by Brion McClanahan
Cross Posted from Tenth Amendment Center
A Response to Ian Millhiser’s Diatribe on “Tentherism.”
If you read a recent piece entitled “Doomed to Repeat History” by policy analyst Ian Millhiser at the progressive think tank Center for American Progress the answer would be countless. His inaccuracies, partisan propaganda, scare tactics, and mistruths scream for a response. Of course, the statist zombies who sop up progressive talking points will probably view Millhiser’s work as the trump card against “tentherism,” but that is the principal problem. Millhiser has no idea what he is talking about (surprise!). He does not understand the objectives of the Tenth Amendment movement and his definition of “tentherism” is hardly accurate. Perhaps he doesn’t care, since demonizing those who support liberty and limited central government is what progressives do best, but Millhiser obviously needs an elementary lesson on the Tenth Amendment and American history in general.
Millhiser begins his piece by stating that “conservatives are over-reading the Tenth Amendment.” This must not be allowed to happen, he contends, because “Tentherism is dangerous,” “Tentherism has no basis in constitutional text or history,” and “Tentherism is authoritarian.” The first charge smacks of a statement Duke Law School professor Neil Siegel made in March when he called nullification “lawlessness.” From the evidence, it appears Duke Law School graduates and professors (Millhiser received his J.D. from Duke) are well versed in statist propaganda but don’t have a clue about the ratification of the Constitution or the original intent of the Tenth Amendment. The first and third can be refuted in tandem, but the second is where Millhiser ignores much of early American history and cherry picks individuals and events to fit his “tentherism” paradigm.
When the Constitution was sent to the thirteen “FREE AND INDEPENDENT STATES” – as Thomas Jefferson called them in the Declaration of Independence – for ratification, it faced an uphill battle in the three most powerful States at the time, New York, Massachusetts, and Virginia. Early odds had it failing in all three. A handful of opponents in each State ended up switching their votes in favor of ratification because they were guaranteed a bill of rights would be added to the Constitution. Each of these States submitted a list of recommended amendments, and at the top of each list stood a State sovereignty amendment. Massachusetts’ proposed first amendment read: “That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.” Virginia’s proposed first amendment stated: “That each state in the Union shall respectfully retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.” And New York’s proposed fifth amendment demanded that “no power shall be exercised by Congress, but such as is expressly given by this Constitution; and all others, not expressly given, shall be reserved to the respective states, to be by them exercised.” Maryland and South Carolina also submitted proposed State sovereignty amendments.
There you have it. Jefferson, a Founding Father, called the States “free and independent” in America’s first State’s rights document, and five States submitted a State sovereignty amendment as a condition of ratification. The delegates were persuaded to refrain from stating amendments were a “pre-condition,” but that was the point. These ultimately became the Tenth Amendment to the Constitution. And don’t forget that North Carolina and Rhode Island did not ratify the Constitution until 1789 and 1790 respectively, thus making them independent countries for a time. That is the best expression of “tentherism.” But the Tenth Amendment tradition goes further, and it includes other members of the founding generation, many of whom were ardent Federalists.
Founding Fathers Jefferson and James Madison laid the groundwork for the Tenth Amendment movement in 1798 by authoring the Virginia and Kentucky Resolves. Madison argued in the Virginia Resolves that “the powers of the general government” result “from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact,” and are “no further valid than they are authorized by the grants enumerated in that compact….” As such, the States have the authority, under the Tenth Amendment, to “interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.” Interposition is another word for nullification, and it is based on the Tenth Amendment.
Jefferson was more direct in the Kentucky Resolves. He simply stated that the States “delegated to [the federal] government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force….” How did he come to this conclusion? It was “expressly declared by one of the amendments to the Constitution…” i.e., the Tenth Amendment. Jefferson and Madison probably knew something about American constitutional government. Of course, Millhiser illustrates Madison’s inconsistency, a trait that marked his career, but Jefferson never backed down from this position.
