In a Constitution explicitly premised on limited powers, the Tenth Amendment reservation of unallocated rights to the people or the states is essentially a “truism” — a restatement of a result that was already obvious to any careful reader. Put another way, the Tenth Amendment “added nothing to the [Constitution] as originally ratified.” United States v. Sprague, 282 U.S. 716, 733 (1931); see also U.S. v. Darby, 312 U.S. 100, 124 (1941) (“There is nothing in the history of [the Amendment’s] adoption to suggest that it was more than declaratory . . . or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted.”). Basically, it’s a rhetorical flourish, a redundant system more fashionable than functional. An aesthetic affectation, like nipples on men. A vestigial reminder of something done better elsewhere. It’s like our national appendix, only less useful, and more dangerous when misunderstood.
Misunderstood, for example, by Newt Gingrich, who wants to somehow “enforce” this creature to “resist expansive federal laws” by methods either incomprehensible and unconstitutional, like “annulment by judicial review.” Huh?
Best not to dwell on the function, which will almost certainly never materialize. Instead, let’s look at the form. In the roll-out, Gingrich bills his “Team Ten” as a way to restore an idyllic past that, honestly, never existed:
Back then, there was a general assumption that life was mostly lived in your local neighborhood. But then you suddenly had a huge increase in government, followed by what Lyndon Johnson called the “Great Society,” — although I would call it bureaucratic socialism.
Yeah, to Hell with… Wait, what? Apparently, tea party revisionism has reached a new fever pitch of delusion. Let’s step back and analyze the evils of the Great Society, which Gingrich would apparently unwind as unconstitutional “socialism.” Classic components listed below, with some Johnson-era creations marked with by asterisk to represent longtime conservative bogeymen:
- Civil Rights Act (1964)
- Voting Rights Act (1965)
- Social Security (1965)
- Medicaid (1965)
- The Corporation for Public Broadcasting (1967) [think “Sesame Street” and “NOVA”]
- The Smithsonian Institution (founded 1800s, endowed by Congress 1930s, funded and constructed in its current iteration 1966-late ’70s)
- The Kennedy Center for the Performing Arts (1971)
- Wholesome Meat Act (1967) [think “Grade A,” etc.]
- Truth-in-Lending Act (1968)
- Endangered Species Preservation Act (1966)*
- Clean Air/Water Acts (1970/72)*
To be clear, what Gingrich maligns as “socialism” has (1) allowed minorities to vote safely, and hold jobs without fear of discrimination; (2) cared for our elderly; (3) enriched our cultural lives at minimal cost to the bottom-line; (4) made food safe; (5) cut back on widespread usury and banking fraud; (6) kept alive a semblance of biodiversity, and; (7) preserved some portion of the environment.
Moreover, none of the above is actually legally controversial. Rather, each represents clearly constitutional exercises of the Commerce Clause (3, 4, 8-11, maybe 1-2); the Fourteenth Amendment’s Enforcement Clause (1, 2); or the general spending power (5-7). But please remember, this is Newt Gingrich’s America. There’s one thing we can thank the Republican Party for: they leave nothing to the imagination about what kind of country they want to create. One that’s poor, unequal, culturally bereft, and mortgaged to big corporations. Vote Gingrich!