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The Tenth Amendment; Forgotten, But Not Gone

by Donald A. Tevault

    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.

The founding fathers of our country believed in a small federal government with limited powers. So, accordingly, they wrote a constitution that is short, sweet and to the point. In it, they enumerated the powers and the duties of each branch of the federal government. Then, in an attempt to ensure that the federal government would remain small and unobtrusive, they added the Bill of Rights. It's hard to read the news without seeing something mentioned about one of these rights. One that's never mentioned though, is the tenth amendment.

Since the days of Franklin Delano Roosevelt, the tenth amendment has been completely ignored. As a result, the federal government is now doing all kinds of things that the constitution does not authorize it to do. Let's look at some of these things.

  • The National Endowment for the Arts. Sure, the Constitution says that Congress is to promote the "useful Arts". (Article 1, Section 8) But, the only way they are authorized to do that is by "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Nowhere does the Constitution say that the federal government is to sponsor the arts. Yet, we now have the National Endowment for the Arts (NEA) which does just that.

    One could argue against the NEA for various reasons. The most often heard complaint is that the NEA sponsors art that is either so bad that it could never be commercially viable on its own, or that it sponsors art that many people would find offensive. A few years ago, an artist used an NEA grant to immerse a crucifix in a jar of urine. Karen Finley, a stage actress, used an NEA grant to produce a play in which she poured chocolate syrup over her own nude body. But, to argue against the NEA solely for this reason is missing the point. The most important point is that the NEA is unconstitutional. If someone wants to produce a work of art, then that person can either fund it or find private investors.

  • Medicare. Here's a program that's rife with waste, fraud and abuse. Fraudulent claims cost U.S. Taxpayers millions of dollars every year. The Medicare system also limits the freedom of our senior citizens to receive the treatment that they need. Doctors who participate in the system have to either follow dictatorial rules, or be booted out of the system. Also, federal involvement in the medical system increases medical costs for everybody. There is no incentive for medical providers to compete for our dollars. Our senior citizens could be better served if the government were to phase out the Medicare system, and allow the private medical insurance industry to take over. That way, seniors could get the coverage they want at more affordable prices. But again, to argue against Medicare solely for these reasons is missing the point. The constitution does not authorize the federal government to get into the medical insurance business. Therefore, according to the tenth amendment, the federal government needs to stay out of it.

  • Social Security. I'm sick of hearing politicians talk about their plans to "save" Social Security. Social Security is a Ponzi scheme that would be illegal in the private world. By its very design, it was doomed to failure from the beginning.

    The money that the current generation of workers is paying in does not go into an interest-bearing account that is earmarked for each individual person. Rather, the money is being used to pay the current generation of retired senior citizens. The big problem is that people are now living longer than they did in Franklin Roosevelt's era. So, the average age of the U.S. population is rapidly increasing. As time passes, there will be fewer and fewer workers to support the pensions of the retired seniors. Also, the fact that people are living longer means that workers could end up having to support two generations of seniors at once. The 60-something generation and their parents could be drawing Social Security at the same time. In order to support this many retired people, Social Security taxes will have to become prohibitively expensive. If we could phase out the current system, and phase in a privatized, investment-based system, everyone would be better off. Retired seniors would get a better return, and current workers would be saving for themselves, instead of paying seniors' benefits. To make the system work though, it would have to be one of many choices in the world of retirement planning. Competition would help ensure that people get the most for their money.

    Even with all these negatives, the biggest problem of Social Security is that universal retirement planning for the citizenry is not a constitutional function of the federal government.

  • The Department of Education. This department has never educated even a single child. It's a huge, bloated bureaucracy that spends billions of dollars meddling with local educational systems. As this department has grown in both influence and spending, the quality of this country's educational systems has declined. Educational quality would increase if this Department were eliminated. State and local governments would be free to implement innovative reforms without approval from Washington. A locally implemented system of "school choice" would go a long way toward improving our children's education. But, once again, the biggest problem with federal involvement in education is that it is unconstitutional.

There are many more examples of the unauthorized, unconstitutional things that the federal government is involved in. For now though, these will suffice. If all of these unconstitutional activities were eliminated, federal taxes could be drastically cut. This would enable either the individual citizens, or their state and local governments to be able to afford to perform these functions in a much more efficient manner. Yeah, I know. Proponents of Big Government use the Constitution's "general welfare" clause to justify federal involvement in the above matters. But, if that interpretation of the "general welfare" clause were correct, then the tenth amendment would be rendered completely meaningless.


It seems that I've stirred up a bit of controversy since I wrote the above article. I've received several responses about it on the newsgroups where I advertise. I'll share some of these responses with you.

There were some typical liberal responses, of course. Here's one:

    "Both of you are so conservative you are dusty. . .
    I guess by your opinion we should go back and prevent Hispanics, blacks and women from voting.
    Or, forget about devastated economies and it is okay to wreck the stock markets, banking systems, and investigate presidents with no proof."

This is from someone named Dan. He was responding to a fellow conservative who had also commented on my article. Now, we'll ignore the fact that Dan isn't an English major. I just want to know, what did I say to give him these crazy ideas? If he were to visit the home page of this web site, he would see that some of my favorite conservative writers are folks like Thomas Sowell, Walter E. Williams, Ann Coulter and Linda Chavez. All of these writers are either black, women, and/or Hispanic. They also happen to be brilliant thinkers. And, as for the latter accusation--Look what's been happening to the stock market since the Microsoft judgement. That wasn't brought about by conservatives. But, this is just a typical liberal. The facts aren't on his side, so he resorts to hurling insults.

