Tenthers, Precedent, and the Conflict of Interpretations

by Kyle Cupp

Tenthers, Precedent, and the Conflict of InterpretationsWriting at ThinkProgress, Ian Millhiser explained and ridiculed what he and others have taken to calling “tentherism,” the interpretive framework of the “tenthers.” Their label brings to mind birthers, truthers, and possibly scruffy-looking nerf herders. I’d bet a nerf or two these associations are intended. Radley Balko called the label a smear over a year ago, and I agree with him.

According to Millhiser, tenthers are lunatics who hold the radical, absurd, and false view that the Tenth Amendment to the U.S. Constitution was intended by the framers to prohibit the federal government from exercising powers not specifically delegated to it, and that therefore a number of well-established federal programs such as Medicare and Social Security are really unconstitutional. In contrast, Millhiser argues that Article I of the Constitution gives Congress broad authority to provide for the general welfare, so the Constitution doesn’t specifically need to mention healthcare or other matters of the general welfare for Congress to have the constitutional authority to address them.

I’m going to risk a little lunacy by suggesting that the “tenther” interpretation of the Tenth Amendment is not an absurd viewpoint, even if it’s not a mainstream view and runs counter to the history of established interpretations. I’m not interested here in the question of its veracity, though I note that being fridge and being false are not the same thing. My purpose is rather to explain briefly why I find both Millhiser’s interpretation and the interpretation he disparages to be legitimate interpretations despite their being in conflict. I’ll be making some points similar to those made by Balko, though I’ll be coming from a different angle.

There’s no getting around the conflict of interpretations itself. The Constitution, as a text, avails itself to multiple, conflicting interpretations. At the end of the day, its meaning isn’t certain or final, but instead in flux. And its meaning will always be fluid. While there are limits to interpretation, there’s no essential interpretation that exists in the document (or in the sky) by which its readers can judge the ultimate truth of their readings. Beyond the text, we have historical precedent, a history of official interpretations, starting from the founders themselves and going up until today. Historical precedent stands as a guide, but it can also be challenged. The officials establishing the official interpretations were and are, after all, fallible and limited human interpreters.

The question that cuts to the core is whether an interpretation has textual support. Millhiser supports his interpretation by pointing to the text, specifically Article I. Those who uphold the Tenth Amendment as a limit on federal power likewise offer textual evidence: the words of the Tenth Amendment, of course, but also the idea that the Tenth Amendment, in distinguishing between powers delegated to the federal government and powers reserved to the states and to the people, narrows the scope of Article I’s few, enumerated powers. If the federal government has power to promote the general welfare limitlessly, what sense does it make for the Constitution to reserve some powers to promote the general welfare to the states and to the people? Both interpretations offer pretty straightforward textual support. Because both interpretations are interpretations supported by the text, both are legitimate, despite their conflicting differences.

Millhiser calls the Tenth Amendment upholders absurd because their interpretation of the Constitution is at odds with precedent going back to the founders themselves. This conflict may be the case, but it doesn’t render their view absurd. It’s not absurd to dissent from and challenge the interpretations that proved victorious and became established precedent. What some of these dissenters might wish to do in the name of the Tenth Amendment may cross the line into loony land, but the act of dissent is not in itself absurd. Dissent can aid the pursuit of truth, even in law and politics. We fashion an interpretation into a grand unquestionable orthodoxy to our detriment. Interpretations should have textual support, but even the best is not the text itself.

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34 thoughts on “Tenthers, Precedent, and the Conflict of Interpretations

  1. Strictly speaking their view may not be absurd, but i don’t think you can look at the “tenther” view without seeing the clear implications of such a view. Ending the various programs, like SS or medicare, would have a huge, almost impossible to guess, affect on the country. Again that is a fair enough to thing to want even if that does put you solidly on the fringe. But simply , self-righteously claiming they have the true and correct view, that the country should be changed to suit their view, without providing some answers about how we deal with the massive consequences and accepting other people might also have valid views is impossible to take seriously.

