On an episode of his Cavuto on Business show on the Fox Business Network last week, Neil Cavuto spoke with former governor and presidential candidate Gary Johnson. Cavuto noted, as was sent to the media in a recent Tenth Amendment Center press release, that states are considering over 200 bills to push back against federal power. He asked Johnson why so many states are rebelling against the federal government and why that number has increased so dramatically in recent years.
Johnson could easily have answered Cavuto’s query with, “Because the Tenth Amendment Center exists.” Instead he spoke more generally of the federal government’s increasing attempts to regulate all areas of American life with legislation ranging from No Child Left Behind to Obamacare.
As Cavuto groped for the boundaries of how far the states can take their opposition – for instance, can they oppose attempts to nationalize the issue of vaccination? – Cavuto asked, “Where do you draw the line between what the federal government can do and what the state governments should do?” Now certainly, this is an appropriate question. But it’s also one with a strikingly simple answer.
The answer, Neil, is that line has already been drawn. It was drawn in 1787 when the Constitution was written. It was drawn in 1788 and 1789 when the states ratified the Constitution. It was drawn in 1791 when the Bill of Rights, particularly the Tenth Amendment, was ratified. The line is this: if the Constitution does not specifically authorize the federal government to take an action, it cannot legally do so. How far the states can go is dictated by the text of the Tenth Amendment, which says that any power not specifically delegated to the federal government remains with the states.
It’s amazing that so many in the media, especially the so-called conservative media, don’t understand this. Sure, the correct understanding of the rights and powers of the states was neglected for decades, but the delineation of such powers is right there in the Constitution.
Without stating his level of agreement with it, Cavuto referenced the opinion that, “it’s dangerous when the states make their own rules…” and create a lack of uniformity of laws across the country. The Tenth Amendment Center’s counterpoint to this is that it is exponentially more dangerous for the federal government to ignore restrictions on its own authority. The founding generation understood that the people of the United States were nonuniform in their cultures, traditions and desires – and they remain so.
Because of this, for one government to apply a wide swath of uniform laws on a diverse group of people would be the very definition of arbitrary government. This, combined with the tendency of centralized power to become increasingly oppressive, is why the Constitution allows a wide range of authority for the states, but a strictly limited one for the federal government.
This line between state and federal powers is absolutely clear. It remains in the same place it was two and a quarter centuries ago.