In the weeks (months, years…) ahead, we’ll hear constitutional experts—real or self-anointed—blather on about all this, so I—a person who is definitely not a constitutional expert—thought I may as well jump in now and make my views clear: I think they’re crazy.
The Tenth Amendment to the US Constitution says:
"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 argument actually is over whether this Amendment really means “powers not expressly delegated”. The word “expressly” was in the Articles of Confederation, the first constitution of the new United States, but that word was deliberately omitted from the Constitution that replaced it. In United States v. Darby (1941), Justice Stone, writing the opinion of the Supreme Court, said:
"The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers."Generally speaking, the commerce power granted by the Constitution under Article I has been seen as a justification for the federal government exercising power over states. Since this argument is over the healthcare reform bill, it’s worth noting that health insurance companies are absolutely engaged in interstate commerce, and the federal government has a clearly established authority to regulate insurance.
Article I also states in Section 8 that “Congress shall have the power… to provide for the… general welfare of the United States.” Congress has already done this on numerous issues, this bill being only the latest example.
Further in Section 8 of Article I, the Constitution says that Congress has the power “To make all laws which shall be necessary and proper for carrying into execution the forgoing powers, and all other powers vested by this Constitution in the government of the United States…” The “necessary and proper clause” has served as the basis for much of the expansion of federal authority over the 221 years that the Constitution has been in effect.
What all of this points to is the existence of “implied powers”, that is, powers not specifically enumerated in the Constitution but which are implied by it. Those powers are vast and touch the lives of every American citizen. The evidence clearly shows that this is what the authors of the Constitution intended—not a weak confederation, like the one they’d just replaced, but rather a strong federal union, one in which states would have sovereignty over purely state matters, and the federal government had authority over all national affairs and matters between and among the states.
In sum, then, the “Tenthers” don’t have a Constitutional leg to stand on. There’s nothing in the Constitution that gives them the power to “nullify” any federal law, let alone the healthcare reform bill, and the Supreme Court will almost certainly strike down any such attempt at “nullification”.
Personally, I think the “Tenthers” know that perfectly well. Many are probably pushing this as part of a quixotic “state’s rights” crusade. It should be pointed out to them that the Supreme Court has already ruled in Texas v White (1869) that States have no right to secede from the Union.
I think there are other motives, too. First among them, the racism of the far right: They despise President Obama precisely because he’s the first African American president. They have all sorts of conspiracy theories to try and cover their racism, but it’s there nonetheless. Also, many believe that the only legitimate government is rule by far-right Republicans, christianist Republicans in particular. Because they believe that they alone should rule the country, if democracy delivers a different government, they automatically see it as illegitimate.
The inherent racism among many (probably most) “Tenthers” has been well-documented elsewhere. The proof of their belief that they alone are legitimate rulers comes from a simple observation: When the Bush/Cheney regime was engaged in clearly illegal and unconstitutional behaviour, these people were silent—no talk of “nullification” back during the most serious presidential assault on the US Constitution.
So, either the “Tenthers” are crazy, or they think we’re stupid. But if I was to bet on who’s the least intelligent in this fight, it wouldn’t be ordinary Americans. The “Tenthers” ought to be called that because they have a tenth the intelligence of ordinary Americans. I’ve seen nothing so far to make me think otherwise.