April 16, 2021

Defending the 10th Amendment

Sala de Parto #3

I bet you didn’t know it needed defending?

The Tenth Amendment to the U.S. Constitution 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.

This is a statement made by the Federal Government about the extent of its power and where its power ends.  It was by this Amendment (before the 14th) that made it so that states had established religions even when the Federal Government could not.

It is also by this amendment that many states are taking more actions to protect themselves from the actions of the Federal Government.

States Are Different Entities

States were always meant to be different entities, with different groups of people that came together for Federal purposes.  Though you wouldn’t hear anyone call themselves a Carolina-American, the idea that states could have separate laws goes back to the beginning of the Union.  Many of the states had different established churches as one example.

There is strength in difference.

Which is why, as the country becomes more polarized, certain states have decided to do different things—create “same-sex marriage”, legalize drugs for medicinal purposes, institute socialized medicine, have different abortion control laws, have the death penalty for capital offenses, etc.  And this, in itself, is all fine and good.  There are laws that protect other states from having to abide by other state’s rules where it make sense.

The problem comes into play when the Federal Government makes a ruling on something controversial, because it demands that everyone and all states comply.

For example, abortion.  I believe that we might see some states be pro-abortion and some pro-life today if this went through the legislature rather than the judicial system.

Now, there are cases where the Federal Government should act.  Slavery is wrong.  It was wrong when the country was founded and it’s still wrong today.  So having the Federal government declare that it wasn’t up to the states to decide1 whether slavery was right or wrong does hold to first principles—that all men were created by God with the right to life, liberty and property.

However, when you come to the current debates and issues, I’m not sure that a clear moral case can be made for why states should have to be put into the position of supporting something foisted upon them by the Federal Government.

Today’s Issues

We’ve talked at length about DOMA—the protection of the definition of marriage as between a man and a woman on the Federal level—but the current move by the states is to protect Health Care Choice, or as they’re pitching it, protecting their citizens from socialism:

The proposed Kansas amendment preserves the right of individuals to pay directly for medical care — something that is not allowed in single-payer countries such as Canada. It also prohibits any individual from being penalized for not purchasing government-defined insurance.

Under the amendment, any state attempt to require an individual to purchase health insurance–or forbid an individual from purchasing services outside of the government-established health care system–would be rendered unconstitutional.2

This is another interesting State’s Right case, where I’m sure, if it were stressed, would find itself in the Supreme Court.  The result of that would have impacts on the whole country.

So which way do you think things should go?  Should the Federal Government be making one-size-fits-all decisions or should those decisions be made locally?

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  1. Prior to the War Between the States, the South were pro-slavery the North was anti-slavery.  The battle was fought, however, over States Rights—could the states say what they wanted to happen in their land or not.  Those who do not learn from the past are doomed to repeat it. []
  2. CNS News []

5 thoughts on “Defending the 10th Amendment

  1. When states decided that the weak federal environmental laws were inadequate to protect their people, the federal government prevented them from enacting laws that went further than the federal mandate. I didn’t notice a lot of libertarians and conservatives complaining then. When states decided that the laws against marijuana use were ridiculous and the drug was useful for cancer patients, wasn’t it a conservative federal government that stepped in and arrested people? When a state court mandated a recount of a tightly contested election, didn’t a conservative Supreme Court interfere in their Constitutional rights and prevent it? Where was the conservative outrage then?

    The Constitution is clear that states do not have the right to violate the Constitutional rights of their citizens regardless of their rationale. That’s why the government was right to step in and end segregation and why the federal government would be right to step in now and end discrimination against gay Americans.

    If you want to champion the 10th Amendment, then you have to champion it consistently and you have to read the rest of the document to understand what rights are given to the federal government.

    1. The Federal Government did make a statement–that for Federal purposes, the definition of marriage is a man and a woman, and that no state has to recognize anything else. So, by your comment they were well within their rights.

      Simply because the Federal Government made a decision that contradicts your point of view doesn’t mean they aren’t agreeing with your logic.

      I’m not sure what your complain is then?

      I’ve been consistent when I’ve had chance to discuss these issues. The states should have the ability to govern things individually, especially when it comes to moral questions.

  2. There is one area in which it is clear that the Federal government can overrule the states – the area of Constitutional rights. A state cannot infringe on the rights of a citizen within its boundaries. The Congress can and does pass unconstitutional laws from time to time and either they or the courts usually overturn those laws. DOMA is a clear example of the Congress overreaching its authority. First, because it withholds rights from one segment of the citizenry that are available to another (violating the 14th Amendment) and it permits/encourages states to refuse to honor contracts legally valid and approved by another state (violating Article 1).

    1. You have not demonstrated that DOMA is Congressional overreach.

      First, it has not been proven that not allowing individuals the permission to have a union other than the current definition of marriage is an infringement on their rights. They have the right to marry one opposite sex person just like every other person in the country. There is no difference in the rights of that individual compared to any other– all have the same rights.

      Second, the 10th Amendment allows congress to dictate the effect a contract that is created in one state has on another. This is defined in the second clause, which you have yet to acknowledge or even address.

      In the articles to which I linked– which I can only assume you did not read– those with a professional lawyer background said that the 10th amendment argument is the weaker of the two. In reading those that agree with your point of view, even they say that what Congress did with DOMA is in line with what is in the 10th Amendment, but that they believe evolving definitions of privacy and relationships will give way to same-sex marriage.

      Hardly the degree of certainty you express.

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