And it wasn’t just Jefferson and Madison who advanced the Tenth Amendment in the founding generation. Northerners used it to support their agenda against the federal government as well. Several members of the famous secessionist group called the Essex Junto and the later Hartford Convention that met during the waning months of the War of 1812 were from the founding generation. For example, George Cabot served as a delegate to the Massachusetts ratifying convention of 1788; Nathan Dane was a member of the Continental Congress; James Hillhouse served in the American War for Independence and in the United States Senate; Daniel Lyman served at the Battle of White Plains with George Washington; Samuel Ward served in the War for Independence and attended the Annapolis Convention of 1786 that sent in motion the Constitutional Convention; Timothy Pickering was United States Secretary of State and a patriot leader during the War; Fisher Ames was a member of the Massachusetts ratifying convention and served in the United States Congress; Francis Dana signed the Articles of Confederation, served in the Continental Congress and United States Congress and supported the Constitution at the Massachusetts ratifying convention; and Theophilus Parson wrote the set of proposed amendments at the Massachusetts ratifying convention in 1788 that persuaded a few opponents to support the Constitution. As with Jefferson and Madison, these men knew something about the Constitution and the Tenth Amendment, and all were Federalists!
In fact, in 1815, the Hartford Convention said the following in their report and resolutions:
That acts of Congress in violation of the Constitution are absolutely void, is an undeniable position. It does not, however, consist with the respect and forbearance due from a confederate State towards the General Government, to fly to open resistance upon every infraction of the Constitution. The mode and the energy of the opposition should always conform to the nature of the violation, the intention of its authors, the extent of the injury inflicted, the determination manifested to persist in it, and the danger of delay. But in cases of deliberate, dangerous, and palpable infractions of the Constitution, affecting the sovereignty of a State, and liberties of the people; it is not only the right but the duty of such a State to interpose its authority for their protection, in the manner best calculated to secure that end [emphasis added].
These Federalists nullified federal laws in support of the War! So, either Millhiser is ignorant of this history when he writes “Tentherism has no basis in constitutional text or history,” or he purposely ignores it. It’s probably the former. Either way, contrary to Millhiser’s claims, the Tenth Amendment was firmly entrenched in the history of the founding period and it is entirely based on the text of the Constitution. Maybe Millhiser forgets that the Tenth Amendments is part of the Constitution, and to the States who proposed it, the Amendment limited the power of the federal government to delegated items or those listed in Article 1, Section 8 of the Constitution.
Millhiser charges that regardless of how narrowly modern “tenthers” view the Constitution, members of the founding generation, including Washington, Alexander Hamilton, and John Marshall, along with the First Congress, thought otherwise. His uses two bills from the founding period as evidence: a 1790 law regulating commerce with the American Indian tribes and the incorporation of the First Bank of the United States in 1791. He takes the first out of context and murders the history of the second.
Millhiser contends that “Washington’s decision to sign the [1790 Act to Regulate Trade and Intercourse with the Indian Tribes] demonstrates his expansive view of the commerce power – a view that in no way resembles tentherism.” He argues that the act “reached far beyond economic matters…including wholly noneconomic crimes such as assault or murder.” The bill was written in the midst of the Northwest Indian War, and Washington had insisted that Congress attempt to extend the olive branch to the Indian tribes in the hope that war could be eliminated. At the same time, Washington was planning a major military campaign against the tribes if hostilities continued. They did until 1795.
Most of the 1790 act was designed to regulate trade but the portion of the bill that Millhiser outlines was designed to regulate the “Intercourse” with the tribes and had nothing to do with commerce or the “commerce clause” of the Constitution. As the title suggests, it was a piece of legislation that accomplished two tasks, regulating “Trade and Intercourse.” In the eighteenth century the word intercourse meant social dealings, so Washington’s signature did not imply that he agreed with an “expansive view of the commerce power.” It simply meant he didn’t want Americans stirring hostilities through their “intercourse” with Indians while in Indian territory. Here is the text of that portion of the bill:
That if any citizen or inhabitant of the United States, or of either of the territorial districts of the United States, shall go into any town, settlement or territory belonging to any nation or tribe of Indians, and shall there commit any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians, which, if committed within the jurisdiction of any state, or within the jurisdiction of either of the said districts, against a citizen or white inhabitant thereof, would be punishable by the laws of such state or district, such offender or offenders shall be subject to the same punishment, and shall be proceeded against in the same manner as if the offence had been committed within the jurisdiction of the state or district to which he or they may belong, against a citizen or white in habitant thereof.
Taking the language of the bill and the historical situation out of context, which Millhiser has done, to satisfy or support an agenda against the attack on national health care is irresponsible to say the least. Dishonest would be a better word, but again, maybe Millhiser is ignorant of the history. That wouldn’t be shocking.
