Commentary, Law

Jim Gray: With Republicans in Power, Liberals Are Rediscovering the 10th Amendment

Harsh reality: most politicians (and voters) are outcome oriented, which means that they often first make up their minds about what their goals are and then try thereafter to justify those outcomes with doctrinal support.

Accordingly, when politicians are out of power nationally, they tend to support the 10th Amendment, and when they are in power, they tend to ignore it. The 10th Amendment expressly provides that all powers not delegated by the Constitution to the federal government are reserved to the States and to the People.

With Republicans in control, it’s Democrats’ turn to support the 10th Amendment

For example, conservatives argued during the Clinton Administration that the federal government could not command the states to enforce a federal regulatory gun control program. The feds could try to enforce it themselves, if they so choose, but the states could not be commanded to cooperate. (See the 1997 United States Supreme case of Printz v. United States.)

But now that conservatives are in power, liberals are now “seeing the light” and arguing that the 10th Amendment supports their establishment of so-called “sanctuary cities,” where the feds cannot command state and local governments to cooperate with the federal government’s immigration programs. Liberty is consistent and agrees with both arguments.

In fact, Liberty would expand them to cover the federal government’s inability to command state and local governments to help enforce federal marijuana laws. The Supreme Court has made it clear that federal law can prohibit marijuana under the commerce clause, under Raich v. Ashcroft, but it still cannot command the states to help enforce those federal laws.

As Justice Scalia said in Printz, the federal commandeering of state governments goes against the text, structure and history of the Constitution. So if we are to be true to our Constitution and to our principles, we will enforce the provisions of the 10th Amendment regardless of the outcome.

The Founders saw the 10th Amendment as one of the most important

Without question our Founding Fathers disagreed upon many things, and often were forced to compromise on many of them. But virtually without exception, each delegate at the 1787 Constitutional Convention agreed that the most important duty of government was to protect individual liberties from their encroachment by government.

The second-most important was to keep us safe.

As a result, most of them felt that the Constitution was so clear on this point that the 10th Amendment was unnecessary because it was redundant.

That doesn’t mean that the federal government cannot attempt to enforce its laws on its own. But it does mean that the states cannot be commanded to enforce laws with which they do not agree.

(New York-area Muslims and local immigration activists participate in a prayer and rally against President Donald Trump’s immigration policies on January 27, 2017, in New York City. President Trump has taken actions since the inauguration to start the building of a long promised wall along the Mexican border and to cut federal grants for immigrant protecting “sanctuary cities.” Photo by Spencer Platt/Getty Images.)

Judge James P. Gray (Ret.) was a judge on the Superior Court of Orange County, California for 25 years, and was the running mate of Gary Johnson in the 2012 presidential contest, as well as the Libertarian Party’s 2004 candidate for the United States Senate in California. The author of multiple books and a play, he is a critic of current American drug laws.

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