I found a recent comment posted on my Herald-Leader op-ed addressing the constitutionality of the federal insurance mandate illustrative.
Bill Adkins writes, “The 10th Amendment question was decidedly resolved by the Civil War. And Supreme Court precedent supports the authority of the federal gov’t in this instance and so many others.”
I’ve already addressed the notion that the court stands as final arbiter of what is or isn’t constitutional here.
So let’s look at the first sentence in Bill’s statement – the Civil War resolved the 10th Amendment question.
Hmmm. What question was that, Bill? And what exactly was the answer?
Adkins’ statement is a lot like a log infested with termites. It looks solid on the outside, but lacks any inner support. In fact, I can’t find any logic whatsoever in Bill’s assertion.
If the Civil War decided anything in terms of state sovereignty, it was simply that the federal government can impose its will at the barrel of a gun. Even to say the Civil War settled the issue of whether states could or could not secede is a stretch. The war didn’t determine anything in a legal or philosophical sense. It merely ended with the federal government imposing its will on southern states by force.
The Civil War did not change the Constitution. The fact that the federal armies won the war did nothing to alter its meaning. Logic bears this out. If the mere act of winning the war functionally changed the meaning of the Constitution, then why was it necessary to pass the 13th Amendment in order to abolish slavery? Why wasn’t Lincoln’s emancipation proclamation sufficient? If the power of the federal victory nullified a principle in the Bill of Rights, would it not have also abolished slavery?
The 10th Amendment simply states:
“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.”
There isn’t, nor was there, any question as to what this means. The framers of the Constitution make its meaning clear. The Civil War didn’t resolve “the question” because one never did exist.
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