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Carolina Journal Opinions

Much-Maligned Tenthers Have a Point

Oct. 16th, 2009
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RALEIGH -- As I learned when recently delivering a lecture, the 10th Amendment is getting a lot of attention. Tenthers -- those believing the federal government's authority should be strictly limited to the enumerated powers in the Constitution -- are passionate. Their opponents are equally passionate. One person asked me if Tenthers' argument had any constitutional legitimacy. My answer was, well, yes.

The 10th Amendment simply states: "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."

Since 1789, the major political question has been concerning the paradox of dual sovereignty: To what extent shall we be national and to what extent shall we be federal? To what extent shall the United States government be sovereign and to what extent shall a state be sovereign?

Historically, the 10th Amendment has been used to preserve regional particularism and resist centralization. During the 1850s, some Northerners used the 10th Amendment as a justification to ignore the Fugitive Slave Law, and after Lincoln was elected, some Southerners used it as an excuse to preserve slavery. During the Civil War, some northern governors invoked it to resist Lincoln's centralizing tendencies, while some Confederate governors, including North Carolina's Zeb Vance and Georgia's Joe Brown, used states' rights arguments to resist Jefferson Davis' policies, including conscription.

A lot of contemporary liberals don't have much sympathy for the 10th Amendment, however. "This argument has been used to stop progress, and to not keep hope alive," said commentator Alan Colmes. "If the tenthers had their way, there would be no Medicare, no Social Security, even no public education. How about Every Child Left Behind?"

What a simplification!

The 10th Amendment does not prevent states from having public education or creating welfare systems -- to name two examples. In fact, North Carolina had public schools during the antebellum era. Although it has problems, TennCare, a government-operated medical assistance program, has existed in the Volunteer State since 1994. Again, the argument is whether such programs should be created or heavily controlled and directed by the national government.

Invoking 10th Amendment concerns about sovereignty is nothing new. In 1788, North Carolina balked over ratifying the Constitution and relinquishing more of its power to a centralized government. It remained out of the Union for a year, and in many ways, acted as a quasi-nation. In 1818, the Tar Heel State levied a tax on out-of-state banks doing business in North Carolina, and charged each branch $5,000. The state snubbed its nose at a national bank: The Bank of the United States.

In a truly federal government, regional particularism lives. Sometimes it can be ugly and immoral. Other times it showcases genuine progress. Sometimes the argument "It's just the way things are done here" is good enough for me; everyone doesn’t have to think like me.

In a truly federal government, Massachusetts could allow same-sex marriages and bar the Ten Commandments from public displays. In a truly federal government, Alabama could display the Ten Commandments in state courtrooms and outlaw same-sex marriages. Until State of Missouri v. Holland (1920), migratory bird hunting was regulated at the state level, and in a truly federal government, it would be so today. In a truly federal government, states would make laws concerning abortion, health care, and many other issues.

And in a truly federal government, these states would continue to trade with each other and join forces in times of national emergency. As government becomes more centralized, and states relinquish authority, the powerful redouble their efforts to make others act (and believe) like them.

Dr. Troy Kickler is director of the North Carolina History Project (www.northcarolinahistory.org).