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    • @greginak,
      Apparently, the new hotness is to dismiss one’s opponents because they aren’t doing everything simultaneously.

      Must every “tenther” legal argument also be presented along with detailed cost-benefit analysis of every change that would result from the adoption of their position? I ask because it’s assumed that everyone who advocates the application of a certain theory to a constitutional question not only believes in said theory, but also the rectitude of the policy position they’re using that theory to pursue. If you want to argue that none of their reasons are good, then you’re free to do so, but saying that their argument is absurd because they don’t give reasons is silly.

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      • @Matt, I didn’t say it was absurd because they didn’t give reasons. I said there are two reasons that make it difficult for me to take them seriously. By that i mean as thinking deeply about what the hell they are talking about.

        Firstly, while they can have whatever views they want, so can i and so can you and so can bob the bagger at the store. All of us have a say. But what i here, not only from “tenthers”, but many people on the right is that they have the correct view of the constitution so it should be made so. Well i don’t here how i and you and bob get our views on the Constitution heard and implemented. Doesn’t seem very democratic. Seems more like a messianic vision that i am just supposed to accept. If i go with the expansive reading of the General Welfare clause do i get a say? Don’t we all get to play in the constitutional sandbox?

        Second, the concrete implications of implementing a “tenther” plan would result in gigantic changes for the country. Even if implemented slowly how do people afford retirement, get medical care, etc. The most i have ever heard of how to deal with those issues is something along the lines of “FREEDOM. FREE MARKETS!!!” That does not strike me as a deeply thought out view. Why should i take a view seriously when they haven’t done the work to flesh out their vision beyond slogans. Why shouldn’t i wonder about the obvious consequences of what they advocate. Hell they should want to know the obvious consequences of their views. But they don’t, so that doesn’t seem like they care about the hard work, just pompous yelling about they have the True Vision. Beliefs lead to policy and things that effect the real world. Plenty of people have dearly held beliefs but where does it go?

        I also don’t really buy that anybody has the one true gleaming vision of the constitution, so if anybody claims to have one, i’m gonna think they are a self-righteous buffoon. This world is not some giant live action National Treasure movie where Rand Paul finds a hologram from the founders saying exactly how we should run the country now. We have a spiffy founding document but its not a detailed plan for how to deal with every issue we face.

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  2. But even if there is differing opinions of textual analysis, there is still a text and most things can be objectively resolved but not everything.

    The problem is that when over the years jurisprudence is built up that is plainly contrary to the text but still must remain in force because so much day-to-day government activity depends on it. How do you put the genie back in the bottle?

    As a practical matter this has proved to be intractable but for me the answer is pretty cleat at least conceptually: one step at a time. We don’t have to declare Social Security unconstitutional tomorrow but we can piece by piece reclaim the Constitution as it written (perhaps with amendments to legitimate politically popular programs if necessary).

    This came up last year as they were arguing the gun cases in the Supreme Court. The Supreme Court refused to overrule the Slaughter-House cases even though they are almost universally regarded as illegitimate.

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  3. My thanks to the League for accepting my guest post.

    As greginak and Koz note, the radical change that would have to occur for the country to fit a strict reading of the Tenth Amendment presents perhaps the greatest challenge to those who advocate such a reading. Given that the government (not to mention people’s lives) is not fashioned on their interpretation, they need to do much more than argue their case from an analysis of the text. They need to explain how they would prudently and justly make the necessary changes to our society.

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    • Excellent post. Two problems with Millhiser’s view are as follows:

      First, as I’ve argued previously, the general welfare clause might not do what he thinks it does, with or without the Tenth Amendment.

      And second, we should never presume that any amendment is a total nullity. I would be much more convinced by an interpretation that offered some role for the Tenth Amendment, rather than leaving it as, in effect, a placeholder.

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      • @Jason Kuznicki, “I would be much more convinced by an interpretation that offered some role for the Tenth Amendment, rather than leaving it as, in effect, a placeholder.”

