10th Amendment

Some liberal and conservative commentators have argued that the 10th Amendment to the U.S. Constitution does give the States (and the people) certain “powers” or rights not granted to the Federal Government.  This argument is being used currently to defend the so-called “rights” of the States to decide when and whether to allow the resumption of normal business and societal relations in the state.

But is this an accurate reading of the 10th Amendment and of the argument from “states rights’? Hardly. It is true that the 10th Amendment does say that powers NOT granted under the Constitution to the Feds are, in fact, reserved to the States and to the People. BUT it also says, and this is a huge BUT, these so-called  “powers” CANNOT include activities expressly “prohibited by it (the Constitution)  to the States..” In short, the States cannot regulate or prohibit activities that are explicitly protected by the Constitution as “rights”, namely activities such as (Amendment 1) “the free exercise of religion” and the “right of the people…to assemble…”  And no State, of course, (Article 1, Section 10) “can pass any Law impairing the Obligation of Contracts…”

In short, the States don’t have–and have never had–the legitimate power to regulate or prohibit religious freedom or freedom of assembly or “impair” the obligation of contracts.” Yet almost every Governor have done precisely this, i.e., they have restricted, regulated and prohibited activities that the Constitution itself says they have no right to restrict, regulate, or prohibit. Even worse (from a legal  perspective) they have done so mostly by edict and not by legislation and none to my knowledge have even had to go to court to attempt to provide any “rational basis” for their actions. That, dear reader,  is the complete abandonment of the rule of law.

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