by David Bernstein, Volokh.com
Doug Kendall of the Constitutional Accountability Center writes: “The Tenth Amendment, like all other Amendments, is a binding part of the Constitution that should be fully respected…. [But w]hen the states ratified the Constitution, they renounced their status as fully-independent sovereigns and endowed the federal government with enumerated but substantial powers.”
Kendall is correct. Anyone, tea partier or not, who claims that the states retain full “sovereignty” after 1789 doesn’t know what he is talking about.
Kendall’s next sentence, however, doesn’t follow at all: “The Tenth Amendment does not give tea partiers, or anyone else, a constitutional basis for rolling back critical laws that protect Americans’ health, safety, and retirement security.”
Through the New Deal period, it was accepted that the states did retain an important element of sovereign power inherited from the British Parliament, the “police power.” The scope of the police power was subject to much debate, but it was typically thought to at least conclude the power to protect and promote state citizen’s health, safety, and morals. Progressive types argued that promoting the public’s “welfare” was also part of the police power.Details