Another liberal responded as well. This person though, actually tried to use the Constitution to prove his point.

    "Please see Article I, Section 8:

    SECTION 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    ... 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.

    and the 16th Amendment:

    AMENDMENT XVI The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

    "General Welfare" and the power to levy income taxes pretty much covers everything you complain about in your article (education, medicare, art endowments)

    The Constitution was also written in rather broad language to prevent precisely the kind of general nitpicking evidenced on your web site.

    Also worth noting is that the Constitution and Amendments also serve to limit the power of *State* governments."

Yeah, this "General Welfare" clause is a bit problematic. It is the clause that most liberals fall back on to justify big government. But, let's put this in context. If the "General Welfare" clause really justified everything that the Federal government now does, then the Tenth Amendment would be rendered completely meaningless.

The writer then cites the Sixteenth Amendment as further justification. There are two problems with that. First, the Sixteenth Amendment itself is controversial. Second, where does the Sixteenth Amendment say anything about how the government is to spend that money?

Then, skip down to his argument about how the Constitution was written in "rather broad language" in order to prevent "nitpicking". This is tantamount to the "living, evolving Constitution" argument that prominent liberals now use. In other words, anything is justified, if only we say the the Constitution is a "living" document. But, if the Constitution can be used in this manner, then why have it at all? Listen to the words of Thomas Jefferson:

    "Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson to Wilson Nicholas, 1803.

Besides all of this, how can any thinking person really justify the Gargantuan Federal government that we now have? Just look at how inefficient these programs are. The high taxes Americans have to pay to support these programs have sapped a lot of strength from the national economy. Welfare programs have increased poverty, because people have less incentive to work. Unwed motherhood has gone up because the welfare system has encouraged it. And, there are always strings attached. With every new big Federal program, some liberty is lost. The Founding Fathers had good reason to pen the Tenth Amendment.

Some quotes on the matter:

  • "With respect to the two words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."
    --James Madison, speaking of the "General Welfare" clause in the U.S. Constitution (Article 1, Section 8)
  • "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."
    --Thomas Jefferson
  • "How many votes do you think a James Madison-type senatorial candidate would get if his campaign theme was something like this: 'Elect me to office. I will protect and defend the U.S. Constitution. Because there's no constitutional authority for Congress spending on the objects of benevolence, don't expect for me to vote for prescription drugs for the elderly, handouts to farmers and food stamps for the poor. Instead, I'll fight these and other unconstitutional congressional expenditures'? I'll tell you how many votes he'll get: It will be Williams' vote, and that's it."
    --Professor Walter E. Williams
  • "I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition." --Thomas Jefferson: National Bank Opinion, 1791.
  • "I cannot undertake to lay my finger on the article of the Constitution which grants a right to Congress of expending, on the objects of benevolence, the money of their constituents."
    James Madison
  • "All laws which are repugnant to the Constitution are null and void."
    Marbury vs. Madison
  • "The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first."
    Thomas Jefferson
  • "I think we have more machinery of government than is necessary, too many parasites living on the labor of the industrious."
    Thomas Jefferson
  • "Giving money and power to the government is like giving car keys and whiskey to teenage boys."
    P. J. O'Rourke
  • "The Constitution and the Bill of Rights limit the government, not the people. But liberalism limits the people, favors government, grows and expands it."
    --Rush Limbaugh
  • "In every event, I would rather construe so narrowly as to oblige the nation to amend, and thus declare what powers they would agree to yield, than too broadly, and indeed, so broadly as to enable the executive and the Senate to do things which the Constitution forbids."
    --Thomas Jefferson: The Anas, 1793
  • "The construction applied... to those parts of the Constitution of the United States which delegate to Congress a power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof," goes to the destruction of all limits prescribed to [the General Government's] power by the Constitution... Words meant by the instrument to be subsidiary only to the execution of limited powers ought not to be construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument."
    --Thomas Jefferson: Draft Kentucky Resolutions, 1798
  • "Our Founding Fathers constructed our Constitution in such a way that emphasized trust in one another and distrust in the government -- a rather radical concept today. The desired outcome of such a construct would be that the citizens would protect themselves and one another by not allowing government to gain more power than it was due. The citizens would keep watch over their government and elected leaders to ensure that government remained limited and that would ensure the protection of their rights and liberties. Slowly but surely over the past few decades, we have seen the mindset of the American people change. The traditional American view of hard work and self-sufficiency has been replaced by the so-called 'welfare mentality' where it becomes the job and responsibility of government to correct the problems of citizens rather than citizens taking that responsibility themselves. That mentality, in effect, gave the government license to expand its power and authority to do what it wished. The people 'needed' it to solve their problems."
    Lisa S. Dean

  • Adv.--Setting the World Ablaze : Washington, Adams, Jefferson and the American Revolution
    Setting the World Ablaze is the story of the three men who, perhaps more than any others, helped bring the United States into being: George Washington, John Adams, and Thomas Jefferson. Weaving their three life stories into one narrative, John E. Ferling delivers a genuine and intimate illustration of them and, in doing so, gives us a new understanding of the passion and uncertainty of the struggle to form a new nation.

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