The Wrongs of Rights 5: The Forgotten 10th Amendment

The Feds shouldn't be responsible for everything.

In this series, we've examined the difference between core natural human rights and civil rights; seen how so-called positive "rights" are not rights at all but rather an anti-right that destroys real rights, and looked at the devastating consequences that occur when a non-right is falsely elevated to the status of a right.

Creating new rights out of whole cloth is not a costless feel-good exercise; it is corrosive and destructive, and left unchecked leads to an all-powerful government.  If everything you need is a right, then you find yourself in the situation described by Gerald Ford:

A government big enough to give you everything you want is a government big enough to take from you everything you have.

Our Founding Fathers wrote a matchless Constitution well suited to defending our freedom over the centuries.  They didn't think of everything, and they were unable to address some things like slavery which had to be corrected later at great cost, but they did an amazing job of dealing with so many of the major pitfalls that robbed freedoms in civilizations past.

How is it that they overlooked this possibility of warring rights?  Did they miss a trick somewhere?

Actually, they didn't.  The problem is not that they forgot something, but that we have: namely, the Tenth Amendment.

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.

In Division There Is Safety

If there was one overriding fear in the hearts of our Founders, it was of a too-powerful government.  Every line in the Constitution is suffused with the need to limit the growth of government and to place checks on its power, the better to preserve the liberties of the people.

It would be hard to point out the single most brilliant innovation of our Constitution, but if we must pick one, there aren't many greater ideas than that of separation of government powers.  A unified, single-point government is almost invariably going to be by far the most powerful entity in the country; no single other force could successfully oppose it.

So the Founders split apart the Federal government into three co-equal branches, always competing for power and authority with the other two.  In this way, no one branch could become all-powerful because the other two would not permit it; and, occupied with intra-governmental struggle, the people would be more likely to be let alone.

In school, we all learned about the three branches of government: the Executive, Legislative, and Judicial.  The powers interact, interlock, and on occasion override each other, like a complex game of "Rock, Scissors, Paper."

The legislature makes the laws, the judicial branch interprets them, but the executive does the enforcement - except that the legislature has to grant funds to the executive to do the enforcing and confirm the appointment of executive officials.  The President is the Commander in Chief of the military, and judges are appointed for life - but the legislature can impeach any of the above and throw them out of office.  And so on; the history of our country is a constant tussle where sometimes the Executive is on top, other times the Congress, and occasionally the Supreme Court.

This is the doctrine of "separation of powers" familiar to most of us, but it is not the only example of separation of powers found in the Constitution.  In the mind of the Founders, it wasn't even the most important one.

Of far greater power to protect the freedoms of the people are those entities that have the most day-to-day interaction with them: that is, the state and local governments, to which the Tenth Amendment reserved all other powers not specifically granted to the Federal Government by the Constitution.  The list of "all other powers" includes, but is not limited to, the power to regulate drug use, the power to regulate education, and many, many others.

The Mountains are High, the Emperor Is Far Away

When you think of "The Government", who exactly are you thinking of?  Probably the federal government - the IRS, say, or the President.

But when you interact with the government personally, on a day-to-day basis, who is it?  Your state, or maybe your city.  Renewing your drivers license, paying a parking ticket, getting pulled over on the freeway - none of these interactions are with the Feds.  Sending your kids to public school?  Not the Feds, at least until very recently.  Driving down the road?  Unless it's an interstate, it's the responsibility of the state or town.

There's good reason for this.  If your road is potholed, do you think the President cares?  What's he going to do to help?  He probably can't even find your road on the map.

Your mayor, though, or selectmen - now they might actually know where your road is.  They might listen to you.  That's why we've argued that all government actions should always be taken as close to the citizens as possible - state government is less efficient than local government, and the federal government is the least efficient of all.

Pushing authority up the ladder to higher levels of government sounds like a way to make things more efficient - economies of scale, and all that - but in reality, the opposite takes place.  The Wall Street Journal gives a telling illustration:

A friend of mine is a New Hampshire "selectman," one of those municipal offices Tocqueville found so admirable. In 2003, a state highway inspector rode through and condemned one of the town's bridges, on a dirt road that serves maybe a dozen houses.

That's the bad news. The good news was the 80/20 state/town funding plan, under which, if you applied to Concord for a new bridge, the state would pay 80 percent of the cost, the town 20. So they did. The state estimated the cost at $320,000, so the town's share would be $64,000. Great. So the town threw up a temporary bridge just down river from the condemned one, and waited for the state to get going. Six years later, the temporary bridge has worn out, and the latest revised estimate is $655,000, such that the town's share would be $131,000.

That's the bad news. The good news is that, under the "stimulus" bill, they can put in for the 60/40 federal/state bridge funding plan, under which the feds pay 60 percent, and the state pays 40, and thus the town would be on the hook for 20 percent of the 40 percent, if you follow. If they applied for the program now, the bridge might be built by, oh, 2015, 2020, and it'll only be $1.2 million, or $4 million, or $12 million, or whatever the estimate'll be by then.

But who knows? By 2015, there might be some 70/30 UN/federal bridge plan, under which the UN pays 70 percent, and the feds pay 30, and thus the town would only be liable for 20 percent of the state's 40 percent of the feds' 30 percent. And the estimate for the bridge will be a mere $2.7 billion.

While the Select Board was pondering this, another bridge was condemned. The state's estimate was $415,000, and, given that the previous bridge had been on the to-do list for six years, they weren't ready to pencil this second one in on the schedule just yet. So instead the town put in a new bridge from a local contractor. Cost: $30,000. Don't worry; it's all up to code-and a lot safer than the worn-out temporary bridge still waiting for the 80/20/60/40/70/30 deal to kick in. As my friend said at the meeting: "Screw the state. Let's do it ourselves."  [emphasis added]

What is true between the town and the state is equally true between the states and the Feds.  By dangling the hook of matching funds, the federal government takes away power and control from the states... until, eventually, the funds don't arrive, and the states have lost the power and the money.

Why did the states allow the feds to muscle in on road-building, anyway?  The Constitution grants the Federal government power to regulate interstate commerce, so it's not entirely unreasonable for the Feds to build the interstate highway system.  And why would the states object?  After all, they got a great new modern road for free.

Unfortunately, the program created a federal highway bureaucracy; once Eisenhower's expressways were all built, the bureaucrats had to find something else to do; now, the feds grab highway funds from all states through the federal gas tax, but return the funds slowly, only in part, and with big strings attached.

The same is true of education: where once the feds concerned themselves only with the land-grant colleges built on federal land, now No Child Left Behind reaches down into each and every schoolhouse and we see such edifying spectacles as a schoolchild writing to President Obama asking for help fixing her school.  She even got a mention in one of his speeches:

I think about Ty'Sheoma Bethea, the young girl from that school I visited in Dillon, South Carolina - a place where the ceilings leak, the paint peels off the walls, and they have to stop teaching six times a day because the train barrels by their classroom. She has been told that her school is hopeless, but the other day after class she went to the public library and typed up a letter to the people sitting in this room. She even asked her principal for the money to buy a stamp. The letter asks us for help, and says, "We are just students trying to become lawyers, doctors, congressmen like yourself and one day president, so we can make a change to not just the state of South Carolina but also the world. We are not quitters.

We are not quitters.

Great!  Uplifting!  Fat lot of good it did:

In Dillon, though, $900,000 in stimulus funds for the district - half of what superintendent Ray Rogers expected earlier in the year - will reduce cutbacks, but won't stop the ceiling from leaking or the paint from peeling any time soon.

CNN reports that the school will continue to use 14 mobile classrooms, and teachers will still have to run across a playground to use the bathroom.

Why on earth is fixing the ceiling the president's job?  Shouldn't it be the job of the local school board or principal?  Even better, why exactly is the apostrophically-named Ms. Bethea stuck in a collapsing school: why can't she choose to go elsewhere?

Why should she go to the Federal government for help, when it's the local government's incompetence and the totalitarian instincts of the teachers unions that created the problem in the first place?  Pushing any problem up the tree only pushes the solution farther away.

