Con Law (Manheim): Tenth Amendment x 3

March 11, 2006

Tenth Amendment x 3

American Federalism is embodied in the constitution in many places. The first is the notion of enumerated powers; the federal government enjoys only those powers specified in the text, plus such incidental (or implied) powers as are "Necessary & Proper" to effectuate the enumerated powers.

The second embodiment of federalism is found in the Tenth Amendment. However, this provision is merely "declaratory" of the doctrine of enumerated powers. In other words, it doesn't resolve the question of whether congress has a particular power; it only tells us what happens if it doesn't. In this way, the Tenth Amendment "states but a truism;" that all powers not vested in the federal government are reserved to the States, or to the people. During the era of "Dual Federalism" the Tenth Amendment was given an active role in limiting congress' power. Even so, the amendment was viewed as simply the flip side of "enumerated powers." It wasn't until the mid 1970s, and the re-emergence of a conservative Supreme Court, that the 10th Amd. was given a further role (see below the fold).

The third textual embodiment of federalism is found in the Eleventh Amendment, which confers (or restores) State sovereign immunity. This most controversial issue is explored in the next post.

Finding Federalism

The fourth place to find federalism in the constitution (more accurately, a re-working of federalism) is in the Civil War Amendments (13th, 14th, 15th). These radically changed the relationship between the States and the federal government.

There are other textual provisions, such as the 17th Amendment, which removed the selection of U.S. Senators from State legislatures and vested it directly in the people.

Beyond constitutional text, federalism (qua States Rights) is also found in "pre-constitutional understandings;" i.e., the relationship between congress and the States that existed under the Articles of Confederation, and even earlier - during the Revolutionary period. Much of the current expansion of States Rights is based on these historical relationships, rather than on the actual text of the constitution. In approaching the issue in this manner, the Supreme Court treats the autonomy of the States prior to 1789 as the baseline. The "quasi-sovereignty" that existed then is preserved, according to this theory, except to the extent the constitution explicitly alters that relationship. In other words, relying on history to define federalism treats the constitution as a minimalist restructuring of the pre-existing order, rather than viewing the constitution as a fresh start, one that created a new government and polity from the ground up.

The debate over federalism reduces to a single principle - where sovereignty is located in the United States. States Rights proponents believe that the States (in their corporate sense) are sovereign, and the central government merely the recipient of limited authority. Much of the legal dispute over secession of southern States from the Union can be understood in these terms.

On the other hand, proponents of a strong federal government (the original "federalists") see the formation of the constitution as a rejection of the previous regime. While power still remains divided between central and State governments in some respects, the federal government has plenary power within its sphere of authority, even if that results in insults to State autonomy.

2nd Use of the Tenth Amendment

In National League of Cities v. Usery (1975), the Supreme Court found a new use for the 10th Amendment. Even where Congress had enumerated power, it could not use that power to regulate the States themselves. This decision recast the 10th Amendment from one that described the scope of federal "powers," to one that created "rights."

In other words, the 10th Amendment did not simply reduce congress' powers (as it had done during "Dual Federalism"), it also operated as a specific restriction on the exercise of powers Congress genuinely had, much like the Bill of Rights prevents congress from using its enumerated powers to regulate particular things (e.g., press, speech). So that even where congress had power to regulate wages as part of Interstate Commerce, it could not use its power to regulate wages that States paid.

This vision of the 10th Amendment was short lived. NLC was overturned 9 years later in Garcia v. SAMTA, which held that State protection from federal excesses lay in the political composition of the federal government, rather than in judicial determination of when congress could and could not invade State sovereignty.

Tenth Amendment, Act III

Enter New York v. United States, stage right. When Chief Justice Warren Burger retired and President Reagan elevated William Rehnquist to Chief (also having appointed Sandra Day O'Conner, Antonin Scalia, and David Souter), the Court took yet another conservative turn. The 1st use of the 10th Amendment had been reduced to a "trusim;" the 2d use had been discredited, but a 3rd use was discovered. In this reincarnation, the 10th Amd. prevents congress from using its enumerated powers to "commandeer" States. While congress may regulate Interstate Commerce, and even regulate the States (in the sense that States would have to comply with federal law, just as private parties would), it could not require States to enforce federal law against others.

There is much merit to the political theory underlying NY v. US. If congress can pass the buck, so to speak, by requiring States to enforce federal law, it reduces congress' own accountability. And "commandeering" further erodes state autonomy, by treating States as mere instruments of federal regulation. Indeed, the States' representatives in the House and Senate ought to seriously consider the political ramifications of any federal "commandeering" legislatiion.

But this political theory is just that, political theory. How does it become constitutional law? The answer is - the same way the whole genre of States Rights has been resurrected in recent years, by re-envisioning the pre-constitutional relationship between States and federal government.

There are several problems with "originalism" (converting history into constitutional law). One is that the historical record is ambiguous, for every example cited by States Rights proponents, a counter-example can be found. Another is - who's history do we look at? The drafters of the constitution, the delegates to the state ratifying conventions, the people of the states, the propagandists who editorialized for or against ratification, 18th century voters (limited in most states to white men of property)? In his book, A Matter of Interpretation, Justice Scalia argues for a particular version of "originalism" - what the educated political class of 1787 thought a provision meant - (and distinguishes is from "intentionalism"), but ultimately fails to convincingly defend the theory.

A third, and perhaps most profound, problem with "originalism," is that it locks constitutional law into 18th century customs and policies. The country has changed in the intervening 2+ centuries, embraced new technologies, new markets, new peoples, new cultures. Is the answer to this that we need a constitutional amendment every time we need to recast an 18th century rule? Even if that is right, the Supreme Court seems to have overlooded the biggest change of all - the 14th Amendment, and its attendant thorough transformation of American federalism.

Long live 1787.

Posted by The Professor at March 11, 2006 08:33 AM | TrackBack

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