10 vs 14

10

The 10th Amendment to the Constitution, for all its brevity, may well have been the most important portion of the original (Constitution plus the near-immediate Bill of Rights) document. It makes clear that the Federal government is a fundamentally limited government, with enumerated powers, not enumerated restrictions. Where the Constitution is silent, the central government is powerless – should later citizens wish the central government to have some novel power, they must amend the Constitution.

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.

That’s it. That’s the whole amendment. Whatever the Constitution says the central government can do, it can do; everything else – everything else – is reserved to the state governments or the people (and the Constitution can further restrict what the state governments can do). This amendment sets up the basic power structure of the United States government.

Now, look around. Does it appear that we have a limited central government with enumerated powers? Where is the constitutional authority for Social Security? for SNAP? for the EPA? For the CDC? For PBS? This is not to say that all such programs are bad or undesirable, just that they would have required an empowering amendment, at least at the time of the adoption of the 10th Amendment.

14

How did this happen? Consider the 14th Amendment, specifically Sections 1 and 5:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Sections 2-4 (linking representation to voting franchise, disqualification from office for insurrection, and validity of the public debt) are extremely important in other ways, but have no direct bearing on the argument I am making here.

Section 1 was intended to be a mechanism by which the state governments of the former Confederacy would be prohibited from effectively continuing some of the effects of slavery by denying former slaves equal rights with their other citizens. It did this by making former slaves unequivocally citizens both of the United States and of their state of residence, and by prohibiting the state governments from “abridging the privileges or immunities” of (some of) their residents, or denying them due process. Thus, at least some of the restrictions on the central government are now extended to the state governments as well. Section 5 then empowered Congress to do whatever necessary to enforce this.

I applaud the intention behind this amendment, which was noble and honorable – to ensure that former slaves were brought into full participation as citizens of the United States. However, history shows that the 14th Amendment failed to accomplish what it intended. The treatment of former slaves (and, for that matter, Black freemen) in the following years, North and South, is a continuing source of shame and grief for this country.

Conflict

But if it didn’t accomplish what it intended, it did accomplish the (perhaps) unintended effect of a de facto repeal of the 10th Amendment. Prior to the 14th Amendment, state governments were allowed to do anything the Constitution did not specifically forbid, while the central government was only allowed to do what the Constitution specifically empowered. After the 14th Amendment, any power of a state government (but not the central government) could, arguably, be regarded as abridging the “privileges and immunities” of its citizens. This has the effect of moving the state governments solidly below the central government in the power structure since, not only are they prohibited from doing some things that they could formerly do, but also the decision as to which things precisely are prohibited resides with the central government (either Congress, who may make laws pursuant to Section 5, or the Supreme Court, who will rule on the matter via judicial review). The 14th Amendment doesn’t say, “The tenth article of amendment to the United States Constitution is hereby repealed” but it might as well have, at least as it began to be interpreted by the courts and Congress.

On the surface, it seems that this would only restrict the state governments, not further empower the central governments. Thus, one might think that the people would have even more liberty after this amendment than before. However, the syllogism “what is forbidden to the central government is also forbidden to the state governments” has as its contrapositive, “what is allowed to the state governments is allowed to the central government.” It is in this form that it began to inexorably increase the size and scope of the central government.

As an aside, why is it that all the changes brought on by the 14th Amendment tend to reduce personal liberty? Why is it that, for example, state gun restrictions, which do seriously abridge the privileges of U.S. citizens, are never substantially affected by referencing this new regime. Yes, I understand that there have been recent cases like McDonald v. City of Chicago that deal with some of the more egregious statutes, but even the routine state laws (from the perspective of this non-lawyer) seem to facially fall afoul of the combination of the 2nd and 14th Amendments.

Back to the main argument – the structural changes wrought by the 14th Amendment are a serious problem: as stated earlier, one of the key features of American government is a limited central government with enumerated powers, this feature is created largely by the 10th Amendment, and the 14th Amendment (as interpreted) essentially repeals the 10th Amendment. What to do about this in USA version 2?

Resolution?

One thing that helps is that in version 2, we won’t have the legacy issue of slavery and the concomitant bizarre citizenship issues to deal with. That is, the specific problems that led to the necessity of the 14th Amendment won’t be there. However, the real structural problems that the 14th Amendment causes still have to be dealt with at some level. Without some modicum of Federal oversight, states could get pretty tyrannical, perhaps in ways that couldn’t be easily cured just by moving to another state.

In a paper that explores a number of issues surrounding intrastate secession, Glenn Reynolds suggests that perhaps it would be advantageous for the Federal government to provide a ceiling as well as a floor for state laws. That is, not only must state laws provide certain legal regimes like due process, nondiscrimination, etc. but also state laws may not restrict beyond a certain point without allowing a local (say, county-level) ability to opt out. He suggests that this might go a long way toward defusing the current tensions between urban and rural areas of a largely rural state that is numerically dominated by its urban centers (say Illinois, New York, Oregon).

This seems to get at the fundamental structural issue of federalism – we clearly want a broad variety of possible state governments, but only within limits; we wish for the central government to forbid both tyrannical and anarchical state governments. I would posit, however, that the arc of history seems to show that the natural rise of anarchical state governments is highly unlikely. Governments seem rarely to go overboard in allowing their citizens personal freedom.

The approach taken by USA version 1 to limiting the central government worked quite well for many years; perhaps this is the correct approach to limiting both the central government, and the state governments. Augmenting this approach with some limitation on state governments might look something like this:

  • central government (but not necessarily state governments) limited to enumerated powers
  • additional (specifically non-exhaustive) list of powers specifically prohibited both to central government (Bill of Rights) and to state governments
  • additional exhaustive list of requirements for state governments (roughly the equivalent of the current “republican form of government” clause, together with nondiscrimination and perhaps due process requirements)
  • additional (specifically non-exhaustive) list of powers allowed to state governments but only with the ability of localities to opt out of enforcement

The current regime seems to have completely lost the ability to rein in the central government. Surely a return to the 10th Amendment, combined with a more modest approach to the reason for the 14th, would be the way to “secure the blessings of liberty to ourselves and our posterity.”