Millhiser’s characterization of the debate over the incorporation of the First Bank of the United States in 1791 also suffers from historical inaccuracies. He contends that Madison opposed the plan because he worried about the “spending powers” of the federal government. Madison never opposed the Bank on those terms. In his words, if the Congress had the power to incorporate a bank, then “They could incorporate companies of manufacturers, or companies for cutting canals, or even religious societies….” This was a power the federal government did not possess. He anticipated that chartering a bank would have to be accomplished through the “general welfare clause” or the “necessary and proper clause” of the Constitution, and he considered both approaches fraudulent.
Madison advanced during both the debate over the Bank and later in his Virginia Resolves that the “general welfare” clause of the Constitution had been “copied from the very limited grant of powers in the former Articles of Confederation.” This was true. In fact, during the Constitutional Convention in 1787, Gouverneur Morris of Pennsylvania attempted to enlarge the power of the central government under the “general welfare” but was blocked by Roger Sherman of Connecticut. The “general welfare clause” of the Constitution carried the same weight as the “general welfare clause” of the Articles of Confederation. In essence, only items listed in Article 1, Section 8 of the Constitution were for the “general welfare” of the Union, and a Bank of the United States was not one of them.
And Madison said in 1791 that the “necessary and proper clause” was “in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and, as it were, technical means of executing those powers. In this sense it has been explained by the friends of the Constitution, and ratified by the State Conventions.” Of course, Millhiser claims that there are “few, if any, substantive limits on Congress’s [SIC] spending power” through the “general welfare clause,” but that wasn’t the main thrust of Madison’s argument; moreover, Millhiser’s characterization of the “general welfare clause” is incorrect according to most members of the founding generation, including the men who placed it in the Constitution.
When Washington received the bill for his signature, he was concerned that Madison considered the bill unconstitutional. He asked Jefferson and his Attorney General Edmund Randolph to submit their opinion on the issue. Jefferson’s rebuke of the Bank centered on the not yet ratified Tenth Amendment to the Constitution. Washington believed Jefferson and concurrently asked Madison to write a veto message and Hamilton to submit an argument in favor of the Bank. He told Hamilton that he would only sign the bill if his arguments dwarfed Jefferson’s. Washington ultimately sided with Hamilton, in part because he bought Hamilton’s “loose construction” arguments, but also because Washington thought the issue more closely affected Hamilton’s department. It must be said that Washington was never staunchly ideological – that is partly why everyone trusted him with the potential powers of the executive branch – so Millhiser’s description of Washington as a firm proponent of “loose construction” stretches the truth.
Regardless, Millhiser’s choice of characters is part of his problem. He picks two of the most ardent centralizers of the founding generation, Marshall and Hamilton, to prove his points. Yet, their comments on federal power during the months leading to ratification of the Constitution more closely resemble “tenther” arguments than Millhiser’s. Hamilton said in 1788 that, “The most powerful obstacle to the members of Congress betraying the interest of their constituents, is the state legislatures themselves…jealous of federal encroachments, and armed with every power to check the first essays of treachery….Thus it appears that the very structure of the confederacy affords the surest preventatives from error, and the most powerful checks to misconduct.” That sounds a lot like state interposition or “tentherism,” doesn’t it? And it was Hamilton who said that the direct democracy Millhiser advocates had historically produced “tyranny” and “deformity.” So much for Hamilton being Millhiser’s “guy.” And Jefferson had this ringing endorsement of Hamilton: “Hamilton honest as a man, but, as a politician, believing in the necessity of either force or corruption to govern men.”
What about Marshall? Marshall made the following statements during the Virginia Ratifying Convention of 1788: “Has the government of the United States the power to make laws on every subject?…Can they go beyond the delegated powers?…If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider a law as coming under their jurisdiction. They would declare it void.” He also thought a federal bill of rights was unnecessary because most States already had a bill of rights. In essence, the States protected their citizens from federal tyranny through the State courts. So, the federal government has “enumerated” and “delegated” powers and to go beyond those powers would violate the Constitution. Of course, Marshall thought those powers were expansive when he legislated from the bench during his time as Chief Justice, but in 1788 he argued a “State’s rights” position. Millhiser left that part out, as do most Marshall supporters. It seems, however, that the Federalists Millhiser uses as “character witnesses” for his cause would not support his progressive agenda, regardless of how he tries to spin the issue.
