Constitutional Myth #7: The 10th Amendment Protects 'States' Rights'

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Today's "Tenthers" seem to be yearning for the good old Articles of Confederation, not this newfangled left-wing Madison thing

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Not long before he was sworn in as a new member of the Senate, Tea Party favorite Mike Lee gave a speech in Draper, Utah, about the horrors of federal legislation in the Progressive Era.

Congress decided it wanted to prohibit [child labor], so it passed a law--no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 calledHammer v. Dagenhart.In that case, the Supreme Court acknowledged something very interesting -- that, as reprehensible as child labor is, and as much as it ought to be abandoned -- that's something that has to be done by state legislators, not by Members of Congress. [...]

This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh. Not because we like harshness for the sake of harshness, but because we like a clean division of power, so that everybody understands whose job it is to regulate what.

Now, we got rid of child labor, notwithstanding this case. So the entire world did not implode as a result of that ruling.

Lee did not mention a couple of things. The first is that the law did not say "no more child labor." What the Keating-Owen Child Labor Act of 1916 said was in fact very respectful of the Constitution's grant to the Congress of the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." It forbade businesses to "ship or deliver for shipment in interstate or foreign commerce, any article or commodity" produced with child labor. And the Keating-Owen Act was not the product of a spoiled Congress whimsically banning child labor; it was the culmination of decades of sustained, informed national demand by the people -- sovereigns in our system -- that American commerce be cleansed of this barbaric relic of the past.

The best way to read the Tenth Amendment we actually have is that its words mean what they say, and not what they don't say. The Constitution grants Congress all the implied powers "necessary and proper" to using its enumerated powers.

Second, the only reason "we got rid of child labor, notwithstanding this case," was that the Supreme Court in 1938 -- after two needless decades of what Justice Holmes correctly called "ruined lives" -- overruled Hammer v. Dagenhart and held that the federal government can forbid child labor as part of its power over commerce. Had it not done so, it's pretty clear that children in (you fill in the state) would be suffocating in mines today.

The third thing Lee did not mention is that nothing in the Constitution anywhere says that regulation of shipment of child-produced goods in interstate commerce "has to be done by state legislators, not by Members of Congress." In fact, he cannot point to anything in the text of the Constitution that was "was designed to be a little bit harsh."

The harshness is in his head.

Lee is a "Tenther," part of a new extremist movement that seeks to brand all major federal legislation -- not only labor regulation, but environmental laws, gun control laws, and Social Security and Medicare -- as violations of the "rights" of states as supposedly spelled out in the Tenth Amendment. Senator Jim DeMint last year phrased it this way: "the Tenth Amendment says powers not explicitly given to the federal government in the Constitution go to the states or to the people."

Is he right? Let's look at the text, which reads, in its entirety:

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.

Notice that DeMint, like a lot of "Tenthers," managed to sneak a word in that the Framers didn't write.

The word is "explicitly." Nothing in the Tenth Amendment says that powers -- such as power to regulate child labor as part of commerce, for example -- must be explicitly or expressly given to the federal government. Compare the language of the Articles of Confederation:

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.

When the First Congress adapted this repealed provision as an amendment to the new Constitution, a few important words didn't make the cut. The Articles were familiar to every member of the First Congress. It seems hard to believe that they meant to copy the language but accidentally left some of it out. 

What does the omission of the word "expressly" suggest? 

Since the Amendment was adopted, constitutional thinkers have concluded that the express powers delegated to the federal government by the Constitution necessarily carry with them the "implied" powers needed to carry them out.

If "implied power" sounds like tricky lawyer talk, ask yourself the following question: Is the American flag unconstitutional? The Constitution doesn't make any reference to a national flag. By the "express" argument, states and only states would retain what we might call "the flag power." The U.S. Army would have to march under a congeries of the fifty state flags, depending on the origin of each unit. That would be cumbersome, confusing, and dangerous -- and more to the point, stupid. Congress can "raise and support armies." A country that has an explicit power to raise an army has the implied power to designate a flag. Nobody seriously reads a Constitution any other way.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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