- Posted December 12, 2011 by
This iReport is part of an assignment:
GOP presidential primary: Who's your pick?
The 10th Amendment and the GOP Presidential Race
The Tenth Amendment to the US Constitution:
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.
Since the Republican presidential race began, there has been a lot of reference to the 10th Amendment by the GOP candidates. But what does it exactly mean?
The issue deals with what are rights and powers that belong to the states and to the people and which rights and powers are provided to the federal government. The issue is one that goes back to even before the Constitution was ratified. It was an issue that was included even in The Articles of Confederation which was the formative basis for set up of the new nation of The United States of America.
A series of articles, prior to the adoption of the Bill of Rights, which the 10th Amendment is a part, were written by Alexander Hamilton (first Secretary of the Treasury), James Madison (father of the Constitution and 4th President of the US) and John Jay (first Chief Justice of the Supreme Court) known today as The Federalist Papers which advocated passage of not only the Bill of Rights, but the 10th Amendment in particular.
These early founding fathers saw strong state governments with a limited federal or central government. The idea was to keep the federal government from over-reaching and encroaching on powers and rights belonging to the states and the people.
Republican candidates are using a strong advocacy of the 10th Amendment during this primary and caucus season as the basis for claims against the Administration of President Barack Obama and the US Congress of having gone beyond the scope of the powers invested in the federal government and interfering in issues which should rightly be under the authority of the states and local government to administer and decide.
The federal government has time and time again used the "Necessary and Proper" clause to expand federal authority.
The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer there of. Article One of the United States Constitution, section 8, clause 18
The candidates and states with both Democrat and Republican administrations have fought for years the use by the federal government of the "Commerce Clause". Usually the US Supreme Court has come down on the side of the federal government and against the states.
The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
The "Supremacy Claus" is also a common basis used by the federal government to over-ride state laws.
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state. However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the Supremacy Clause itself.
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Seeing an opening to attack the current Administration by tapping in to recent grassroots anger and frustration seen with both the Tea Party and the Occupy Wall Street movement, candidates have latched onto and pushed for strict adherence to the 10th Amendment.
The 10th Amendment claims and pushes are nothing new in the history of the US of A. Southern states laid claim as part of the basis for what was deemed their right under the 10th Amendment to secede and to oppose what the states saw at that time as an encroachment of states rights by the federal government and the northern states.
Long before that a landmark case in the nation's early history, McCulloch v. Maryland, 17 U.S. 316 (1819), the Supreme Court found that a state could not tax a federal institution, The Second Bank of the United States. The battlelines had been drawn in the issue of states rights versus the federal government.
The ongoing battle between the states and the federal government has gained prominence with GOP candidats as they see a way to both defeat Obama in 2012 and to fight against the Affordable Care Act, the President's signature domestic legislation.
Expect to hear the 10th Amendment come up more and more over the coming months.
From the Cornfield, I am concerned with the creep of federal power and the apparent hamstringing of state and local governments.
For more information: