Pleading the Tenth

Nothing says "states' rights" like a roomful of Republican governors. And it was before just such a crowd — the Republican Governors Association, gathered near Austin before Thanksgiving — that Gov. Rick Perry laid out the central thesis of his Constitutional philosophy.

"We're big believers in the First Amendment, Second Amendment — we like all those," he said matter-of-factly, building up to the kicker: "The Tenth Amendment means something."

The final amendment in the U.S. Bill of Rights provides state leaders their best avenue around federal policies they don't agree with. That is, if the Tenth Amendment actually does mean something. Not all Constitution enthusiasts are as convinced as Perry that that's the case.

A politician wielding the Tenth Amendment, like an officer flashing a badge, can be interpreted as a clear signal that serious action might be taken if certain protocol isn't followed. The Tenth Amendment Center, an advocacy and research organization, encourages states to pass resolutions declaring state sovereignty — an act it compares to a landlord serving notice to a bad tenant before kicking them out. "Follow-up, of course, is a must," says their website.

Looking ahead to the RGA conference, Perry wrote an op-ed for the Austin American-Statesman explaining why the "states' rights" amendment has been increasingly drawing his attention. "As Washington continues to make centralized decisions, bails out and takes over private businesses, buries states in one-size-fits-all mandates and spends like there is no tomorrow," he wrote, "our nation seems to be heading down a path toward socialism."

In the 2009 legislative session, Texas politicians joined the pushback against the feds in the form of Rep. Brandon Creighton's House Concurrent Resolution 50, which claimed "sovereignty" under the Tenth Amendment, signaling their desire to go rogue should they deem it necessary.

The Conroe Republican's resolution easily passed the House after it was amended by Democrats to include more union-friendly language, but was never considered by the Senate.

Backing the legislation, Perry expressed his "unwavering support for efforts... to reaffirm the states' rights" believing that such efforts will "free our state from undue regulations, and ultimately strengthen our Union."

This suspicion of creeping "undue regulations" has spurred increasingly vocal protests from prominent Texans, particularly on the political right. U.S. Rep. Ron Paul, R-Surfside, who wrote in a New York Times blog that, if he were in charge, he'd "look to phase out entire departments and return these functions to the states — as the Constitution intended." U.S. Sen. Kay Bailey Hutchison, R-Dallas, is an original cosponsor of the "Enumerated Powers Act" — a Republican-led effort in the U.S. Congress (introduced in January 2009) that seeks to highlight the importance of the Tenth Amendment. In a May conversation with HCR 50 co-author state Rep. Leo Berman, R-Tyler, Fox News host Glenn Beck described such legislation as the beginning of what he likes to call "the 'civilest' war."

Even ignoring the governor's now nationally famous April implication that Texas could secede if it wanted to, Perry and others have certainly taken to heart the message that "each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

Of course, that's not in the Bill of Rights. Those words — words like "sovereignty"— come from Article II of the Articles of Confederation, the working draft of what became the U.S. Constitution, of which such language was ultimately left out.

Instead, the framers went with: "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."

That's where some of the sure-footedness of this adherence to the Tenth Amendment may falter a bit.

In 1941, in its United States v. Darby decision, the U.S. Supreme Court famously described the language as, "but a truism," neither adding nor subtracting from the power of the U.S. Government.

"The best interpretation of the 1787 original meaning of the 10th Amendment is that it pure political theater signifying nothing," says Calvin Johnson, a professor at the University of Texas School of Law and author of Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution.

The argument goes something like this: with the language saying that the government only retains the powers "expressly delegated" to it intentionally omitted (a major sticking point in the document's drafting), the implication is that the federal government can claim whatever powers it needs under the scope of the "general welfare" and the "common defense" as laid out in the Constitution.

"More generally," says Johnson, "the Constitution in the Founder's meaning is a angry anti-state weapon, intended to end the sovereignty of the state and eviscerate their power." The level of sovereignty granted by Article II had made the tax collection necessary to repay war debts nearly impossible. The Constitution was designed to provide a little course correction. "The problem of 1787 was trying to get states to pay their taxes for the war" says Johnson, "and the Constitution of 1787 was a weapon to accomplish national revenue to pay the war debts."  

States didn't come away with nothing though.

"The only states' right mentioned in the Constitution is the power of a state to veto Congress's taking away territory," Johnson says, "and that has been honored mostly in the breach."

Johnson recognizes that "there is a long tradition celebrating state sovereignty, especially in the South," but says, "It is just that the closer one comes to the Founders' Constitution in its 1787 text and meaning, the less there is to it."

Textually-based or otherwise, Perry, for one, will be continuing in that long tradition extending back to Thomas Jefferson's Revolution of 1800. A spokeswoman, Catherine Frazier, says, "From his first efforts to reiterate the 10th Amendment by supporting HCR 50 in the Texas Legislature, to his continued involvement in the TEA Party movement, Gov. Perry will continue to be a voice in the effort to ensure the federal government operates within the boundaries intended by our founding fathers as illustrated by our nation's constitution."