Interpreting the Constitution is a favorite American pastime. Differing opinions on just one sentence fill libraries to overflowing, and land legal cases in appeals courts and supreme courts from coast to coast.
The Ninth and Tenth Amendments in particular are the basis for numerous "soap box" issues, precisely because their language is opaque and widely open to interpretation. Neither grants or denies specific powers; both provide instructions for how to read and interpret the rest of the document.
The Ninth Amendment reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Tenth Amendment reads: 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.
Both amendments have been the subject of differing opinions long before they were ever added to the Bill of Rights, and both have been the subject of enormous controversy ever since.
Alexander Hamilton, for example, asked of the Ninth during the original debate over the Constitution, "Why declare that things shall not be done which there is no power to do?"
And in 1962, former Mississippi Gov. Ross Barnett cited the Tenth to bar James Meredith from enrolling at Old Miss. "[M]y conscience is clear," Barnett said, justifying the state's refusal to integrate schools. "I am abiding by the Constitution of the United States."
Interpretations of the Tenth amendment have come up again the Mississippi legislature recently, and teabaggers have climbed on board for the ride. Although it's not the scope of this column to add an interpretation to either amendment, the Tenth in particular has spent considerable time lately in the national limelight.
Constitutional scholars say that interpretations of the Tenth generally fall into two camps: The first group says that the federal government does not have any powers except those specifically granted by the Constitution (or sometimes, the first eight amendments); the second group holds that the Tenth grants Congress the authority to do pretty much anything that isn't specifically prohibited by the first eight amendments. One sentence, two polar opposite opinions.
It's the first interpretation that conservative "teabaggers"—Libertarians, members of the Constitution Party and some Republicans—have latched on to. Mississippi falls into what the John Birch Society has dubbed the "Tenth Amendment Movement," by agreeing with this limiting interpretation and "reaffirming" it through legislation.
House Concurrent Resolution 69 reinforces "the fundamental principle and authority of State Sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers and discouraging the Federal Government from imposing certain restrictive mandates." The resolution adds the Legislature's interpretation of the amendment saying that it "defines he total scope of federal power as being that specifically granted by the Constitution of the United States and no more," and that "the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states." It goes on to say that "many federal mandates appear to be in violation" of the Tenth without specifying what those are, but says it's up to the Mississippi Legislature to remind the federal government of its responsibility.
Much of the same language is found in Senate Concurrent Resolution 630, but it goes a step or two further in issuing a cease and desist order of "mandates that are beyond the scope of these constitutionally delegated powers," and demands that "compulsory legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed."
The breadth of federal legislation that falls under the scope of SC630 is staggering: federal taxes, public education, food and drug policy, anti-discrimination laws (including those enforcing integration), printing money—essentially any law that is not specifically covered in the first eight amendments is, according to the Mississippi legislature "beyond the scope" of federal congressional power according to the U.S. Constitution.
Would lawmakers have us return to 1776 and slavery? If not, how many of the amendments enacted after the Tenth should be left? Should women and African Americans be disenfranchised? Do we put prohibition back on the books, or does it stay off? Do we immediately stop accepting federal funds that require the state to match all or part, like Medicaid? Or do we accept the funds but "without strings," to spend any way we see fit?
Rep. Steve Holland, D-Plantersville, Jack Gadd, D-Hickory Flat, and Thomas Reynolds, D-Charleston, attempted to show their disdain for HC69 through a pair of amendments ruled "improper." The first, from Holland, states: "Amend on line 82: The U.S. Congress, along with the Mississippi Legislature, supports, loves and respects Brett Favre during his latest vocational tribulation no matter what is decided." The second, from Gadd and Reynolds, reads: "Amend after line 86: This discussion on this resolution shall end and we will fix the car tag issue."
Somehow, both of those make more sense the rolling back the clock 230 years.
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