By Tim Dunkin
If there is one thing upon which the stability and order of our society rests, it is the rule of law. Without law, you have no order and you have no boundaries. Instead, you have chaos. You have the “state of nature” envisioned by Locke and other Anglo-Enlightenment political theorist, where each man is a law unto himself, and is at constant war with each other man. Indeed, it was in a commonwealth specifically united by law that Locke thought it best for mankind to live peacefully and prosperously. Cicero anticipated Locke when he asked in his work De Re Publica,
"What, indeed, is a state, if it is not an association of citizens united by law?"
All of this, knowingly or not, rests upon the fundamental truth of God's act of creation, as recounted in Genesis. Creation involved the process of bringing order from chaos, of establishing boundaries for both the physical realm and the creatures whom God made and placed within it. In a sense, God's character as Lawgiver and Judge were indicated from the very beginning in His first recorded act. It is a fundamental principle of human society – as we are made in God's image – that we are to be governed by laws, both from God and made by man, and some of the worst things we see in the Bible occur in places and at times where “every man did that which was right in his own eyes.”
Indeed, the modern day philosophies that together comprise minarchist libertarianism are foreign to both our Judeo-Christian heritage and to the classical republicanism and liberalism that is our Western birthright.
This principle of the rule of law is enshrined in our American system via the constitutionalism that theoretically lies at the heart of our government. Unlike many nations that are ruled by despotic strongmen or socialistic oligarchies, our government is predicated upon the idea that the apparatus of rulership conforms to the Constitution, which superseded the whims of any individual politician or party. Law, not bureaucracy or personal whim, is supposed to be the determiner of what is proper or improper in our political system.
It is a truism among conservatives – and not without reason – that our government is essentially lawless. Not that the government makes no laws – for surely it makes too many as it is – but that this plethora of laws, more often than not, are unconstitutional, and therefore transgress our fundamental law. The Constitution defines the limits of our politics and our legislation – if only the politicians would pay attention!
The transgressions against our foundational law are legion. But out of all of these, perhaps the single most abused and forgotten part of our Constitution is that which can nevertheless be considered the keystone of our system, for it defines the federalism inherent in our system, set up by our Founders – the Tenth Amendment.
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.
Under our system, part of the respect for the rule of law involves a respect for the division of powers between the federal and state governments. Our Founders intended for the states to carry the primary role of governance, as it pertains to the daily lives of the citizenry. The Constitution sets very strict limits on the powers of the federal government, most of those granted are federative in nature – they involve powers which either standardize the interaction of the states together in the union, or govern the foreign affairs of the union with other nations.
Beyond these, however, power rests with the states. The states were intended to be semiautonomous. Indeed, this is why they are called “states” instead of “provinces.” The Founders didn't intend the states to be mere political subdivisions of a centralized national government. The states were to be the center and object of the citizens' primary affections.
But, a funny thing happened on the way to the 20th century. Our federal government, starting with Abraham Lincoln and his decision to treat the Constitution as optional in the face of national emergency, began to upset the balance of power between the state and federal governments. Because of its psychological association with slavery, “states' rights” became a dirty word, and America underwent a rather rapid centralization of power to Washington, DC.
The fruit of this upset in the 20th century was the gradual socialization of our nation, and one of the primary means used by the courts and the federal government to usurp the rights of the states was the expansive application of the Interstate Commerce Clause. Misuse of this clause became, and continues to be, rampant. Originally intended to serve as a federative regulation of legal questions involving commerce between individual states or between states and foreign powers, this clause has been construed to encompass pretty much anything and everything Congress wants to do, regardless of whether it involves “commerce between states,” or even involves commerce period. This clause is twisted to give the federal government a blank check for overrunning any and all state powers. Instead of the states being able to enjoy their constitutional, federal powers to make laws in all areas where they are not specifically forbidden by that document, state laws exist only at the sufferance of a Congress who just hasn't decided to legislate on a particular area yet.
