The Lost Amendments

Can the states and the people reassert themselves in the dying days of America?

We must be one part idealist, one part realist—idealist because, without our ideals, we become rudderless; realist because without the pragmatic considerations of time, circumstances, and history, it will be no simple matter to get people to come along with us in the direction of our ideals. I say this as one who finds it difficult to argue with the words of Lysander Spooner yet finds himself among a remnant clinging to the floating wreckage of the U.S. Constitution, adrift at sea.

The most pragmatic, immediate, and obvious measure that must be taken as soon as possible is to enforce the Ninth and Tenth Amendments. That means shaking ourselves from this collective amnesia and using the court system to restore them.

This prescription will be a fool’s errand to many Constitutional Scholars and High Minds.

So be it.

If your civics are rusty, here are Amendments Nine and Ten as a reminder:

Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10: 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.

One would do well to commit these to memory. If they do not stick in the mind—or if one is reading from another country—people of all nations emulate these amendments or advocate for something similar, such as a principle of subsidiarity. Switzerland, with its canton system, is one to emulate. Tiny Liechtenstein too. But the idea is that power should be devolved.

One might follow the old progressive Justice Louis Brandeis, who said a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Ironically, Brandeis spent much of his career risking the rest of the country. He helped to create a series of monstrous (and unconstitutional) federal agencies. His most dubious achievement might be having assisted in creating the Federal Reserve Bank. While one shudders to think what else Brandeis might have dreamt up for the country, that proves his original point. 

Reining in the High Minds with their unconstrained visions is precisely the point of having fifty laboratories. To wit: if one experiment fails, there are 49 that might succeed. If two experiments fail, there are 48 that might not. And so on. Other states can avoid failures and replicate successes. One wouldn’t want to argue that state legislatures aren’t prone to jumping on bandwagons. But at least not every state will be a California, where politicians fancy they can suspend reality by the force of law. (Statewide rent controls are just one example.) 

With its bloated federal register and One-Size-Fits-All statutory regime, the U.S. government has become a megalith on stilts. The stilts were never meant to bear such a load. Still, it’s not just that too many laws and regulations weigh heavily upon the states and people who have unenumerated rights according to the Constitution. If the grand experiments of Congress fail, that failure is catastrophic. 50 guaranteed failures.

So, in the interests of merely cutting losses, it might be time to accept that some of the highest High Minds will infest the state capitals—even if they’ve just scurried away from what they wrought. If their grand plans are sustainable, they will survive. If not, they will fail. But the High Minds must be run out of Washington. Let them go to Springfield, to Albany, and to Sacramento and bring those states to ruin. Of course, the hawks of endless war and business ‘incentives’ and corporate welfare will infest the state capitals, too. Will they flock to Nashville, Austin, or Tallahassee? Who can say? But let them be dispersed and not concentrated in that red-light district known as K Street.

They have made collapse all but assured. 

How one goes about enforcing federalism is another question. In a time of impending disaster, it might well be a combination of factors:

• A barrage of lawsuits launched on Ninth and Tenth Amendment grounds, brought by individuals and the states.

• A threat of secession by individual states.

• A federal statute detailing enforcement.

• The states’ refusal to comply with Washington (on 9A and 10A grounds), especially when the federal government loses the power to dangle federal funding.

The idea of federalism is that governance tasks should be handled as locally as possible. If no one has plans to enforce the Ninth and Tenth Amendments, then maybe it’s time for a Subsidiarity Amendment. 

Political scientist Charles Murray writes:

Reasonable people will disagree about the exact boundary of public goods, even when a rigorous definition of public good limits the range of possibilities, the mechanism for coping with such disagreements is embodied in the principle of subsidiarity. The legitimate functions of government should be performed at the most local feasible level. (Emphasis mine.)

If Congress were to pass such an amendment, it would probably be redundant, making one wonder whether our nation’s great charter will ever be enforced if it is not enforced today.

Maybe a court case will emerge that catalyzes changes to case law. Maybe something will change once everyone realizes the federal government has done too much and broken the bank. Maybe a desperate legislature will pass something monumental, but I can’t imagine how much clearer one can than the Bill of Rights. A Subsidiarity Amendment would be a refresher, perhaps giving courts more teeth in striking down unconstitutional laws. Honestly, it isn’t easy to imagine Congress sacrificing its power.

Matters would have to be grave indeed. But grave they are likely to become.

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