Posted on Wed, Nov. 11, 2009

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Cal Thomas: 10th Amendment may restrain government

Does the U.S. Constitution stand for anything in an era of government excess? Can that founding document, which is supposed to restrain the power and reach of a centralized federal government, slow down the juggernaut of czars, health insurance overhaul, and anything else this administration and Congress wish to do that is not in the Constitution?

The framers created a limited government, thus ensuring that individuals would have the opportunity to become all that their talents and persistence would allow. Members of the left have put aside the original Constitution in favor of a "living document" that they believe allows them to do whatever they want and demand more tax dollars with which to do it.

Can they be stopped? Some constitutional scholars think the 10th Amendment offers the best opportunity. The 10th Amendment states: "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 1939, the U.S. Supreme Court began to dilute constitutional language so that it became open to broader interpretation. Yet during the past seven decades, as the court has tolerated the federal welfare state, it has never, except in wartime, "authorized an expansion of the federal scope quite as large as what is being proposed now," wrote Rob Natelson, professor of constitutional law and legal history at the University of Montana.

However, in recent years the Supreme Court has said that there are boundaries. For example, Natelson wrote that former Chief Justice John Marshall "once wrote that if Congress were to use its legitimate powers as a 'pretext' for assuming an unauthorized power, 'it would become the painful duty' of the court 'to say that such an act was not the law of the land.' "

It would be nice to know now what those boundaries are and whether Congress is exceeding its powers as it seeks to alter one-sixth of our economy and change how we access health insurance and health care.

Using the court's Roe v. Wade ruling in 1973, Natelson makes a fascinating argument in his essay "Is ObamaCare Constitutional?" In Roe, he writes, the court struck down state abortion laws that "intruded into the doctor-patient relationship. But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200. 'Global budgeting' and 'single-payer' plans go even further, and seem clearly to violate the Supreme Court's Substantive Due Process rules."

Constitutional attorney John Whitehead, president of the Rutherford Institute, tells me that "although the states surrendered many of their powers to the new federal government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution's text. The framers rejected the concept of a central government that would act upon and through the states, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people. The court's jurisprudence makes clear that the federal government may not compel the states to enact or administer a federal regulatory program."

Lawyers are busy writing language only they can understand that seeks to circumvent the intentions of the founders. But it will be difficult to circumvent the last four words of the 10th Amendment, which state unambiguously where ultimate power lies: "or to the people."

Cal Thomas is a columnist with Tribune Media Services.

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