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Sen. Wicker and the Tenth Amendment

There is yet another thing for which we must give the Tea Party movement credit. It has played a role in making Constitutional scholars out of everyday working folk.

Recently I have come across everyone from the auto mechanic to the curb store clerk who have in a heightened state of agitation and in a firm voice said in effect, “I don’t care who is in charge, just as long as they start following the Constitution again.”  Indeed, there is nothing like a good ole debate over the original intent of the founding fathers in their writing of the Constitution to get the political juices flowing. Such opportunities are few and far between, but when they occur these bedrock civics discussions can be very enlightening.

Last week Mississippi’s Junior Sen. Roger Wicker presented the nation with just such an opportunity. Sen. Wicker introduced legislation titled “Restoring the Tenth Amendment Act.”  Now Sen. Wicker has admitted that the waning days of a “lame duck” Congress offer little opportunity for the bill to gain a lot of traction. Nevertheless, given the large number of Republican reinforcements on the way to bolster the conservative cause in the new Congress that begins in January his introduction of such legislation would serve to get the idea before the public.

With so many of us becoming sensitized to Constitutional meaning this is an opportune time to consider Sen. Wicker’s legislation. What then does the Tenth Amendment to the Constitution say?  This, the last amendment in the Bill of Rights, states that “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.”  Those who look askance on any growth of power by the federal government in Washington believe that such happens invariably at the expense of the states and that such expansion of power at the national government happens in clear contrast to the language of the Tenth Amendment.

Sen. Wicker’s legislation, if enacted, would, for the first time ever, legitimize statutorily the power of state officials to reject the implementation of federal legislation, rules and/or regulations within the boundaries of the respective states. Old-time policy wonks will recognize this approach as being strikingly similar to the principles of “nullification” and “interposition” as advocated by John C. Calhoun during the pre-Civil War days and, among others, our own Sen. James Eastland during the Civil Rights era. These concepts where a state could hold a directive emanating from Washington as “null and void” within that state’s borders always foundered largely due to the context in which they were advocated. In the pre-Civil War days it was to protect the institution of slavery among the Southern states against federal intervention, and in the Civil Rights debates nullification was proposed to preserve state laws mandating racial segregation. In short, any legitimate discussion of the concept of nullification became tainted in its association with matters of race.

Such is not the case this time.  Consequently, it may open up debate over the Wicker legislation to a wider, more willing, audience. One assumes that the driving force behind Sen. Wicker’s efforts is the looming implementation of the comprehensive healthcare legislation pushed through Congress by the Obama administration. It should be made clear, however, that the Wicker legislation will apply to any and all implementation within the states of federal legislation and subsequent rule making. The Wicker legislation will create a process where states may dig in to resist federal action within the states’ boundaries regardless of whether the federal action involved the Obama healthcare plans or regulations promulgated by the Environmental Protection Agency.

Thus, we may potentially find ourselves revisiting the tension that has existed since the founding of the Republic, i.e.  the tension between a philosophy of power distributed among the 50 states or power that is more centralized in the national government. There are those who feel that this tension should always exist as a means of balancing the power that exists throughout our federal system.

While those who, like Sen. Wicker, are placing the Tenth Amendment on center stage, there is a similarly vocal group who will no doubt trot out the philosophy of the Constitution’s “elastic clause,” which they will claim opens the door to an indefinitely broad interpretation of national government power versus the states – particularly as it occurs in behalf of citizens. The so-called “elastic clause” appears in Article I of the Constitution, and reads in part that Congress shall have the power, “…to make all laws which shall be necessary and proper for carrying into execution the forgoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”

Hopefully, Sen. Wicker’s legislation will result in a new debate over the distribution of power within the federal system. To be sure, this chapter of the “nullification” debate will be different since the core subject matter will have nothing to do with matters of racial subjugation, and also because of the addition of thousands of citizens with a new interest in the powers outlined by the Constitution.

Dr. William Martin Wiseman is director of the John C. Stennis Institute of Government and professor of political science at Mississippi State University. Contact him at marty@sig.msstate.edu.


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