Who Killed the 10th Amendment?
Not a day goes by when the liberal media don’t telegraph to the world that a “Trumpocracy” is destroying American democracy. Conspicuous by its absence is a pesky fact: Ours was never a country conceived as a democracy.
To arrive at a democracy, we Americans destroyed a republic.
One of the ways in which the republic was destroyed was through the slow sundering of the 10th Amendment to the Constitution. The 10th was meant to guarantee constitutional devolution of power.
“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 de facto demise of the 10th has resulted in "constitutional" consolidation.
Fair enough, but is that enough? A perceptive Townhall.com reader was having none of it.
In response to “Whodunit? Who ‘Meddled’ With Our American Democracy” (Part 1), the reader upbraided this writer:
“Anyone who quotes the 10th Amendment, but not the 14th Amendment that supplanted it cannot be taken seriously.”
In other words, to advance the erosion of the 10th in explaining who did our republic in, without mentioning the 14th: this was an omission on the writer’s part.
The reader is admirably correct about Incorporation-Doctrine centralization.
Not even conservative constitutional originalists are willing to concede that the 14th Amendment and the attendant Incorporation Doctrine have obliterated the Constitution's federal scheme, as expressed in the once-impregnable 10th Amendment.
What does this mean?
You know the drill but are always surprised anew by it. Voters pass a law under which a plurality wishes to live in a locality. Along comes a U.S. district judge and voids the law, citing a violation of the 14th's Equal Protection Clause.
For example: Voters elect to prohibit local government from sanctioning gay marriage. A U.S. district judge voids voter-approved law for violating the 14th's Equal Protection Clause.
These periodical contretemps around gay marriage, or the legal duty of private property owners to cater these events, are perfectly proper judicial activism. It flows from the 14th Amendment.
If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be.
Put differently, matters previously subject to state jurisdiction have been pulled into the orbit of a judiciary. Yet not even conservative constitutional originalists are willing to cop to this constitutional fait accompli.
The gist of it: Jeffersonian constitutional thought is no longer in the Constitution; its revival unlikely.
A Court System Centralized
For another example of the endemic usurpation of The People, rendering the original Constitutional scheme obsolete, take the work of the generic jury. With his description of the relationship between jury and people, American scholar of liberty Lysander Spooner conjures evocative imagery.
A jury is akin to the "body of the people." Trial by jury is the closest thing to a trial by the whole country. Yet courts in the nation’s centralized court system, the Supreme Court included, are in the business of harmonizing law across the nation, rather than allowing communities to live under laws they author, as guaranteed by the 10th Amendment to the Constitution.
States’ Rights All But Obliterated
Like juries, states had been entrusted with the power to beat back the federal government and void unconstitutional federal laws.
States' rights are "an essential Americanism,” wrote Old Rightist Frank Chodorov. The Founding Fathers as well as the opponents of the Constitution, the Anti-Federalists, agreed on the principle of divided authority as a safeguard to the rights of the individual.
Duly, Thomas Jefferson and James Madison perfected a certain doctrine in the Virginia and Kentucky Resolutions of 1798. "The Virginia Resolutions,” explains historian Thomas E. Woods, Jr., “spoke of the states' rights to 'interpose' between the federal government and the people of the states; the Kentucky Resolutions used the term nullification—the states, they said, could nullify federal laws that they believed to be unconstitutional."
“Jefferson," emphasized Woods, "considered states' rights a much more important and effective safeguard of people's liberties than the 'checks and balances' among the three branches of the federal government."
And for good reason. While judicial review was intended to curb Congress and restrain the Executive, in reality, the judicial, legislative and executive unholy federal trinity has simply colluded, over time, in an alliance that has helped abolish the 10th Amendment.
Founding Faith Expunged
And how well has First Amendment jurisprudence served constitutionalists?
Establishment-clause cases are a confusing and capricious legal penumbra. Sometimes displays of the Hebraic Decalogue or manger scene are taken to constitute the establishment of a state religion. Other times not.
This body of law forever teeters on conflating the injunction against the establishment of a state religion with an injunction against the expression of faith—especially discriminating against the founding faith in taxpayer-supported spaces.
The end result has been the expulsion of religion from the public square and the suppression therein of freedom of religion.
On the topic of religious freedom, Jefferson was prolific, too. The Virginia Statute for Religious Freedom was a crowning achievement for which he wished to be remembered, along with the Declaration of Independence and the founding of the University of Virginia.
Jefferson interpreted "Congress shall make no law respecting the establishment of religion, or prohibiting the exercise thereof"—as confirms by David N. Meyer, author of Jefferson's Constitutional Thought—to guarantee both "an absolute free exercise of religion and an absolute prohibition of an establishment of religion."
Yet somehow, the kind of constitutional thought that carries legal sway today prohibits expressions of faith or displays of a civilizing moral code in government-controlled spheres. Given my libertarian view of government’s immoral modus operandi, I find this amusingly apropos. Still, this is not what Jefferson had in mind for early Americans.
Indeed, why would anyone, bar Nancy Pelosi and her party, object to "thou shall not kill" or "thou shall not commit adultery, steal or covet?" The Ten Commandments can hardly be perceived as an instrument for state proselytization.
Nevertheless, the law often takes displays of the Decalogue or the nativity scene on tax-payer funded property as an establishment of a state religion.
"I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercise," Jefferson expatiated.
He then gets to the soul of the subject: "This results not only from the provision that no law shall be made respecting the establishment, or free exercise of religion but also from the Tenth Amendment, which reserves to the states [or to the people] the powers not delegated to the U.S."
So, dear reader, if there’s one thing we know for sure, it’s that the Russians didn’t deep-six our republic of private property rights and radical decentralization—we did.