Rewriting History | Culture Wars
A Response to Ian Millhiser’s Diatribe on “Tentherism.”
From the Tenth Amendment Center
•Introduction: How many ways can progressives distort and rewrite history?
Fallacy #1: “Tentherism has no basis in constitutional history or text.”
Fallacy #2: The Founding Fathers Rejected “Tetherism.”
Fallacy #3: “Tentherism” is “dangerous” and “authoritarian.”
If you read a recent piece entitled “Doomed to Repeat History” by policy analyst Ian Millhiser at the progressive think tank Center for American Progress the answer would be countless. His inaccuracies, partisan propaganda, scare tactics, and mistruths scream for a response. Of course, the statist zombies who sop up progressive talking points will probably view Millhiser’s work as the trump card against “tentherism,” but that is the principal problem. Millhiser has no idea what he is talking about (surprise!). He does not understand the objectives of the Tenth Amendment movement and his definition of “tentherism” is hardly accurate. Perhaps he doesn’t care, since demonizing those who support liberty and limited central government is what progressives do best, but Millhiser obviously needs an elementary lesson on the Tenth Amendment and American history in general.
Millhiser begins his piece by stating that “conservatives are over-reading the Tenth Amendment.” This must not be allowed to happen, he contends, because “Tentherism is dangerous,” “Tentherism has no basis in constitutional text or history,” and “Tentherism is authoritarian.” The first charge smacks of a statement Duke Law School professor Neil Siegel made in March when he called nullification “lawlessness.” From the evidence, it appears Duke Law School graduates and professors (Millhiser received his J.D. from Duke) are well versed in statist propaganda but don’t have a clue about the ratification of the Constitution or the original intent of the Tenth Amendment. The first and third can be refuted in tandem, but the second is where Millhiser ignores much of early American history and cherry picks individuals and events to fit his “tentherism” paradigm.
Fallacy #1: “Tentherism has no basis in constitutional history or text.”
When the Constitution was sent to the thirteen “SOVEREIGN AND INDEPENDENT STATES” – as Thomas Jefferson called them in the Declaration of Independence – for ratification, it faced an uphill battle in the three most powerful States at the time, New York, Massachusetts, and Virginia. Early odds had it failing in all three. A handful of opponents in each State ended up switching their votes in favor of ratification because they were guaranteed a bill of rights would be added to the Constitution. Each of these States submitted a list of recommended amendments, and at the top of each list stood a State sovereignty amendment. Massachusetts’ proposed first amendment read: “That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.” Virginia’s proposed first amendment stated: “That each state in the Union shall respectfully retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.” And New York’s proposed fifth amendment demanded that “no power shall be exercised by Congress, but such as is expressly given by this Constitution; and all others, not expressly given, shall be reserved to the respective states, to be by them exercised.” Maryland and South Carolina also submitted proposed State sovereignty amendments.
There you have it. Jefferson, a Founding Father, called the States “sovereign and independent” in America’s first State’s rights document, and five States submitted a State sovereignty amendment as a condition of ratification. The delegates were persuaded to refrain from stating amendments were a “pre-condition,” but that was the point. These ultimately became the Tenth Amendment to the Constitution. And don’t forget that North Carolina and Rhode Island did not ratify the Constitution until 1789 and 1790 respectively, thus making them independent countries for a time. That is the best expression of “tentherism.” But the Tenth Amendment tradition goes further, and it includes other members of the founding generation, many of whom were ardent Federalists.
Founding Fathers Jefferson and James Madison laid the groundwork for the Tenth Amendment movement in 1798 by authoring the Virginia and Kentucky Resolves. Madison argued in the Virginia Resolves that “the powers of the generalgovernment” result “from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact,” and are “no further valid than they are authorized by the grants enumerated in that compact….” As such, the States have the authority, under the Tenth Amendment, to “interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.” Interposition is another word for nullification, and it is based on the Tenth Amendment.
Jefferson was more direct in the Kentucky Resolves. He simply stated that the States “delegated to [the federal]government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force….” How did he come to this conclusion? It was “expressly declared by one of the amendments to the Constitution…” i.e., the Tenth Amendment. Jefferson and Madison probably knew something about American constitutional government. Of course, Millhiser illustrates Madison’s inconsistency, a trait that marked his career, but Jefferson never backed down from this position.
And it wasn’t just Jefferson and Madison who advanced the Tenth Amendment in the founding generation. Northerners used it to support their agenda against the federal government as well. Several members of the famous secessionist group called the Essex Junto and the later Hartford Convention that met during the waning months of the War of 1812 were from the founding generation. For example, George Cabot served as a delegate to the Massachusetts ratifying convention of 1788; Nathan Dane was a member of the Continental Congress; James Hillhouse served in the AmericanWar for Independence and in the United States Senate; Daniel Lyman served at the Battle of White Plains with George Washington; Samuel Ward served in the War for Independence and attended the Annapolis Convention of 1786 that sent in motion the Constitutional Convention; Timothy Pickering was United States Secretary of State and a patriot leader during the War; Fisher Ames was a member of the Massachusetts ratifying convention and served in the United States Congress; Francis Dana signed the Articles of Confederation, served in the Continental Congress and United States Congress and supported the Constitution at the Massachusetts ratifying convention; and Theophilus Parson wrote the set of proposed amendments at the Massachusetts ratifying convention in 1788 that persuaded a few opponents to support the Constitution. As with Jefferson and Madison, these men knew something about the Constitution and the Tenth Amendment, and all were Federalists!
In fact, in 1815, the Hartford Convention said the following in their report and resolutions:
That acts of Congress in violation of the Constitution are absolutely void, is an undeniable position. It does not, however, consist with the respect and forbearance due from a confederate State towards the General Government, to fly to open resistance upon every infraction of the Constitution. The mode and the energy of the opposition should always conform to the nature of the violation, the intention of its authors, the extent of the injury inflicted, the determination manifested to persist in it, and the danger of delay. But in cases of deliberate, dangerous, and palpable infractions of the Constitution, affecting the sovereignty of a State, and liberties of the people; it is not only the right but the duty of such a State to interpose its authority for their protection, in the manner best calculated to secure that end [emphasis added].
These Federalists nullified federal laws in support of the War! So, either Millhiser is ignorant of this history when he writes “Tentherism has no basis in constitutional text or history,” or he purposely ignores it. It’s probably the former. Either way, contrary to Millhiser’s claims, the Tenth Amendment was firmly entrenched in the history of the founding period and it is entirely based on the text of the Constitution. Maybe Millhiser forgets that the Tenth Amendments is part of the Constitution, and to the States who proposed it, the Amendment limited the power of the federal government to delegated items or those listed in Article 1, Section 8 of the Constitution.
via Rewriting History | Culture Wars.