Why the 10th Amendment?

The recent rejuvenation of interest in State's rights, nullification, and secession has been a welcome result of the explosion of federal power since the housing and credit bubbles burst last fall. The 10th Amendment movements and "tea parties" are, at least on one level, a pure form of "republicanism." Unfortunately, there are those who call themselves Republicans who have little understanding about the history of the republic, namely how the Founding generation conceptualized the "united States" as Jefferson called it in the Declaration of Independence. "Country club" Republican "protesters" have jumped on the bandwagon, and as folks on the LRC have documented, these individuals are purely pawns for the demagogues in the GOP, a party that has never truly been either for State's rights or limited government. Simply rallying against unconstitutional taxes, expansive federal programs, or shallow assaults on the Democrats and Barack Obama is not enough. You can chant about the 10th Amendment till you go hoarse, but without understanding the principles behind State sovereignty, your voice will be useless.

It becomes clear, then, that those who push for reasserting State power must know how the Founders defined a republic in both size and scope and what they meant by republicanism. Returning to the founding principles of the United States is an obvious way to end the insanity in Washington D.C., but it won't happen if State's rights are consistently viewed as a knee-jerk reactionary response to unconstitutional federal legislation. Yes, the 10th Amendment was included in the Bill of Rights, but why did the Founders insist on state sovereignty? Rather than a theoretical fabrication at the 1787 Philadelphia Convention or the State ratification conventions, State's rights were explicitly linked to the stability of the United States from the Revolutionary War forward. That is the key to the State sovereignty movement.

Thomas Jefferson made two interesting statements concerning republics in 1816. In a letter to fellow Virginian John Taylor — one of the most insightful political economists and theorists of his day — Jefferson said that a republic "is evidently restrained to very narrow limits of space and population. I doubt if it would be practicable beyond the extent of a New England township." He also told Isaac Tiffany that "A democracy [is] the only pure republic, but impracticable beyond the limits of a town." In other words, a republic is only plausible over a small distance. Anything beyond that would destroy the ability of the people to control the government, and that is the foundation of republicanism. Jefferson wrote in the Declaration of Independence that legislative powers were "incapable of Annihilation" because "they return to the People at large for their exercise." State and local governments were most responsive to the people and thus the most republican in form.

To the Founders, diffusing power over large groups of people and then placing it in a small number of representatives violated the principle of direct control of the government, and more importantly, the Founders understood that the States stood as a hedge against factionalism. George Mason, speaking at the Philadelphia Convention, succinctly addressed this issue: "From the nature of man, we may be sure that those who have power in their hands will not give it up, while they can retain it. On the contrary, we know that they will always, when they can, rather increase it." Only the States could check arbitrary abuse of power which is one reason why Mason said he would rather cut off his right hand than sign the Constitution without a bill of rights. Factions, either sectional or personal, could destroy the interests of the people without recourse; the States provided that recourse.

Thus, the founding generation believed that the United States was nothing more than a federal union formed solely for defense and commerce. John Taylor, writing in his Tyranny Unmasked, explained that "the experiment of a consolidated republic, over a territory so extensive as the United States, is at least awful, when we can recollect no case in which it has been successful. If the people had believed it practicable, it would have been preferred to our system of division and union…." Patrick Henry argued during the Virginia ratification convention that State sovereignty was the only safeguard against the "infinitude" of the Constitution. He declared that "the delegation of power to an adequate number of representatives, and an unimpeded reversion of it back to the people, at short periods, form the principal traits of a republican government," and feared that the Constitution would lead to despotism and the subversion of republican principles.

The number of Americans who consistently believe their vote does not count on the federal level is a testament to the fact that the people have truly lost their hold on the "representatives" in Washington. Jefferson, Taylor, Mason, and Henry all understood that the people had greater control over their State and local representatives. They lived among them, went to church with them, socialized with them, and maybe even had family ties. Four hundred people protesting in Washington D.C. won't make a difference, but four hundred people protesting in front of the local courthouse will. It was, and is, simple economy of scale. Henry said, "The governing persons are the servants of the people." State sovereignty ensured that they remained the servants of the people and that the culture and customs of local communities would be preserved.

And, this wasn't just a component of Southern political philosophy. Northerners relied on State's rights to protect their local traditions, too. John Adams once wrote that he considered federal representatives to be nothing more than "ambassadors" from the several states. Gouverneur Morris of Pennsylvania, one of most ardent nationalists at the Philadelphia convention, considered the Senate as originally designed before the perversion of the 17th Amendment offered the only protection for the commercial States of the East. Moreover, if the sections could not mesh politically, he urged the following: "instead of attempting to blend incompatible things, let us at once take a friendly leave of each other." That was 1787. Roger Sherman of Connecticut considered the Articles of Confederation to be insufficient for the facilitation of commerce and defense, but he thought the powers of the States should be protected in order to safeguard the cultural integrity of each community. "Each state, like each individual, had its peculiar habits, usages, and manners, which constituted its happiness. It would not, therefore, give to others a power over this happiness, any more than an individual would do, when he could avoid it." Even Alexander Hamilton once said that the federal government could not coerce a State. Incidentally, Massachusetts conditionally ratified the Constitution with the understanding that a bill of rights would be added. State sovereignty was number one on the list.

Jefferson affirmed that the States were "FREE AND INDEPENDENT" in the Declaration of Independence. Nothing changed that, not the Constitution or efforts to reduce State influence and power by successive generations. Instead of focusing on the narrow issues of taxes and "big government," advocates of the 10th Amendment movement should emphasize that the State is the most responsive level of government, the most democratic, the purest form of a republic, and the political entity most able to ensure republican principles, which Jefferson listed as "simplicity, economy, religious and civil freedom." All the Founders would agree.

May 1, 2009