GOP must be careful with 10th amendment
It is Gov. Rick Perry's main appeal as a presidential candidate that 48 percent of the nation's job creation during the recovery has come in Texas. But his main message to America is not economic but constitutional.
Perry's passion is a rigorous reading of the 10th Amendment — the one insisting that powers not delegated to the federal government are reserved to the states or the people. In 2009, Perry endorsed a resolution of the Texas Legislature claiming “sovereignty under the 10th Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.” It was an act without legal significance but not without political meaning. “We've got a great union,” Perry insisted. “There's absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, who knows what might come of that.”
Perry's argument befits a state that once possessed its own foreign policy and an embassy on the Place Vendôme in Paris. But the approach sets limits on a presidential candidate. The last attempt to campaign on the appeal of the 10th Amendment was made in 1996 by Bob Dole, who carried a well-worn version in his breast pocket. The strategy amounted to unilateral policy disarmament. While Bill Clinton described improvements in education and public safety, Dole talked of procedural limits on federal power. The domestic centerpiece of Dole's campaign was a void, a negation.
Given President Obama's record of federal overreach, the 10th Amendment may have more political appeal this time around. But the problem with a sweeping application of the amendment is not merely political.
Politicians and the media tend to stumble on philosophical debates as though they discovered them — like a college freshman suddenly realizing there is tension between determinism and free will. But fights about the proper role of the federal government were common among the Founders. Thomas Jefferson, who saw a monarchist under every Chippendale bed, thought federal spending should be limited to purposes specifically enumerated in the Constitution — little more than war and the Post Office. James Madison took his side. Alexander Hamilton envisioned a powerful, commercial republic beyond a loose confederation of agricultural states — requiring the federal government to exercise implied powers in promoting the general welfare. “In construing a constitution,” said Hamilton, “it is wise, as far as possible, to pursue a course, which will reconcile essential principles with convenient modifications.”
For the most part, George Washington and Chief Justice John Marshall endorsed Hamilton's more expansive view of federal authority. Even Jefferson and Madison eventually made their own “convenient modifications.” Jefferson — whose theoretical purity often resulted in hypocrisy — managed to make the Louisiana Purchase without amending the Constitution to enumerate this massive exercise of federal power. Madison signed legislation establishing the Second Bank of the United States. The new government, as Hamilton foresaw, would need to act in a “vast variety of particulars, which are susceptible neither of specification nor of definition.”
The Jefferson-Hamilton debate has recurred in American history, often in the context of race. It has not strengthened the Jeffersonian argument that some of its main champions have been John Calhoun and George Wallace. Following the desegregation of schools in 1954, 19 senators and 77 representatives signed a manifesto criticizing Brown v. Board of Education, in part, because the “Constitution does not mention education.” It is possible, of course, for a sound argument to be pressed into the service of a bad cause. But any Southern politician needs to be careful about historical context.
Perry is not really a secessionist — a point he has repeatedly clarified. And it would be appallingly unfair to locate his political ideology within miles of Calhoun or Wallace. On immigration, for example, Perry is the most welcoming Republican of the current lot. But it is worth noting that stricter interpretations of the 10th Amendment, through much of American history, have been associated with the Democratic Party. The Federalist founders expressed their tea party enthusiasm in a manner more favorable to federal authority. Abraham Lincoln combined a ferocious commitment to the Union with an expansive program of internal improvements.
An emphasis on the 10th Amendment is a useful corrective. Federal powers must be at least implied by the Constitution, not merely conjured by the courts. A little Jeffersonianism now and then is a good thing. But it is not identical to Republicanism.
michaelgerson@washpost.com.
© 2011, Washington Post Writers Group