Arguments About Sandwiches

Let's argue about federalism and put it on a sub roll.

Aug 11, 2023

Since ranking the Amendments to the Constitution, we have spent a lot of time exploring the details of how we govern ourselves.

The United States is unique for a variety of reasons. The one that stands out is the idea that we are a federal constitutional republic. It’s a concept that has been argued about before the ink was dry on the document birthing it into existence.

When I ranked the Eleventh Amendment, we dove into the idea that after ratifying the Constitution and the Bill of Rights, we experienced a problem immediately when some guy sued the state of Georgia, and the Supreme Court sided with Georgia.

When I ranked the Ninth Amendment, we dove into the idea that the people still retained some rights that aren’t enumerated in the Constitution. It’s confusing, and as I wrote, no one really argues in court about this amendment anyway. But it exists, so the possibility of arguing about it is always there.

This leads us to the meat portion of this amendment sandwich. The Tenth Amendment.

It’s the last of the Bill of Rights, an idea championed by the Anti-Federalists, who argued against a strong central government, despite living through the Articles of Confederation.

You could call the Anti-Federalists States Righters, although that doesn’t roll off the tongue very well and doesn’t necessarily draw a strong contrast to their opposition - the Federalists. These two gangs argued all the time about which government was more important.

Like our homeboy, Alexander Hamilton, a Federalist, wanted a strong central government. But a strong central government can, and has, impeded the individual's rights. This is one reason why Alex liked it so much – the impeding.

The creation of smaller governments, called states, has allowed us some protection from the federal government in various situations due to checks and balances and all that stuff.

So we created this thing called America, a government with one central power and fifty little powers across the place filled with people who have opinions on what is a sandwich and what isn’t.

It’s fun.

Let’s dive in and see what kind of sandwich we have. Then let’s argue about it.

15: Amendment X

Its purpose: The Constitution only provides power to the federal government. Any powers that aren’t spelled out in the Constitution or prohibited by the states are reserved by the states or the people.

Year proposed: 1789

Year Ratified: 1789

The Good:
Since it’s presidential election season, I have gotten to know a few lesser-known Republican candidates. One is North Dakota Governor Doug Burgum.

Growing up as a farmer from a small town, Burgum became a software developer of accounting services and sold his business to Microsoft for $1.1 billion in 2001. A few decades later, he won the governorship and has already dumped $10 million to run for president.

He’s running on a Tenth Amendment platform, which means we don’t need the federal government to get involved in everything. I doubt the people who will vote for him know anything about the Tenth Amendment, but if it gets people to check it out, it’s okay by me.

To see his platform in practice, Doug refused to sign a book-banning bill. Instead, he suggested that if people have an issue displaying a particular book, it’s better to talk to that specific librarian. In his state, there’s no need for the central government to impede on the local government.

Now Doug, of course, spouts out ideas like eliminating government jobs because government jobs are inherently wasteful and that government should be run like a business – which is like nails on a chalkboard for me – so even though Doug doesn’t understand how different government and business are, the concept that inside of government, things don’t always have to be resolved at the top is a good one.

The Bad:

When the Supreme Court ruled that “separate but equal” wasn’t a thing and that schools needed to be desegregated, many Southern states tried to delay or circumvent the action.

One of those was Arkansas, whose legislature passed a Constitutional amendment forbidding desegregation. This led to an ugly incident in Little Rock where nine black students were denied entrance into a school and needed President Eisenhower to federalize the National Guard to protect their civil rights and escort them into school.

A year later, the Court ruled in Cooper vs. Aaron that Arkansas could not delay the desegregation order, no matter the reasons behind it.

One reason to not only delay it but to nullify it was the idea that the Constitution did not state that the Supreme Court had the authority to make such a ruling as it did in the landmark case of Brown vs. the Board of Education.

The Court simply replied that it was the sole interpreter of the Constitution and buzz off state of Arkansas; the federal government has ruled segregation is unconstitutional.

The Ugly:

In Article One, Section 8 Clause 3 of the Constitution is something known as a Commerce Cause. It is an enumerated power given to Congress to regulate commerce between nations and among states.

Despite having such a detailed job description, with sections and clauses, states still argue against it. But here is where federalism gets tricky; one example involves getting high off marijuana.

In 2005 the Court ruled in Gonzales vs. Raich that the federal government had the right to criminalize medical marijuana even though defendant Angel Raich used it to medicate herself and that it was legal in her state of California.

Back in 2002, the Drug Enforcement Agency and the local Sherrif’s office destroyed another defendant Diane Monson’s six medical marijuana plants, citing the Controlled Substance Act. Raich and Monson sued, saying it violated a bunch of amendments, including the Tenth.

The government argued that even though Monson and Raich did not sell the marijuana, its existence threatened commerce and, therefore, could be regulated by a blowtorch.

The Supreme Court agreed.

I imagine everyone involved in this case got high after it was over.

Who proposed it?

The 1^st Congress. Connecticut Representative Robert Sherman drafted it, and James Madison introduced it. The states immediately passed it, and the implication was that there would be no more implications that may come from the Ninth Amendment.

Okay?

Why did I rank it here?

As much as the concept of state’s rights drives me crazy, I’ve realized that, like most things in life, there is some good to the layers of government. Like back to my man, Doug, who pointed out that some laws don’t make as much sense in Georgia as they would in California. Local governing has value.

It certainly has me thinking more about the purpose of the states, but I still dislike the concept of the Electoral College, so don’t think I’m going that far.

Amendments should clarify the law’s intention, and even though they are subjected to the judicial system, that’s how it is supposed to work. We could have 700 Amendments, and I would argue that it is okay to argue about them.

The Tenth Amendment feels like a top 15 amendment to me.

Okay, let me know what you think of my ranking.

Do you think our federal government has overstepped its Constitutional mandate? There’s certainly an argument to be made.

Has it been worth it? Why haven’t we corrected it? Does the Tenth Amendment address it, and that’s the end?

Can I ask more questions and not get any responses? Who knows? If you like the lesson, could you hit the like button and share it with someone? Maybe?