Reclaiming the Constitution - Part 1 (Issue #485)

Two distinguished scholars have written an essay that should alarm Americans, but also spur them to action. Ted Cruz served as Solicitor General for the State of Texas—the chief appellate lawyer for the State— from 2003 to 2008. He was the first Hispanic Solicitor General in Texas, and when appointed, was the youngest Solicitor General in the United States. He was named by Texas Lawyer magazine as one of the “25 Greatest Texas Lawyers of the Past Quarter Century,” by American Lawyer magazine as one of the “50 Best Litigators under 45 in America,” and by National Law Journal as one of the “50 Most Influential Minority Lawyers in America.” A graduate of Princeton University and Harvard Law School, he previously served as a law clerk to Chief Justice William H. Rehnquist on the U.S. Supreme Court; as Domestic Policy Advisor to President George W. Bush on the 2000 Bush-Cheney Campaign; and as Associate Deputy Attorney General at the U.S. Department of Justice.




Mario Loyola began his career in corporate finance law. Since 2003, he has focused on public policy, dividing his time between government service and research and writing at prominent policy institutes. He served in the Pentagon as a special assistant to the Under Secretary of Defense for Policy, and on Capitol Hill as counsel for foreign and defense affairs to the U.S. Senate Republican Policy Committee. He has also worked as a state policy advisor for Senator Kay Bailey Hutchison and written extensively for national and international publications, including features for National Review and The Weekly Standard, and op-eds in The Wall Street Journal.



The two scholars combined research and writing talent in an essay they entitle, “Reclaiming the Constitution: Towards an Agenda for State Action” produced for the Center for Tenth Amendment Studies, part of the Texas Public Policy Foundation—the state’s most influential free-market think tank. Given their previous employ with some notable and long-serving Republicans, their assessment is even more striking because it implicates both political parties. To the extent that both political parties have overseen and been complicit in the massive growth and rise in power of the federal government at the expense of States and individual rights, then both parties are responsible for undermining the Constitution and laying down hard pavement on the road to serfdom.



Indeed, the steady expansion of the federal government since the early 20th century has arrived at a crisis point today. The federal government is pushing further and further into areas of traditional state governance—and intruding deeper into our lives. This threat to liberty—one that James Madison thought the several States would be strong enough to resist—is now apparent to millions of Americans, many of whom are participating in the Tea Party movement. Assaults on the constitutional constraints meant to limit federal power, combined with the relentless expansion of the federal bureaucracy, has led to a steady erosion of the constitutional constraints on federal power—raising the very dangers to self-government and individual liberty that the Framers feared might lead to tyranny. Though the Federalists—advocates of a strong national government—expected that the States would retain more than enough power and scope to enforce the constitutional limitations on the federal government, the dawn of the industrial age, and America’s rise to Great Power status abroad by the start of the 20th century opened the door to an era of steadily expanding federal power.



For more than a hundred years, the federal government has been expanding its power and reach. The steady concentration of power in Washington has been accompanied by a steady intrusion into areas of state authority that the Framers assumed the federal government would never be involved in. In the Framers’ conception of democracy, state based self-government and individual liberty went hand in hand. It was for this reason that they insisted on a federal government of strictly limited powers. They enshrined this ideal in the Tenth Amendment of the Constitution: “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.”



Today the expansion of the federal government proceeds at an unprecedented pace. The last decade has witnessed an expansion of federal power virtually on a par with the trillions of dollars in federal debt added over the same period. The current administration has launched what many Americans see as an inevitable federal takeover of health care. It has undertaken environmental regulatory actions of historic sweep, seeking to regulate manifold areas of traditional state jurisdiction, and smothering less-favored industries in regulatory uncertainty. It has unleashed the greatest explosion in federal spending and borrowing in our history. These policies not only endanger our economic future—they erode the constitutional constraints that were meant to shield local self-government and individual liberty from the dangerous accumulation of power in Washington. That is why the balance between state and federal powers matters. That is why the Tenth Amendment matters.



The Tenth Amendment, however, is much more than a legal construct. It is an expression of the American tradition of self-governance. The propensity to self-organize spontaneously at the local level to solve problems that had been observed by Alexis de Tocqueville—and felt so painfully by the British Army—was essential to American democracy. The Constitution had been designed to protect it, not supplant it. And while a respect and deference to state authority both predated and was implied in the Constitution itself, in the end the Tenth Amendment was deemed necessary to assure that self-governance would never give way to tyranny. In this sense, the Tenth Amendment, coming at the end of the Bill of Rights, was something of a summation of the Framers’ whole notion of American democratic republicanism—and a salutary warning that those powers granted to the federal government needed to be kept strictly limited within the Constitution’s constraints, or else the States and individuals who formed the Union, and the Union itself, would be imperiled. Today it is imperative that States begin to take action, in order to stop federal overreach and to restore the Constitution’s limits on government power. We must, in short, start reclaiming the Constitution quickly, if we would remain a free people.