The Case of the Clueless Conservatives: Chief Justice John Marshall Versus the “10thers” (by Stephen Jones)

This is a post by contributing writer, Stephen Jones, who is a progressive political activist and a resident of Las Cruces, New Mexico.

After nearly a year of watching the antics of raving bands of right wing fringe groups and their flaky leaders both inside and outside of Congress; among them the “teabaggers,” the “birthers,” the “deathers,” Rep. Michele Bachmann, and neo-Confederate Rep. Joe Wilson, just to name a few, we are now confronted by yet another brigade of the insane, this time in the disguise of some sort of pseudo-intellectual wavers of the United States Constitution, dubbed the “10thers.”

The “10thers” are a group of right wing extremists obsessed with telling us that all legislation and actions of the Congress and the President are usurpations of power and unconstitutional, thanks to the provisions of the 10th Amendment. Unlike the cartoonish Orly Taitz, the “10thers” sound as though they actually made it past the 6th Grade literacy exam. Peel back the Constitutional rhetoric and one finds more of the same.

This obsession with the 10th Amendment comes and goes amongst extreme Conservatives. Generally it comes into vogue whenever Democrats hold a majority in the Congress or possession of the White House. Then when it is the GOP in the driver’s seat, the 10th Amendment is quickly forgotten. After the election of Barack Obama, Republican legislative majorities in seven states, Alaska, Idaho, Louisiana, North Dakota, Oklahoma, South Dakota, and Tennessee, quickly passed “state sovereignty” resolutions based on the 10th Amendment, and Republican extremists have introduced similar resolutions in 30 others.

The 10th 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.” This sentence, taken alone, seems straightforward enough. It suggests, if read by itself, that the framers meant for any power not specifically written into the Constitution to be outside the authority of the Congress, the President, or the Federal Government.

This argument is as old as the Republic itself. In fact it precedes the United States Constitution. It was this very issue that brought the framers to Philadelphia in 1787 in the first place.

Under the Articles of Confederation, our first Constitution, the Federal Government was forbidden to enact or enforce legislation without the consent of the legislatures of the States. Article II of the Articles of Confederation, reads, “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.”

It was this Article, which made the national government a de facto fiction, that spurred the states to call a Constitutional Convention to alter it. Instead of altering it, the framers tossed the Articles into the trash bin of history and emerged with the United States Constitution, which was ratified in 1789.

In place of Article II of the Articles of Confederation, Article IV of the U.S. Constitution reads, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

To enact the laws of the nation the framers created the Congress, consisting of the House of Representatives and the Senate, and gave that body the power, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

That the framers considered this Congressional law-making function of the Federal government paramount can probably be assumed from the fact that they placed this power of Congress in Article number One of the Constitution.

To win ratification over the objections of the Anti-Federalists, the framers agreed to the language of the 10th Amendment, so long as the language was significantly watered down from its ancestor in the Articles of Confederation, which was significant indeed, considering that the Amendment says, “Powers not delegated to the United States by the Constitution.” (See Article I and Article IV, cited above.)

This “10ther” argument is nothing new. This year it has been raised over the health care debate, and to charge the Democratic Congress and President with illegitimacy, and couch the charge with high-sounding “constitutional” authority. “Where in the Constitution does it say what kind of light bulb I can have,” the indignant “10thers” ask?

During the Clinton Administration the 10th Amendment was raised by the extremist right against Congressional passage of the Brady Bill and the Clinton tax bill of 1993. In the 1960’s the extremist right claimed the 10th Amendment protected the States against enforcement of the Civil Rights and Voting Rights Acts. The right raised the issue of the 10th Amendment against Franklin Roosevelt’s New Deal, and against Theodore Roosevelt’s Square Deal. In the years leading up to the Civil War, the 10th Amendment was invoked in defense of slavery.

Senator John C. Calhoun of South Carolina engineered the “nullification” of the Federal Tariff law in his home state. In response, President Andrew Jackson sought, and received authorization from Congress to send troops into South Carolina to enforce the Tariff. The Army proved unnecessary, before Jackson could begin firing, South Carolina quickly rescinded its “nullification” act.

The Army did take action in 1794, however, when 18th Century “10thers” in Western Pennsylvania refused to pay a Federal whiskey tax. As President and Commander in Chief, George Washington personally led Federal troops across Pennsylvania, put down the tax rebellion, and enforced the Federal rule of law.

That the extreme right continues to grab a single sentence in the U.S. Constitution again and again to oppose and attempt to de-legitimize the actions of the Congress or the Federal Government whenever it is in the hands of Democrats (or George Washington) does not surprise me. What is astonishing is that progressives always seem so bewildered by the argument every time they raise it.

Our second Chief Justice, John Marshall, an old Federalist, friend of George Washington, and an appointee to the Supreme Court by President John Adams, wasn’t bewildered when it was raised in McCulloch v. Maryland, which was argued before the Court in 1819.

This landmark case established first of all, that Congress had implied powers granted by the Constitution, whether the power was specifically enumerated in the text or not, and second, that no state had a right to impede the laws of the Congress and the Federal Government.

In McCulloch, the State of Maryland challenged the constitutionality of Congress using its legislative authority to charter a Federal corporation, the Bank of the United States, a power not specifically enumerated in the Constitution. In 1818, Maryland, in opposition to the Federal Government, levied a tax against any bank “not chartered by the State legislature.”

In a 7-0 decision of the Court, Chief Justice Marshall ruled, “Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment ... omits the word ‘expressly,’ and declares only, that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people.’”

In the “necessary and proper” clause of Article I, Chief Justice Marshall said the Court found the implied powers to legislate, and Federal authority to enforce the laws enacted by Congress. Whether a power needed to be specifically enumerated in the text of the Constitution, Marshall wrote, “This provision is made in a constitution, intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been … an unwise attempt to provide … for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.”

As to the issue of “State’s rights” to defy the authority of the Federal Government, the Court ruled against Maryland. Speaking for the Court, Marshall wrote, “This was not intended by the American people. They did not design to make their government dependent on the States.”

The idea that the Congress has the right to make the laws has been established since 1789, contested before the Supreme Court and decided repeatedly by the courts since 1819. As that old Conservative, Alexander Hamilton, wrote, “If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.”

That, as Alexander Hamilton, would tell you, is why the Congress can, if it so desires, legislate as to what kind of light bulb you can buy.

To read more posts by contributing writer Stephen Jones, visit our archive.