Monday, February 19 , 2018, 12:43 pm | Fair 56º

 
 
 

Harris Sherline: Whatever Happened to the 10th Amendment?

It's often overlooked amid the continuous expansion of the federal government

Whatever happened to the 10th Amendment to the Constitution? Until recently, it seems to have often been overlooked in the continuous expansion of the federal government that has taken place since the Founding Fathers wrote the Constitution.

However, it’s beginning to appear that it has merely been hiding behind the scenes, waiting to once again be called into action. And, now may be the time.

Wikipedia notes: “The Tenth Amendment is similar to an earlier provision of the Articles of Confederation: ‘Each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.’ After the Constitution was ratified, some wanted to add a similar amendment limiting the federal government to powers ‘expressly’ delegated, which would have denied implied powers. However, the word ‘expressly’ ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not amend the Necessary and Proper Clause.”

“The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution, is generally recognized to be a truism. In United States v. Sprague (1931) the Supreme Court noted that the amendment added nothing to the (Constitution) as originally ratified.”

“From time to time states and local governments have attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth
Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby, 312 U.S. 100, 124 (1941), reads as follows:

“The amendment states a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers ...”

Fast forward to 2012 and we see that this little-known amendment is rapidly becoming the center of the debate over the expansion of the federal government’s powers that has been taking place since the Obama administration has taken the reins of government and may well become the big gun of the resistance to the takeover of the American health-care system. Michael Boldin, founder of the Tenth Amendment Center, asked: “Will 2010 be the year of the 10th?”

Answering his own question, Boldin noted, “With people looking to resist D.C. through state laws on everything from national health care to medical marijuana, the 10th Amendment appears ready to be front and center in the national debate this year.”

The reason is that state legislatures are waking up to the potential of this sleeper provision in the Constitution. Can the little-known and generally ignored 10th Amendment end up saving the nation from expansionist government? It remains to be seen, but there is an encouraging trend in this direction.

The Tenth Amendment Center, a Los Angeles-based think tank, notes: “In 2009, seven states passed sovereignty resolutions under the 10th Amendment to the Constitution of the United States. … Already, over a dozen states are considering laws or state constitutional amendments that would effectively ban, or nullify, any proposed national health-care plan in their state, and we expect that number to reach at least twenty in 2010. ... The principle behind such legislation is nullification, which has a long history in the American tradition. When a state nullifies a federal law, it is proclaiming that the law in question is void and inoperative, or non-effective, within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

“Nullification has been used to stand up for free speech, resist the fugitive slave laws, reduce tariffs and more. It’s a peaceful and effective way to resist the federal government, and might be our only hope for moving towards the constitution. Legislators drawing this kind of line in the stand should be commended.”

The number of Americans who want to drive back the expansionist Obama administration is increasing.

— Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who as lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his blog, Opinionfest.com.

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