Plank #2:  Repass the 10th Amendment—This Time With Teeth.

In a better world than this, the 10th Amendment to the Constitution would not have been necessary?  Why?   Because no honest lawyer or politician could have justified the Federal government’s arrogation of powers not enumerated in the document itself.   Madison was not without grave faults, the most serious of which were cowardice and pliability, but he appears to have known that the Americans who feared the possible abuses of power that any loose construction of the Constitution would encourage, and he proposed the Bill of Rights as a means of mollifying resentment.

Academic historians and other professional liars will retort that the drafters of Constitution could not anticipate the future needs of a growing country.  Of course they could not, and that is why they put in a provision for amending the document.  Even here they somewhat failed future generations by not suggesting guidelines, such as prohibiting or making more difficult the passage of an amendment contradicting a fundamental principle in the original document.  The 14th Amendment was passed illegally and has been wildly misinterpreted by judges, but even in its restricted form it violates the confederal nature of the Union.

Supposing we could repass the 10th Amendment, what sort of teeth could be added?  We could imitate an ancient custom and inflict serious penalties on those who even proposed a measure that violated an established law.  In the case of judges who made a ruling or Congressman and Presidents who proposed a law that unconstitutionally extended the power of the Federal government to infringe the authority of the state, a charge of treason could be made and the penalty upon conviction would be permanent loss of income, pension, and voting rights.  In such a case, a mere majority of jurors should be sufficient.

Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina

11 Responses

  1. Andrew G Van Sant says:

    Before I read this, earlier today I said to my wife that I thought anyone holding any government office who knowingly lied while performing his duties should be charged with a felony and anyone who proposed any unconstitutional act should be charged with treason.

    One problem is that if the States recovered the powers usurped by the federal government there would be no improvement, and perhaps things would be even worse than they are now.

  2. James E. Easton says:

    Blind Dog finds bone! Wikipedia gets something right! A part looks correct.

    “Since World War II, the United States Supreme Court has consistently ruled against cases challenging the powers of Congress. In effect, the Supreme Court has decided that Congress has the power to determine the scope of its own authority. Justices and commentators have publicly wondered whether the tenth amendment retains any legal significance.”

  3. Vince Cornell says:

    News media heads tell bald-faced lies, and they face no consequences. The Faucis and medical wonks make up “scientific facts” out of thin air, creating chaos and ruining lives, and they face no consequences. Politicians sell out their own country and constituents to China, and they face no consequences. Bishops and higher ecclesial ranks turn tail and leave their flocks abandoned at the first sight of anything even resembling danger, and they face no consequences. Wall Street tycoons manipulate the market in their favor, creating one economic bubble after another, and they face no consequences. And even the little people get to fornicate and rack up massive debts with the hopes that, through contraception and abortion and debt forgiveness, they too can participate in the no consequence clan.
    .
    No consequences, that is, in this world.
    .
    I would vote for any candidate that put 100% of their effort behind nothing more than making people face the consequences of their action. I might even bother to donate as much as $5 to their campaign! Where’s a good Shylock when you need one?

  4. David Wihowski says:

    Most of my “conservative” friends look at me with a complete blank response (i.e. “what in the world are you talking about?”) when I mention that it might be a good thing for states and localities to gain back real power. They act like I’m fabricating things out of thin air when I say things like: “States used to have the power to…” or “The Federal government never used to regulate…” Americans think only in national or global terms. They don’t frequent mom and pop businesses, but would rather go to Walmart or Target. They would rather eat at a national chain restaurant than venture trying things at a purely locally owned establishment. They are “programmed” to think big.

  5. Frank Brownlow says:

    Power is intoxicating both to the person who has it, and the people on whom it is exercised.

  6. Clyde Wilson says:

    Jefferson and Calhoun both indicated that the only remedy with teeth was determined State nullification. Where can that be found today?

  7. Thomas Fleming says:

    Nowhere, but nullification is on the state level, though what is needed is perhaps:

    RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who adminster the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiesecence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

  8. Gregory Fogg says:

    The delegates to the 1787 convention exceeded their mandate. It’s been downhill ever since.

  9. Gregory Fogg says:

    There’s an interesting article up right now at Abbeville Institute by a fellow named Earl Starbuck dealing with nullification as opposed to judicial review.

  10. Andrew G Van Sant says:

    The problem is that State politicians will selectively apply the principle to promote the liberal agenda. Let the Federal Government destroy the right to keep and bear arms while protecting the right of mothers to kill their unborn babies. We are way past using nullification to protect our liberties.

  11. Thomas Fleming says:

    That is certainly true as things stand today, but viewed even in the limited context of the imaginary platform in its first phase, the system would eliminate from the citizen class 40-55% of the voters who put those politicians in office. A political system is like the environment imagined by Greenies: If I toss a cigarette butt into Charleston harbor, some Eskimo village will be starved in a yer for lack of whale blubber. If we further impose such planned restrictions as serious literacy requirements, a 25 year waiting period, forfeiture of naturalized citizenship by those who commit a felony, etc., and the proposed penalties for politicos who even propose extension of Federal powers, restoration of republican government becomes almost inevitable, so long as only the citizens are permitted to sit on school boards. Of course, this is not a sufficient condition but it is necessary, and if such steps are not taken–as they most certainly will never be–than any interest in politics is revealed as entirely pointless except as a doomed attempt to preserve one’s economic interests.