Cleveland Scene Misses the Point
The Cleveland Scene, “Northeast Ohio’s Only Alternatve Newsweekly” has completely missed the point of state sovereignty with its article by David S. Bernstein, “Right Rage!” The piece offhandedly dismisses the Tenth Amendment, or at least a common-sense interpretation of it, as though its repeal were settled law. Bernstein writes,
“Based on a thoroughly rejected reading of the 10th Amendment — which states that “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 resolutions claim the federal government, in usurping powers and issuing mandates to the states, is in violation of the U.S. Constitution. They call for Congress and the president to cease and desist in those (mostly unspecified) violations. …”
The article is based upon a belief that a formal education in educational law is required in order to understand the single simple sentence that comprises the Tenth Amendment, It is a belief that summarly marginalizes any lay person who can read the Bill of Rights as well as any other person. But it does not take a law degree to understand that the tenth Amendment limits internal domestic governmance by the Federal Government, and the claim tha is does is an attempt to attenuate a vitally importane element of the Bill of Rights. The right to self government is absolute, even if generations of educated lawyers claim otherwise.
“The claims of these resolutions are indefensible on constitutional grounds. “They rest on completely untenable interpretations of the Constitution’s text, structure and history, and they proceed as though the Civil War had been won by the Confederacy,’ e-mails Laurence Tribe of Harvard Law School. “These resolutions — not to put too fine a point on it — are off the wall.’”
This argument makes the claim that a purely military victory in 1964 was the definitive event in rendering the Tenth Amendment irrelevant. It does not acknowledge the possibility that the prevailing side in that was may havee been on the correct side of the slavery issue but the wrong side of the right of states to self-government. There is a reason that state sovereignty has continued to arise as an issue from time to time over the past 140 years - because it has been wrongly interpreted during that time by the courts. The ultimate authority on the Constitution is not, as the Scene article asserts, the Supreme Court. A reading of the Nineth Amendment settles that - The Federal Government, including its Judiciary, derive their power from the Constitution, but the Constitution itself derives its power from The People, who retain it. The Federal Courts may have mis-served the people on the issue of sovereignty, but The People by law have, and will have, the last word.
See the full Cleveland Scene Article here.