The Reactionary Utopian

February 2, 2006

PENUMBRAS, EMANATIONS, AND STUFF

by Joe Sobran

You could easily get the impression that the U.S. Supreme Court has banned public displays of the Tenth Amendment. Actually, this hasn’t happened, at least not yet. Anyway, adults can still read it in the privacy of their own homes, if they can lay hands on a copy. And in the age of the Internet, it would be hard to suppress completely.

But a conspiracy of silence, if observed by enough people, can be as effective as an outright ban. And since at least the days of Franklin D. Roosevelt, that lump of foul deformity, most employees of the Federal Government have tacitly agreed to avoid all mention of the Tenth, which encapsulates the meaning of the U.S. Constitution.

The silence was broken in 1996 by Bob Dole, who, in a desperate attempt to salvage his losing presidential campaign, said he always carried a copy of the Tenth in his wallet. Not that anyone would have been led to suspect this from his long voting record.

The Tenth is often referred to as “the states’ rights amendment,” but that’s not quite accurate. It speaks of powers, not rights. It says that the powers that haven’t been “delegated” to the Federal Government in the Constitution are reserved to the individual states and the people.

This was an attempt to make the Constitution foolproof. Nice try! At the time, it may have seemed that nobody, not even a politician or a lawyer, could miss the point: The Federal Government could exercise only those powers listed in the Constitution. Whatever wasn’t authorized was forbidden. The basic list was found in Article I, Section 8. It was pretty specific: coining (not printing) money, punishing counterfeiters, declaring war, and so forth.

In principle, simple. Unfortunately, however, it runs up against the politician’s eternal credo: “In principle, I’m a man of principle. But in practice, I’m a practical man.”

So the politicians, all practical men, began their endless but fruitful search for powers other than those listed—“implied” powers that weren’t spelled out in the text, but were “necessary and proper” for the execution of the explicitly enumerated powers. The very practical Alexander Hamilton argued that a national bank was necessary and proper in this sense; but Thomas Jefferson hotly denied it, and soon the two men were wrangling over what “necessary and proper” meant, reaching an impasse over the word “and.”

Among the most creative interpreters of the Constitution was Abraham Lincoln, who found he needed all the implied powers he could get his hands on in order to prevent peaceful secession by the exercise of violence. As Professor Harry V. Jaffa approvingly puts it, Lincoln soon “discovered” a huge “reservoir of constitutional power” that suited his purpose. Nobody had discovered this “reservoir” before. Later such reservoirs would also be called “penumbras, formed by emanations.”

But the richest cache of penumbras and emanations was later found in Congress’s power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Especially since the New Deal, the part about “the several states” has gotten quite a workout. It is now interpreted to mean that the Federal Government can “regulate” just about everything we do, from sea to shining sea. This makes the rest of the Constitution pretty much superfluous.

Where does this leave the Tenth Amendment? Oh, that. The Supreme Court has held that it’s just “declaratory,” a mere “truism,” a trivially true acknowledgment that the states retain any powers they haven’t actually “surrendered” (the Court carefully avoided the fraught word “delegated”).

To call all this “legislating from the bench” is an almost imbecilic understatement. It inverts the plain meaning of the Constitution, making it mean the opposite of what it actually says. It’s nothing less than revolution by means of “interpretation.”

If the power to “regulate commerce ... among the several states” had been as broad as the courts now say, Congress could have abolished slavery, imposed (and repealed) Prohibition, and given women the vote by mere statute, without all the bother of amending the Constitution twice.

Notice that the Tenth Amendment is one of the few passages in the Constitution in which the Federal judiciary hasn’t discovered reservoirs of penumbras and emanations. I wonder why.