Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, August 9, 1995 TAG: 9508090046
SECTION: EDITORIAL PAGE: A-10 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
In matters ranging from gun control to voter registration, they invoke the 10th Amendment - the one that says "t]he 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" - as a basis for attacking the validity of a number of federal laws.
In doing so, they discount other parts of the Constitution, ignore the nature of the modern economy and invite judicial meddling in legislative affairs.
"The 10th Amendment," Allen has said, "was not repealed at Appomattox." Well, sure. But the 10th was considerably eviscerated by events that arose out of the Civil War, including the postwar 13th, 14th and 15th amendments that - trumping the 10th - set new rules for states to follow in the treatment of citizens. Those rules are mandatory, and enforceable by Congress.
In the middle decades of the 20th century, the cry of states' rights was used in the South, including Virginia, to defend segregation and racial discrimination. That defense was made as if the Reconstruction amendments didn't exist. But they did, and do.
Though unlike the states' rights segregationists in other ways, today's defenders of states' rights similarly tend to discount provisions of the Constitution that are inconvenient to their purposes. In their concentration on the 10th Amendment, they go light on the powers that are delegated to the federal government.
For example, the easing of voter-registration requirements for federal elections (the motor-voter law) was done under the power granted Congress, in Section 4 of Article I of the Constitution, to override state regulations regarding "[t]he Times, Places and Manner" of holding congressional elections.
More frequent authorities for federal action are constitutional empowerments to Congress to "provide for the ... general Welfare of the United States" and to "regulate Commerce ... among the several States." Those broad grants of authority have grown only broader as America has developed into a modern post-industrial nation with precious little economic activity that can't be defined as interstate. All this is in keeping with the intent of James Madison and the other Constitution-makers, who sought to transform the fledgling United States from a weak confederation into a strong union.
And the implications for the interstate-commerce clause have long been recognized by the courts. Even in a recent 5-4 case overturning a federal ban on firearms near schools on 10th Amendment grounds, only three justices indicated much enthusiasm for shattering precedent and substituting their judgment for that of the elected Congress. In a concurring opinion, two in the majority suggested that they were only setting an outer limit to the broad reach of the interstate-commerce clause.
As a practical matter, it's worthwhile to give the states more leeway in experimenting with different approaches to social, economic and environmental problems, to let them serve as the laboratories that Louis Brandeis described. A lot more authority, now clutched by the feds, should devolve to state and local governments.
That's a matter, however, of policy wisdom, not state sovereignty. Let's not taint federalism, or carry it to radical extremes, with a camouflage of constitutional pseudoprinciple.
by CNB