And to make matters more interesting, perhaps the most ardent nationalist of the founding period, James Wilson of Pennsylvania, had this to say about the enumerated powers of the Constitution during the Pennsylvania ratifying convention of 1787:
They found themselves embarrassed with another, of peculiar delicacy and importance. I mean that of drawing a proper line between the national government and the governments of the several states. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficult, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care. It is only a mathematical science that a line can be described with mathematical precision. But I flatter myself that, upon the strictest investigation, the enumeration will be found to be safe and unexceptionable, and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature [emphasis added].
Later in the convention, Wilson declared that a small number of representatives in the federal government was adequate because “its objects are enumerated, and are not confined, in their causes or operations, to a county, or even to a single state. No one power is of such a nature as to require the minute knowledge of situations and circumstances necessary in state governments possessed of general legislative authority.” To Wilson, enumerated meant limited, so members of the United States Congress had limited power under Article 1, Section 8. Surely, national health care and many other progressive measures require the “minute knowledge of situations and circumstances” in towns, counties, and even States and are not listed as enumerated powers of the federal government. In order to appease opponents of the Constitution, Wilson, a Federalist, rejected in 1787 an “elastic” interpretation of the “commerce clause,” “general welfare clause,” and “necessary and proper clause.” Progressives like Millhiser won’t discuss that.
Millhiser is a lawyer by training and it shows in his arguments against the Tenth Amendment. His piece reads like a legal brief in worthless American case law. He completely mischaracterizes Tenth Amendment supporters when he states, “Tenthers…want to strip the American people of their power to make such decisions and give it to a Supreme Court dominated by conservatives.” Since when? As a principle, the Tenth Amendment movement does not care about the Supreme Court nor does it put its faith in Supreme Court decisions. The Tenth Amendment is about limited, self-government and the ability of the people of the States, those who elected members of the State ratifying conventions, those who elected the members of the State legislatures, and those who would take action under the Tenth Amendment, to check the power of the federal government through state interposition and decentralization, not case law. As Jefferson stated it is the right of “self-government” that directed the Kentucky Resolves, not centralization and “authoritarian” government, as Millhiser claims, and certainly not faith in the United States Supreme Court. Jefferson once said that he could not understand why people put faith in Supreme Court decisions because they were simply the “obiter dissertation of the Chief Justice [John Marshall].” So-called “tenthers” would agree.
I have pointed out before here and here that decentralization is a philosophy that all groups, left or right, should support because it protects the interests of the community from oppressive centralization and authoritarian government. Certainly, Millhiser would agree that the people of California have a better idea of problems in California than the people of Alabama and vise-versa and for Alabama to legislate for California would be disastrous for the people of California. “Tentherism” is only dangerous to those who, like Millhiser, need a strong central authority to ram their agenda down the throats of the American people.
If Millhiser was truly interested in democracy, he would support the Tenth Amendment. Without question, many “Anti-federalists” who pushed for a State sovereignty amendment generally championed “democracy” and argued against ratifying the Constitution because they said it was undemocratic. By design, local and State governments are more democratic than the federal government as most have a more reasonable representative ratio, greater minority representation, and the direct democracy methods of initiative, referendum and recall.
But that is not what Millhiser means by “democracy.” His “democracy” is more akin to the national socialism of democratically elected progressives like Adolf Hitler, Benito Mussolini, and Francisco Franco, and it rests on the destruction of the limited federal republic of the Founders and the use of propaganda and demagoguery to influence voters. It is centralized power or what John Randolph of Roanoke called the problem of “King Numbers,” the tyranny of the fifty plus one percent. As many “Anti-federalists” pointed out in 1787 and 1788, Millhiser’s brand of democracy cannot work over a large geographic and demographic community without destroying liberty.
Millhiser’s conclusion that “Democracy is not easy…” reminded me of a line from the film Green Zone. During a briefing on the political instability of Iraq, administration official Clark Poundstone, played by Greg Kinnear, defended the dismantling of Iraq and ensuing violence and unrest upon the premise that “Democracy is messy!” See, progressives do think alike! Take our democracy and like it you ignorant wretches! Which is more authoritarian, a cause that champions individual and community liberty or one that forces people to think and act a certain way in the name of “progress?” I’ll take my chances with the former.
Brion McClanahan holds a Ph.D in American history from the University of South Carolina and is the author of The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009).
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