Doug Kendall, at Huffington Post: Taking the Tenth Amendment Seriously.
David Bernstein responds at Volokh Conspiracy: The Tenth Amendment and Sovereignty.
Consistent with my observations about “overselling” the Tenth Amendment, I think Kendall is generally on the right track here. As he says, the Tenth Amendment doesn’t create (or preserve) some sort of abstract “state sovereignty” superior to the original Constitution’s delegations of power to the national government. To the extent tea party adherents or others are arguing that it does, they are surely mistaken. The federalism limitations on the national government come principally from the enumerated powers structure of the original Constitution. The Tenth Amendment confirms that this is the right way to read to the original Constitution; it doesn’t cut back on the enumerated powers, nor say how broad or narrow the enumerated powers are.
Nonetheless, two points. First, I deplore the description of the Tenth Amendment as a “truism” – an aphorism from the (untrustworthy) 1930s Supreme Court that Kendall repeats. It’s not a “truism” at all to say that the national government has only the power granted to it in the Constitution. The Supreme Court has repeatedly reached for “inherent” powers of national sovereignty when it encounters something it thinks the national government should have but can’t find in the Constitution’s text. (United States v. Curtiss-Wright Export Co. is only the most egregious example). The Tenth Amendment, given its proper force, prohibits this move. That’s not a truism; it’s an essential limit on expansive versions of national power.
Second, Professor Bernstein is right that Kendall’s core contention isn’t proven by Kendall's(generally correct) description of the Tenth Amendment. Kendall wants to say that “tea partiers” have an unduly narrow view of national power. Perhaps so, but that doesn’t follow from Kendall’s view of the Tenth Amendment. The question is the scope of the national government’s enumerated powers. The Tenth Amendment makes clear that this is the question, but it doesn’t answer it. The “tea partiers” could well be right that the national government’s enumerated powers, as originally understood, are narrow – or, at least, much narrower than those currently exercised. (I think they are). If so, the Tenth Amendment confirms that the national government is exceeding its original powers, which may be all the “tea partiers” are saying.
Again, the Tenth Amendment is (mostly) a distraction. It’s a mistake for state sovereigntists to lean too heavily on it. But it’s also a mistake for advocates of broad national power like Doug Kendall to lean too heavily on its inconclusiveness. The real battle is over the enumerated powers – just as the Tenth Amendment says it should be.
Posted at 12:30 PM