The genius of the Constitution was in balancing the forces of government, not only between different branches of the federal government, but between state, local, and Feds as well.  That's why senators were originally elected by the state legislature, not the people: they weren't there to represent the people, they looked out for the interests of the governments of their states.

When this was changed in 1913, an important restraining mechanism was destroyed.

Today, states have gotten so used to being bribed by the federal government that they've forgotten how to solve their own problems by themselves.  When new roads or transit need to be built, the governor doesn't try to find the money; instead, he calls up the state's Congressmen so they can get Uncle Sam to pay for it, giving up control of the project along the way.  When Uncle Sam runs out of money or becomes beguiled with some other problem, the project stalls.

One of the potentially excellent side effects of our current national financial difficulties is that the states are so deep in debt that it's not possible for the Federal government to bail them out.  California has begged, pleaded, threatened, blustered... all to no avail, and now they're reduced to paying the disabled in IOUs.

The fact that California's politicians and union employees are still paid in cold hard cash while ordinary citizens are not receiving their tax refunds may have a beneficial effect next election.  Sink or swim, they're on their own: California made its own problems and must solve them by itself.

In so doing, the states may rediscover the modern Golden Rule: He who has the gold, makes the rules.  If you take Uncle Sam's shilling, you do things Uncle Sam's way, and then what power do you have?  Basically, just a nice office from which to do a lot of butt-kissing of your lords and masters in Washington.  What fun is that?

What government gives, government can take away, to lesser governments as well as to individuals.  Again, the Journal:

[Senators] Rockefeller and Lautenberg aim to "reduce per capita motor vehicle miles traveled on an annual basis." [Congressman] Oberstar wants to establish a federal "Office of Livability" to ensure that "States and metropolitan areas achieve progress towards national transportation-related greenhouse gas emissions reduction goals." ... In the name of "multimodal planning," for example, road-use taxes could be diverted, as Messrs. Rockefeller and Lautenberg suggest, to "increase the total usage of public transportation."

For lo these many years the federal government has collected national gas taxes and then sent the money back to the states for road repairs... and now, it's decided it would rather use the money for something else.  The feds have decided that Roads Are Bad, so you should not have them.

What's to be done?

Sen. Kay Bailey Hutchison (R., Texas) has in this regard introduced the "Highway Fairness and Reform Act of 2009," which would explicitly allow states to opt out of the federal financing system. A companion bill has been introduced in the House.

If a significant number of states opted out of the federal system, it would collapse and responsibility for roads would revert to the states. The vast majority of road users would benefit from such a change. And, if "livability" standards were deemed desirable, local preferences would determine them, rather than federal "greenhouse gas emissions reduction goals."  [emphasis added]

What's good for roads is good for education, law enforcement, taxes, building codes... in fact, for pretty much everything except national defense and truly national transportation infrastructure.  In other words, exactly the way the Founders intended it, and exactly what's called for in the Tenth Amendment.

Vive La Difference!

For the more independent and different the fifty states are, the more secure our real rights will be.  If New Jersey strips the religious of their right not to participate in blasphemies, they can move to Pennsylvania.  If Massachusetts wants to tax everyone to provide health care for all, people who don't like it can move elsewhere until the failed system collapses.

California has long overtaxed its citizens with many of the most productive leaving for Arizona, Colorado, and elsewhere; their legislators brought poverty on themselves and will have to learn the hard way, but at least ordinary citizens have a viable escape route.

By allowing the different states to be different, you can find a place that suits you while still remaining an American.  Do we really want a giant, all-powerful national government forcing everything in our lives to be exactly the same all across the fruited plain?

If you don't like what's decided for you... where will you go?  Moving to Tazmania is a whole lot bigger step than moving to Texas.

The great French political writer Alexis de Tocqueville summed up the issue this way:

It is in the township that the strengths of free peoples resides... Municipal institutions are for liberty what primary schools are for science; they place it within reach of the people.

We're supposed to be a government "of the people, by the people, for the people"?  It would be hard to argue that we are that today; and now, you know why.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Bureaucracy.
Reader Comments
States are starting to claim the 10th Amendment and demand that the Feds butt out. Latest - Nebraska and Texas.
July 27, 2009 10:25 AM
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