All of this has served both to undermine the respectability of the Constitution as a restraining force on the federal government, and to decrease the amount of actual liberty enjoyed by the citizens of the several states.
When the federal government can simply and blatantly misuse one piece of the Constitution to undermine a fundamental principle enshrined in the Bill of Rights, what does the Constitution become, other than a tattered piece of waste paper? The Founders would surely disapprove of the way the Commerce Clause has become an excuse (and a poor one at that, I don't care what the Supreme Court says on the matter) to grant practically unlimited expansion to the federal powers. The end result is what we see in Congress and the Executive today – a complete disregard for both the spirit and letter of the Constitution. Why does our government act like the Constitution doesn't even exist when it wants to enact things like the Fairness Doctrine, gun control laws, the property forfeiture laws associated with the “War on Drugs” that don't even require a conviction, and the like? It's because the restraint on federal power represented by the Tenth Amendment is non-existent these days.
Likewise, the liberty of the citizen suffers because of this destruction of true federalism. One of the virtues of a politically decentralized system is that if one part of the group goes rogue, its citizens can always escape and go to another. Unfortunately, if bad laws in every area of life are applied from the top down by a rogue federal government, then it doesn't matter which state you live in, unless you want to move overseas (to what will probably be an even less free foreign country), you're stuck with it. When one cannot escape oppression because it is equally prevalent everywhere, then one's liberty is assaulted.
Conservatives in this country are terribly concerned about our lost liberty, and rightly so. We face a usurping federal government that is fast on its way to becoming Leviathan in fact, as well as name. So what can we do? Well, we can get serious about states' rights. We can toss aside all of the Civil War- and Civil Rights-era propaganda hogwash about states' rights being instruments of oppression. Reclaim states' rights as a good and noble expression of the principle of liberty through weakened central government. In short – we need to reassert the Tenth Amendment.
More properly, our states need to reassert the Tenth Amendment. I, for one, hold to a very low view of judicial precedent. If judicial precedent conflicts with the plain, common sense reading of the Constitution, then judicial review needs to find its way into the garbage can. There surely is a mountain of precedence from the courts in favor of the grossly expansive application of the Commerce Clause into every nook and cranny of governmental competency. So what? Let the states start demanding their rights again, let them start ignoring unconstitutional rulings from the courts, all the way up to the Supreme Court. What? You think court rulings are automatically “constitutional?” That sort of attitude needs to go by the wayside. Our states need to wean themselves off the various gimmicks the federal government uses to induce compliance with unconstitutional imbalance of power, like funding for highways or education.
Happily, there are incipient signs that just this sort of thing might be happening. We saw the principled stand of a few Republican governors who rejected unconstitutional “stimulus” money from Obama's swagbag. More importantly are the bills before statehouses in nearly 25 states which, to some degree or another, demand a restoration of states' rights under the Tenth Amendment. Conservatives need to contact their state representatives and find out if such a bill is before the legislature. If one is, then ask them to support it. If one isn't, then ask them to craft one and submit it.
We need to get serious about this. Our constitutional crisis is at a critical juncture. It may be just the time to see if Obama and the Democrats would have the nerve to try to militarily coerce, say, Texas or Wyoming or South Carolina into acceding to some unconstitutional application of the Commerce Clause or some federal gun control law which the states refuse to enforce on constitutional grounds. Given the disdain that the military has for Obama, it's highly unlikely that they would gun down or arrest fellow American citizens, especially when those citizens are upholding the very Constitution that our soldiers themselves are sworn to protect and defend.
Ultimately, states' rights and a reassertion of the proper division of powers as stipulated by the Tenth Amendment aren't just about letting states make their own laws on any number of issues – they're about restoring liberty and the true rule of law. If we want our federal government to really respect its constitutional boundaries, then it needs to respect this keystone. The Tenth Amendment exists so that we ultimately won't have to use the Second. If we really want our Constitution and our free system of government restored, then we need to start by rebuilding on the keystone.