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MN2020 Journal: The Tenth Amendment Freeze-Out

March 26, 2010 By John Van Hecke
We finally have national healthcare reform and Minnesota's conservative public policy leaders are already demanding that we reject it. More specifically, they want Minnesota to challenge the Affordable Healthcare for America Act as an unconstitutional intrusion on state powers.

That's right, extending health insurance to every American is, somehow, not just an objectionable policy but unconstitutional, intruding on Minnesotans' rights as a free people. Or Minnesota's rights as a sovereign state. Or something like that. It gets a little mushy.

Last week, State Senator Julianne Ortman led the legislative charge. After losing a committee vote, Ortman issued a press release urging legislators to "protect the interests of the State of Minnesota granted to us by the 10th Amendment. The time has come for immediate review of the constitutionality of the federal health care proposal." Governor Tim Pawlenty requested that the Minnesota Attorney General's Office "join other attorneys general to protect the constitutional rights of our citizens." Most recently, every Minnesota Republican legislator called for a Minnesota lawsuit confronting the national healthcare reform bill's conservative-declared unconstitutionality, citing Tenth Amendment grounds.

With all this sudden interest in constitutional issues distracting us from healthcare reform's real work--you know, getting actual people actual healthcare--I thought a little legal sightseeing might be in order. What is the US Constitution's Tenth Amendment and why are conservatives embracing it as much as traveling medicine show barkers extol miracle elixirs?

Let's tackle the second part first. In conservative legal and policy world, the Tenth Amendment, like patent medicine is a touted cure-all. It's the snuggy bear defiantly thrust against night's imagined terrors.

The Tenth Amendment to the US Constitution, ratified December 15, 1791, 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." In a sweeping, nonspecific fashion, it's supposed to limit federal government's authority, asserting state primacy.

But, that's not how things worked out.

Even at its passage, the Tenth Amendment was viewed as a powerless sop to the southern, states' rights crowd. Now, to be fair, "states' rights" in 1790 meant something very different than what they meant in 1860 or even later in 1960, but the federalist perspective dominated. Where amendments 1-9, the Bill of Rights, details specific rights and protections, the Tenth Amendment functions as a placating period, politely wrapping up the whole package.

There's a world of difference between a specific right to a peer-juried trial, for example, and unspecified powers being reserved to the States.

State-Federal tension predates the US Constitution. The Articles of Confederation proved too restrictive on the new American nation's functional exercise of federal responsibilities. Greater need for centralized national authority led to the US Constitution and, following further disagreement, rights enumerating amendments 1-10. Equanimity between the states required creating a single, greater nation.

States most frequently exercise a Tenth Amendment authority claim when they seek exemption from federal regulation. Rather than arguing that the national government favors a particular state over another, regulatory challengers assert that the central government lacks authority to compel participation. This is usually followed by a solemn recitation of the "powers not delegated" language.

It may make angry conservatives feel better, draping themselves in constitutionally derived verbiage, but it doesn't change 200-plus years of law.

Mostly, Tenth Amendment authority is asserted to protect privileged order. Whether defying Voting or Civil Rights Acts protections or seeking not to be bound by expanding national healthcare reform, the whole idea concerns retaining the state's benefits for the few rather than the many. Liberty, in this regard, apparently shields only some and not others.

This healthcare reform Tenth Amendment challenge is a distraction. Minnesota's conservative public policy leaders want us to overlook Minnesota's stagnant economy, persistently high unemployment rates, crumbling transportation infrastructure and sliding school quality and focus on yet another pointless exercise in legal futility. Let's skip the grandstanding and get straight to the real work at hand: moving Minnesota's economy forward.

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