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The Tenth Amendment in the 21st Century

Author: Washington State 4th Legislative District Democrats | Date: 2010-04-03 | Source:

It seems the newest straw  for the conservative of the 21st  century to grasp for is the 10th Amendment.

This integral part of our nation’s Constitution has been interwoven in our U.S. Constitutionnation’s history many times.  Most recall the more famous cases where states’ right were upheld, and placed the country down a path of bloody division over slavery. Once again the abuse of  tenth amendment plays a part in national division, and impeding  progress for the common good.

The wording of the Tenth Amendment is simple, which is often the case with our founding  fathers  writing.  They could be very specific “ the president shall be at least 35 years old” or.. less so as the 10th  amendment shows ,

“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."

The Tenth Amendment has been tested, defined, and redefined over the years, as the following examples show,  during the 1980’s , A Supreme Court justice reversed his own ruling.

During the Great Depression, Congress  passed the NEW DEAL,a series of programs designed to stimulate the troubled economy. After the Supreme Court upheld a provision of the National Labor Relations Act (mandatory COLLECTIVE BARGAINING) in NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937), Congress began exercising unprecedented lawmaking power over state and local matters. For the next 40 years, the Supreme Court upheld congressional authority to regulate a variety of matters that had been traditionally addressed by state legislatures. For example, in one case the Supreme Court upheld the Agricultural Adjustment Act of 1938 (7 U.S.C.A. §§ 1281 et seq.) over objections that it allowed Congress to regulate individuals who produced and consumed their own foodstuffs entirely within the confines of a family farm (Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. E[1942]).

Fifty five  years later the Tenth Amendment is tested , and yet again  ten years after that.

1976, in National League of Cities v Usery, the Court struck down provisions of a federal law that extended minimum wage protection to almost all state and municipal employees.  Although the Court recognized that the Commerce Clause authorized minimum wage laws covering most employees, the Court held that the Constitution\'s structure and the Tenth Amendment's recognition of the role of states in the federal structure prohibited the federal government from telling states what they must pay their own employees.

Nine years later, however, the Court overruled National League of Cities in Garcia v San Antonio Metro Transit Authority when Justice Blackmun--who had provided the critical fifth vote in the earlier case--reversed himself, concluding that the National League of Cities rule was causing so much confusion in the lower courts as to be "unworkable".

Why are these cases so important today? One of the clauses they use to support the Tenth amendment concpet is the Commerce Clause. This  is  the defense against the new TENTH AMENDMENT movement. A movement steeped in obstructionism and vision of the future best described as “ back to the future”. But there yet another line of reasoning, please read on.
Article I, Section 8, Clause 1 of the United States Constitution reads:

The Congress shall have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common
Defense and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;
The last two clauses are known as the General Welfare Clause and the
Uniformity Clause. These are the provisions that promise to be at the
heart of any constitutional attack on the Cornhusker controversy.
While many feel that there is an inherent ‘unfairness’ in Congress
granting so significant a benefit to one state while denying the same
to all the others, the Court has held that the power of Congress to
determine what is done in the name of the general welfare of the
nation is an extremely broad power. Indeed, many would say it is
almost limitless.

The Court established this precedent in the 1937 landmark case,
Helvering v. Davis.
Now the  earlier cases deal with the commerce clause attack that will be made by the 10th Amendment folks, this case Helvering v Davis, is what strengthens the case for the health care bill recently passed.

This analysis is provided by the Constitutional Law Professor’s blog:
Congress may spend money in aid of the “general welfare.” . . . There
have been great statesmen in our history who have stood for other
views. We will not resurrect the contest. It is now settled by
decision. United States v. Butler. . . . The conception of the
spending power advocated by Hamilton and strongly reinforced by Story
has prevailed over that of Madison, which has not been lacking in
adherents. Yet difficulties are left when the power is conceded. The
line must still be drawn between one welfare and another, between
particular and general. Where this shall be placed cannot be known
through a formula in advance of the event. There is a middle ground,
or certainly a penumbra, in which discretion is at large. The
discretion, however, is not confided to the courts. The discretion
belongs to Congress, unless the choice is clearly wrong, a display of
arbitrary power, not an exercise of judgment. (emphasis added) This is
now familiar law.

In short,  Washington’s attorney general, Rob McKenna, which recently joined  10-13 other states’ attorney generals in contesting the Health Care bill on 10th Amendment grounds,  they and Mr McKenna are about to embark on a question that has been asked and answered dozens of times. This nothing more than public grand standing at  best and petty partisan politics  at worst.
While Florida may take the lead and bear the largest burden of the cost,  Washington state will not be without paying some share, will it be $15,000 or $150,000, no one can answer. In a time of shrinking revenue, budget shortfalls, is this really the best use of our tax dollars?  Do we really need to be tilting Constitutional windmills with the help of   Rob “Don Quixote” Mckenna?
Contact your Attorney General today and tell him not to take on  this  fool's errand.

Designed and Coded by Dixie M. Saccheri -- In assosciation with Spokane Community College
Community Colleges of Spokane - SCC