Fox: Tenth Amendment is a tool for the reckless

Friday, November 6, 2009

A wise man once said the last refuge of scoundrels is patriotism.

I'll say the last refuge of cowards is the Tenth Amendment.

The Tenth has been invoked a lot lately. The Tenth has been mentioned as the reason health-care reform is unconstitutional. It's the way the Speaker of the Tennessee State House says his state can circumvent federal gun laws. It's the states' rights argument carried to the extreme.

The amendment reads: "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."

What that says, in other words, is that if a power is unclaimed by the federal government -- or if that power is not denied to the states -- then the states have it. The intent is to clarify the basic point that if the feds aren't in charge, the states are.

It's a truism, not a grant of power.

Soon after the framers wrote the original document, it was obvious states couldn't act independently. When the Constitution was written, there wasn't much interstate commerce at all. Going from one end of the country to the other end didn't take five hours -- it took five months. So the federal government claimed some powers to tie up loose ends.

If states acted on their own when it came to matters of interstate commerce, it would be to easy for states to grant monopolies to business, and too easy for large businesses to fix prices and destroy smaller competition.

Too easy for large businesses to fix prices? Hmm. Feels a little bit like the health-insurance quandary we find ourselves in today.

The public health-insurance option proposed by progressives is designed to break the stranglehold that a few insurance companies have on states like Tennessee. The option would give people a choice -- something they really don't enjoy right now. Call it Medicare, Part E (the "E" stands for "everyone").

There are legitimate arguments on both sides of the health-insurance issue, but the Tenth Amendment is not one of them. U.S. House Speaker Nancy Pelosi, when asked about how the Tenth Amendment fits into the health-care debate, said quite simply, "Are you serious?"

Pelosi was right. But Ron Ramsey, the Speaker of Tennessee's State Senate, doesn't seem to get it.

Ramsey is writing a letter on behalf of plaintiffs in a lawsuit against the federal government to exempt firearms and ammunition made, sold and kept within the state borders from federal gun laws. Tennessee has already adopted a law that says what's made in Tennessee and stays in Tennessee is subject only to Tennessee law.

It's a pretty reckless interpretation of the Tenth Amendment. The Tennessee bill -- it passed overwhelmingly in both houses of the Legislature -- put the state at odds with the Bureau of Alcohol, Tobacco, Firearms and Explosives.

"It's analogous to a speed limit," said an ATF agent, explaining the federal agency's position. "If the speed limit on the interstate is set at 70, a city along the interstate can't come along and say, 'There is no speed limit on the interstate through our city.' The highway patrol could still enforce the speed limit."

In other words, state law can't usurp federal law.

Everyone learns at some point in life that there are three remedies to a negative situation: avoid, alter or accept it. Those against health-care legislation or gun-control laws don't need to accept what they see as bad policy. They should try alter the policy in all the accepted ways.

But reverting to the Tenth Amendment is avoidance. It's the equivalent of taking your ball and going home. And these issues are too important to do that.