FIRST IT IS THE BIRTHERS, AND NOW IT IS THE TENTHERS

The Right's 'Tenther' Constitution

In a recent Fox News interview, Rep. Michele Bachmann (R-MN) accused health care reform supporters of "forg[etting] what the Constitution says." Sen. Jim DeMint (R-SC), who once called for his Party to defeat health reform because it will "break" President Obama, claimed that health reform violates the Tenth Amendment and urged state legislators and governors to "champion individual freedom" by resisting the bill. Numerous state lawmakers -- including secessionist Texas Gov. Rick Perry (R) -- have struck a similar tone, endorsing "state sovereignty resolutions" that demand the federal government "cease and desist" enforcing many laws with which conservatives disagree. (Emboldened by Perry's hardline stance, Texas "tenthers" held a pro-secession rally at the state capital yesterday, demanding that their political opponents "go back to the U.S. where you belong.") Indeed, while "birther" conspiracy theorists make increasingly outlandish attempts to dismantle President Obama's legitimacy, "tenther" constitutionalists like Bachmann, DeMint, and Perry hope to dismantle an entire century's worth of progressive legislation.

THE 'TENTHER' AGENDA: In a nutshell, tenthers believe that President Franklin Delano Roosevelt led an illegal coup against the U.S. Constitution, exploiting the passions of the Depression Era to expand federal power to unconstitutional levels. Killing health reform is only the beginning of their agenda. Under the tenther constitution, Medicare, Medicaid, Social Security, federal education funding, the Veterans Affairs health system and the G.I. Bill are all illegal. The minimum wage, the requirement that employers pay overtime wages, and the ban on child labor are all beyond Congress' power to enact, and the federal ban on whites-only lunch counters is an unlawful encroachment on local business. Indeed, nearly every single law that Americans cherish -- from laws protecting workers' right to organize to laws forbidding race and gender discrimination -- could be eliminated overnight if the tenther constitution ever became law. One prominent tenther, a Texas official charged with rewriting that state's public school textbooks, even declared the federal highway system to be unconstitutional.

DISTORTING THE DOCUMENT: Tenthers derive their narrow vision of the Constitution from a strained reading of the Tenth Amendment, which provides that the Constitution contains an itemized list of federal powers and anything not contained in that list is beyond Congress' authority. In the tenthers' eyes, Congress' powers must all be read too narrowly to allow most federal statutes to exist. However, the tenther constitution bears little resemblance to the words of the document itself. Contrary to tenther claims that federal spending programs like Medicare or Social Security are unconstitutional, Article I of the Constitution empowers Congress to "lay and collect taxes" and to "provide for...the general welfare of the United States," which unambiguously authorizes it to spend money in ways that benefit the nation. Similarly, Congress' broad authority to enact regulatory schemes that "substantially affect interstate commerce" easily encompasses laws like the federal minimum wage and the requirement that businesses do not discriminate on the basis of race. As Roosevelt chided tenther-like conservatives from his era, "The Constitution of 1787 did not make our democracy impotent."

A LEGACY OF RADICALISM: Sadly, tentherism's assault on democracy is nothing new; indeed, retreat to outlandish constitutional theories is a favorite tactic of the right during times of historic upheaval. Tenther "state sovereignty resolutions" are little more than new names for the "interposition resolutions" enacted by southern states in the immediate wake of Brown v. Board of Education, which claimed that the federal government exceeded its constitutional authority when it extended the Constitution's promise of "equal protection of the laws" to the American South. Tenther claims that health reform is unconstitutional -- because the Constitution does not specifically use the words "health care" -- echo the infamous Southern Manifesto's argument that Brown was wrong because the "Constitution does not mention education." Much of the intellectual framework for tenther assaults on economic regulation comes from discredited Depression-era Supreme Court decisions that struck down essential provisions of the New Deal on the grounds that they exceeded Congress' lawful authority. Indeed, conservatives even justified the greatest act of treason in American history, the Civil War, by claiming that that the Constitution permits each state to leave the union at will. Now that America is slowly emerging from its most recent crisis, tenthers once again hope to exploit the nation's fears to fuel a radical constitutional agenda.

-- americanprogressaction.org

Amendment X

The Tenth Amendment

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.