...as he has actually put a bit of effort into understanding our Constitution, but also for others who may not understand.
Strictly for informational purposes; any further debate or commentary will hopefully be on topic and lacking "rantish-ness".
The Reactionary Utopian
February 2, 2006
PENUMBRAS, EMANATIONS, AND STUFF
by Joe Sobran
You could easily get the impression that the U.S.
Supreme Court has banned public displays of the Tenth
Amendment. Actually, this hasn't happened, at least not
yet. Anyway, adults can still read it in the privacy of
their own homes, if they can lay hands on a copy. And in
the age of the Internet, it would be hard to suppress
But a conspiracy of silence, if observed by enough
people, can be as effective as an outright ban. And since
at least the days of Franklin D. Roosevelt, that lump of
foul deformity, most employees of the Federal Government
have tacitly agreed to avoid all mention of the Tenth,
which encapsulates the meaning of the U.S. Constitution.
The silence was broken in 1996 by Bob Dole, who, in
a desperate attempt to salvage his losing presidential
campaign, said he always carried a copy of the Tenth in
his wallet. Not that anyone would have been led to
suspect this from his long voting record.
The Tenth is often referred to as "the states'
rights amendment," but that's not quite accurate. It
speaks of powers, not rights. It says that the powers
that haven't been "delegated" to the Federal Government
in the Constitution are reserved to the individual states
and the people.
This was an attempt to make the Constitution
foolproof. Nice try! At the time, it may have seemed that
nobody, not even a politician or a lawyer, could miss the
point: The Federal Government could exercise only those
powers listed in the Constitution. Whatever wasn't
authorized was forbidden. The basic list was found in
Article I, Section 8. It was pretty specific: coining
(not printing) money, punishing counterfeiters, declaring
war, and so forth.
In principle, simple. Unfortunately, however, it
runs up against the politician's eternal credo: "In
principle, I'm a man of principle. But in practice, I'm a
So the politicians, all practical men, began their
endless but fruitful search for powers other than those
listed -- "implied" powers that weren't spelled out in
the text, but were "necessary and proper" for the
execution of the explicitly enumerated powers. The very
practical Alexander Hamilton argued that a national bank
was necessary and proper in this sense; but Thomas
Jefferson hotly denied it, and soon the two men were
wrangling over what "necessary and proper" meant,
reaching an impasse over the word "and."
Among the most creative interpreters of the
Constitution was Abraham Lincoln, who found he needed all
the implied powers he could get his hands on in order to
prevent peaceful secession by the exercise of violence.
As Professor Harry V. Jaffa approvingly puts it, Lincoln
soon "discovered" a huge "reservoir of constitutional
power" that suited his purpose. Nobody had discovered
this "reservoir" before. Later such reservoirs would also
be called "penumbras, formed by emanations."
But the richest cache of penumbras and emanations
was later found in Congress's power "to regulate commerce
with foreign nations, and among the several states, and
with the Indian tribes." Especially since the New Deal,
the part about "the several states" has gotten quite a
workout. It is now interpreted to mean that the Federal
Government can "regulate" just about everything we do,
from sea to shining sea. This makes the rest of the
Constitution pretty much superfluous.
Where does this leave the Tenth Amendment? Oh,
that. The Supreme Court has held that it's just
"declaratory," a mere "truism," a trivially true
acknowledgment that the states retain any powers they
haven't actually "surrendered" (the Court carefully
avoided the fraught word "delegated").
To call all this "legislating from the bench" is an
almost imbecilic understatement. It inverts the plain
meaning of the Constitution, making it mean the opposite
of what it actually says. It's nothing less than
revolution by means of "interpretation."
If the power to "regulate commerce ... among the
several states" had been as broad as the courts now say,
Congress could have abolished slavery, imposed (and
repealed) Prohibition, and given women the vote by mere
statute, without all the bother of amending the
Notice that the Tenth Amendment is one of the few
passages in the Constitution in which the Federal
judiciary hasn't discovered reservoirs of penumbras and
emanations. I wonder why.