? There is one simple way to answerrnthis question. Read any article or sectionrnof the 200-year-old document written tornprovide the citizens of a free republicrnwith a short and simple guide to whatrntheir government can and cannot do andrnask whether the language you have justrnperused remains operative today. Withrnthe possible exception of the clause requiringrnthat the President of the UnitedrnStates be more than 35 years of age,rnhardly any of it does. Almost all of thern”important” parts of the Constitutionrntoday—the First Amendment, the CommercernClause, the 14th Amendment,rnwar powers, etc.—through the endlessrnmachinations of lawyers and the meddlingrnof judges and courts, means somethingrnother than, and sometimes therndirect opposite of, what the languagernplainly says, and in addition there arernat least two “unimportant” parts, thernSecond and Tenth Amendments, thatrnhave virtually disappeared. Unable torntwist and torture the language of thosernamendments to suit their fancies, therncourts have simply ignored them andrnpretended they no longer exist.rnhistead of the plain text of the Constitution,rnwhat we have today are merelyrnthe collected musings of various judgesrnand justices, organized into convenientrnlittle formulas like the “Lemon Test” orrnthe “reindeer rule” and arbitrary definitionsrnof such matters as “obscenity,”rn”privacy,” and “interstate commerce,”rnthat simply emerged from the whimsrnand private dogmas of the magistrates, ifrnnot from those of beardless clerks justrnhatched from the nests of Cambridgernand New Haven. Not only does thern”constitution” that such formulas composernremain unratified by the states orrnthe people, but most citizens do notrneven know it exists at all and fondlyrnimagine that the document of Madisonrnand Hamilton still governs the government.rnNevertheless, if the old Constitutionrnhas vanished from the courts, the mindsrnof the judiciary, and the instruction ofrnthe law schools, it does sometimes stillrnkick in the memories of the peoplernthemselves. The resurrection of the SecondrnAmendment last year in a massivernpopular rebellion against congressionalrnviolations of the rights of gun owners isrnclear evidence of this, as is an even morernremarkable resuscitation of the otherrnpart of the Lost Constitution, the TenthrnAmendment itself.rnLong dismissed bv late 20th-centuryrnjurists as without substance to anyonernsave antiquarians and Southern segregationists,rnthe Tenth Amendment was consideredrnby Thomas Jefferson to representrn”the foundation of the Constitution,”rnand he warned George Washington thatrn”to take a single step beyond the boundariesrnthus specially drawn . . . is to takernpossession of a boundless field of power,rnno longer susceptible of any definition.”rnIn the last few years, as gun owners,rnfarmers and ranchers, the governors ofrnhalf a dozen states, and even Republicanrnpresidential candidates have steppedrnforward to invoke the amendment andrndenounce the federal government for itsrnsystematic invasions and violations of thernstates’ rights the amendment protects,rnJefferson’s warning remains as relevant asrnever. Indeed, Republican leaders likernNewt Cingrich and Bob Dole, who haverncrooned over the amendment all yearrnand claim to have based parts of theirrnContract with America on it, ought tornthink about what it really means asrnJefferson and most other constitutionalrnauthorities of the Old Republic understoodrnit.rnRepublican invocations of the Tenthrnthis year have been instigated mainly byrnwhat the GOP considers its stroke of geniusrnin designing a welfare reform measurernthat works through “block grants” tornthe states from the federal government,rnand the party’s leaders repeatedly makernthe claim that this apparent decentralizationrnof power represents a restorationrnof the amendment and a devolution ofrnpower to the states. Of course it meansrnno such thing, if only because the fundsrnfor the block grants come from the federalrngovernment, or, more exactly, thernAmerican taxpayer, so that citizens in Alabamarnand Wyoming will still wind uprnpaving for welfare in New York and California.rnIndeed, the flaw of block grantsrnand the whole concept of “revenue sharing,”rnbeloved of modern Republicans,rnwas exposed by Andrew Jackson in his vetornof a law sponsored by Henry Clay thatrnwould have awarded funds from the salernof federal lands to the states for their ownrninternal purposes. “It appears to me,”rnwrote Jackson, “that a more direct roadrnto consolidation cannot be devised” thanrnClay’s revenue sharing proposal. “Moneyrnis power, and in that governmentrnwhich pays the public officers of thernstates will all political power be substantiallyrnconcentrated. The state governments,rnif governments they might berncalled, would lose all their independencernand dignity,” and the officers of thernstates “would, in effect, be the merernstipendiaries and instruments of the centralrnpower.” Haying devised compellingrnempirical argumeirts for the outrightrnabolition of welfare, the Republicansrnproceeded to ignore their own ideologyrnand develop a welfare plan that not onlyrnperpetuates the most thoroughly discreditedrnpublic policy of the federal governmentrnbut does so through a dishonestrnand dangerous rationale.rnIf it were only Republicans who invokedrnthe Tenth Amendment, citizensrnmight be well advised to ignore all thernnoise being nrade about it, but in fact nornsmall part of the authentic MiddlernAmerican resistance to the federalrnleviathan is wrapped up in more seriousrndiscussions of the Tenth and the real federalismrnof which the amendment remainsrnthe heart. There is hardly a singlernissue involved in that resistance todayrnthat is not closely connected with it. Notrnlong after the silly “Brady Law” requiringrna federally mandated waiting period forrnthe purchase of handguns went into effect,rnseveral sheriffs in the Western partrnof the country announced that theyrnwould refuse to enforce the law in theirrnjurisdictions. At least one of them, inrnMontana, was upheld by a federal judgernon the grounds of the Tenth Amendment.rnIn other states, governors themselvesrnhave invoked it, citing federal intrusionrninto such matters as educationrn(Virginia), federal abortion regulationsrn(Pennsylvania), welfare for immigrantsrn(California and Florida), and unfundedrnmandates generally. In Nevada last year.rn8/CHRONICLESrnrnrn