It is well known within many political and constitutional circles that the 10th Amendment of the United States Constitution has a long, challenging history with little accepted ‘resolution’ as to the full implications.

The amendment itself 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.”

Many on the right are deeply, passionately and consistently concerned that this Amendment has lost its power by a raging modern federalist power play and approach to state and federal relations. Up to the civil rights era, of course, states rights was particularly accepted as a central philosophical core of our nation’s history. Many on the left see this issue as a strategy of the right to assume more control for policies and programs–anti civil rights, anti choice, etc.– than a philosophical concept.

The danger of this position is that we place ourselves at the mercy of the federal government’s authority whether we like the current government or not. That seems fine when we’re on board with what’s going on in D.C., not so fine when we’re opposed. So the underlying foundation of the role of the states become more important to address when we are on board with the D.C. direction. Why? Because we can engage in a meaningful dialogue about the roles without feeling the pressure to push policy A or policy B. We can approach this as the constitutional question that it is.

Minnesota Governor Tim Pawlenty recently raised this issue in the context of his opposition to the Obama Administration’s health care reform efforts. While I strongly disagree with the Governor’s policy, I do feel he has a legitimate issue (from his perspective) in raising this central constitutional question from a philosophical perspective.

Here’s the full interview and context from the Washington Independent:

“On a Thursday night Republican Governors Association conference call with conservative activists, moderated by Erick Erickson of RedState, Gov. Tim Pawlenty (R-Minn.) broached the possibility of “asserting the 10th Amendment” to keep Minnesota from fully participating in a health care plan passed by Congress and signed by President Obama. The 10th 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.

The question from the caller: “I want to know if any of the governors are willing to invoke the 10th Amendment if the health care bill is passed.” Pawlenty’s answer:

Thank you for the question. It’s a great question. I don’t think the nation’s had a proper federalism debate since Ronald Reagan raised the issue regularly in the 1980s. And by federalism of course we mean the proper relationship between the federal government and the states, trained as a cornerstone around the 10th Amendment. I believe that amendment has been discounted to the point of making me very sad.

Depending on what the federal government comes out with here, asserting the 10th Amendment might be viable option, but we don’t know the details. As one of the other callers said, we can’t really even get the president to outline what he does or doesn’t support in any detail. So we’ll have to see. I’d say that’s a possibility.

You’re starting to see more governors, including me, and specifically Gov. Perry from Texas, and most Republican governors express concern around these issues and get more aggressive about asserting and bringing up the 10th Amendment. So I think we could see hopefully a resurgence of those claims and maybe even lawsuits if need be.”

(End of Governor’s remarks and interview)

I am profoundly troubled by this issue because I feel–from a policy, philosophy and constitutional perspective –that our friends on the right are in many ways essentially correct on this issue despite being misguided on the specific policies themselves. It’s sort of an ACLU argument–I don’t like what you’re saying but I’ll defend to the death your right to say it.

The balance has shifted away from the states to the federal government to a point where we rarely engage in the depth of dialogue about the right roles and responsibilities. The Governor’s comment is accurate that we haven’t had a “proper federalism debate since Ronald Reagan raised the issue regularly in the 1980s.”

I want to stress that while I do not agree with the right’s approach, policies objectives in this sense, I do feel we as a state and nation would benefit from elevating the level of dialogue about the roles and responsibilities of the state and federal government not just in a historical context, but in a 21st Century vision based upon our constitutional foundation. The 10th Amendment is not a department down the hall nor a quant concept of old. It is, of course, part of the DNA of our nation. We should treat it as such.

Unfortunately, complaints from the right are accurate in that states have been pushed into a corner by accepting a broad increase in federal authority and scope in exchange for federal money. States readily accept the terms and conditions from the federal government and, in fact, there isn’t even so much as a negotiation as there is quiet acceptance and resignation from state capitals. Almost regardless of the policy, the states rarely seem to even push back anymore.

Rep. Matt Shea, R-4th District, introduced a House memorial to take a stand on this issue and essentially invoke the right of the state to reclaim its authority under the Constitution. While I’m not ready to storm the Bastille with the Republicans on this, I do think the constitutional question itself is legitimate and very compelling.

And worth a modern, meaningful and genuine dialogue.

Your partner in service,

Reuven.