Scorn and Derision or: The Importance of Knowing Your Amendments…

For the entirety of my lifetime, the 1st, 2nd, 4th Amendments* have gotten somewhere around 95% of the total air time of anyone discussing the Constitutional Amendments in any context. The other five percent is given over to the taxation is theft crowd, celebrating the repeal of prohibition, and everything else. The last three years, something of a historical outlier, have also included not insignificant discussions of the 25th Amendment as well. 

After listening to President Trump’s claim that “When somebody is president of the United States, the authority is total,” it appears that we’re going to spend some amount of time in the near future pondering the Tenth Amendment.

The president is right that we do need to develop a plan for putting the country back to work. Sooner or later, we’re going to have to start opening up the economy. Great Plague or not, there’s a limit to how long people are going to tolerate sitting home, watching their livelihoods crumble, and seeing no obvious end in sight. Beyond the statement of fact that the economy needs to be opened, his argument that it’s a decision to be made by the federal executive branch alone is, in a word, wrong. Other words that could have been used here are: asinine, nonsense, bunk, hokum, or bullshit.

Just as the timing and decision to curtail all but essential business was made by state governors across the country, the governors will also establish the timing and criteria by which business is allowed to reopen. It may be done in conjunction with advice from the federal government, it may be backed up with federal resources, but the decision on timing and “how to” resides with the governors.

Given the 10th Amendment’s reservation of powers not delegated to the federal government to the states, there simply isn’t a lawful mechanism by which the president may issue a blanket decree that state and local government, businesses, and educational institutions are open for business. Anyone who tells you otherwise is lying. Anyone who insists that the president does, in fact, have this authority, is attempting to empower the executive branch far beyond anything envisioned under the Constitution – and deserves the scorn and derision of those who have grown and prospered under that protection of that great charter. 

Constitutional Amendments Quick Reference Guide:

  • 1st Amendment – Freedom of speech, religion, and the press
  • 2nd Amendment – Right to keep and bear arms
  • 4th Amendment – Freedom from unreasonable search and seizure
  • 10th Amendment – Reserves powers not granted to the Federal government to the states or the people
  • 16th Amendment – Allows Congress to levy a national income tax
  • 21st Amendment – Repeals prohibition
  • 25th Amendment – Clarifies the rules of presidential succession

Towards a new federalism…

Change is coming. It’s so palpable that if you’re not too fried by the endless stream of immediate and pressing news you can almost feel it. In the long history of this republic, huge, sweeping change has never come in the good times. There’s no incentive towards structural change when the good times roll.

Over the last hundred years, the biggest changes in this country occurred following economic catastrophe and war, specifically the Great Depression and World War II. It’s probably too easy to assume that once we come out on the other side of the Great Plague we’re likely to see considerable changes coming to how healthcare is delivered and a host of changes surrounding the financial sector – strengthening unemployment insurance (and associated processing systems) at a minimum. Some of the changes will inevitably be of such scope and scale that 30 days ago they’d have been laughed out of the room rather than rushed through implementation. What would have seemed radical under the old version of normal could fairly easily become the new normal of the near future.

Those changes are coming – and no politician who’s interested in reelection will dare to stand against many of them.

Where the social compact that undergirds the republic regularly changes over time, the bigger change I suspect we may see is an unprecedented whipsaw in how we view the “federal” aspect of our federal republic. Since the Civil War, the government in Washington has increasingly centralized the powers of government. The pendulum swung so far that direction that some even argued that we had evolved beyond the need for states; Perhaps that we would best be governed in super-state, regional arrangements. 

What we’ve seen on the last three weeks in New York, California, and my native Maryland (among others), is activist governors leading the response to a health emergency in the absence of clear guidance from the federal government. In some ways, they’re the governors who understand the basic theory of emergency management – Local response is supported by the state while the states draw resources from the federal government when their own resources are exhausted. In this case, though, the federal resources barely seemed to get off the ground and governors were left to coordinate between themselves and directly with industry in an effort to fill requirements – while shaming what resources they could out of the administration. 

I wonder if this isn’t the first step towards a new federalism – one that reverses some of the 160-year long aggregation of authority to officials along the banks of the Potomac. There’s plenty of examples of state governors getting their response to this thing exactly wrong, though, so management at the state level is no guarantee of better results. Still, there’s part of me that thinks anything that reduces the authority of the federal government outside the scope of its “core business,” the better off we’re likely to be in the long run. I’ve been confounded lately by the people who with one breath screech “Trump lies” and then with the next weep bitter tears that the president hasn’t issued a nation-wide order confining citizens to their homes. Personally, I get a little nervous when any president or chief executive – puts on the mantle of “emergency powers” only to be laid down again when he or she decides the crisis has passed. History tells me that rarely ends well. 

In any case, there are changes coming. I’m not smart enough to tell you exactly what they’re going to be… or where the law of unintended consequences is going to jump up and bight us in the collective ass.