WASHINGTON — It is Gov. Rick Perry's main appeal as a presidential candidate that 48 percent of the nation's job creation during the recovery has come in Texas. But his main message to America is not economic but constitutional.
Perry's passion is a rigorous reading of the 10th Amendment — the one insisting that powers not delegated to the federal government are reserved to the states or the people. In 2009, Perry endorsed a resolution of the Texas legislature claiming “sovereignty under the 10th Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.” It was an act without legal significance but not without political meaning. “We've got a great union,” Perry insisted. “There's absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, who knows what might come of that?”
Perry's argument befits a state that once possessed its own foreign policy and an embassy on the Place Vendome in Paris. But the approach sets limits on a presidential candidate. The last attempt to campaign on the appeal of the 10th Amendment was made in 1996 by Bob Dole, who carried a well-worn version in his breast pocket. The strategy amounted to unilateral policy disarmament. While Bill Clinton described improvements in education and public safety, Dole talked of procedural limits on federal power. The domestic centerpiece of Dole's campaign was a void, a negation.
Given President Obama's record of federal overreach, the 10th Amendment may have more political appeal this time around. But the problem with a sweeping application of the amendment is not merely political.
Fights about the proper role of the government were common among the Founders. Thomas Jefferson thought federal spending should be limited to purposes specifically enumerated in the Constitution — little more than war and the Post Office. James Madison took his side. Alexander Hamilton envisioned a powerful, commercial republic beyond a loose confederation of agricultural states — requiring the federal government to exercise implied powers in promoting the general welfare.
For the most part, George Washington and Chief Justice John Marshall endorsed Hamilton's more expansive view of federal authority. Even Jefferson and Madison eventually made their own “convenient modifications.” Jefferson, whose theoretical purity often resulted in hypocrisy, managed to make the Louisiana Purchase without amending the Constitution to enumerate this massive exercise of federal power. Madison signed legislation establishing the Second Bank of the United States. The new government, as Hamilton foresaw, would need to act in a “vast variety of particulars, which are susceptible neither of specification nor of definition.”
A useful corrective
The Jefferson-Hamilton debate has recurred in American history, often in the context of race. Following the desegregation of schools in 1954, 19 senators and 77 representatives signed a manifesto criticizing Brown v. Board of Education, in part, because the “Constitution does not mention education.” It is possible, of course, for a sound argument to be pressed into the service of a bad cause. But any Southern politician needs to be careful about historical context.
It is worth noting that stricter interpretations of the 10th Amendment, through much of American history, have been associated with the Democratic Party. The Federalist founders expressed their tea party enthusiasm in a manner more favorable to federal authority. Abraham Lincoln combined a ferocious commitment to the Union with an expansive program of internal improvements.
An emphasis on the 10th Amendment is a useful corrective. Federal powers must be at least implied by the Constitution, not merely conjured by the courts. A little Jeffersonianism now and then is a good thing. But it is not identical to Republicanism.