        I believe the word you’re looking for here is “inkblot,” which is exactly what Milheiser, et al, would like to pretend it is.

        I particularly enjoy the part where Milheiser paints “Tentherism” as extreme because it was advocated by Madison, but not Hamilton, and Hamilton won. Because, y’know, Madison was a radical anti-Federalist whose support was entirely unnecessary for passage of the Constitution. And, of course, never mind that a big part of how the Constitution was sold and a big part of why the anti-Federalists ultimately lost was that people who wrote things like, I dunno, the Federalist Papers (written by, uhh, John Jay and two other lesser known figures whose names are irrelevant to this discussion) were successful at convincing the populace that the Constitution would not provide the federal government unfettered power.

        Who cares about any of this, though? Those facts make it harder for writers at Think Progress to be first and foremost anti-libertarian.

        Someone should make a complaint to the FTC about “Think Progress” for false advertising – nothing about that organization is about “Think” or “Progress.”

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        • @Mark Thompson, I’m trying to square this with your post a few months ago on judicial remedies for claims of actual innocence in cases of defendants found guilty in trials without procedural defects. (Being too pressed by actual work to search the archives, I apologize if I am messing the details a bit).
          Given the Constitution is at best ambiguous on the subject, what is not ambiguous at all is the process for putting laws to the test. The very programs at issue for the ‘Tenthers’ have passed said tests and therefore are deemed to meet Constitutional standards. The implication here is that the judgment of the ‘Tenthers’ should be substituted for the actual Constitutional process because, well, the text is ambiguous and the Supreme Court has handed down a decision they disagree with.
          On a related but half-snarky note, I had the displeasure of listening to Neal Boortz hold forth on this exact subject this morning. I think this is one of those situations where it’s all too easy to believe the idea can only come from cranks because only cranks are prominently promoting it.

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        • @Plinko, I’m not sure I understand what you’re getting at here.

          But to the extent you’re suggesting that “Tenthers'” Constitutional views are discredited because of existing precedent, that is certainly not the case – there’s nothing extremist whatsoever about disagreeing with Supreme Court-issued interpretations, especially to the extent those interpretations lead inexorably to the conclusion that the 10th Amendment is nothing more than an “inkblot.” Moreover, those interpretations don’t bind an individual legislator – legislators are free to interpret the Constitution as they wish in deciding how to vote on legislation.

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        • @Mark Thompson, (I think I got overly concise after accidentally losing the entire comment by hitting ‘back’ and then having to re-write. . .)
          I don’t think the view is necessarily discredited on it’s face any more than anyone can hold the view that given person incarcerated for a crime is innocent.
          The question is what are the remedies?If I remember correctly you advocated at the time that the judicial system can’t take up convictions that result from full and fair trials because the defendant claims the decision is wrong which is completely separate from the question of whether or not they actually committed the crime in question. For the purposes of fairness and justice, the tests have been passed. How is that different than the determining that the ‘Tenther’ view requires the Supreme Court to re-test precedent because someone takes the view that it was decided wrongly? The tests have been fairly taken and passed.
          Apologies if I’m applying the logic incorrectly.

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        • @Plinko, I think I understand you now. The trouble is that the logic doesn’t translate well. In order for the logic to translate appropriately, you’d need to have some sort of Constitutional (or arguably statutory, though I doubt it) provision saying that once a precedent or interpretation had been established, it could not be overturned or even challenged more than x years after that establishment. Even then, there’d still be pretty important differences in analysis due to the differences between a finding of law (ie, an interpretation) and a finding of fact, amongst other things.

          It’s probably also worth mentioning that I’m not sure how much I stand by that earlier post anymore. I took some heat for it from one or two other sites, and I found a lot of that criticism to be pretty valid.

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      • @Jason Kuznicki, I agree, in order for the integrity of the entire document to hold and remain intact, certain lines, no matter how contrary to current jurisprudence, must have room in the SCOTUS’ overall interpretation of the document.

        If certain parts were to just be ignored, it would tend to make the entire document arbitrary.

        It’s like literary interpretation. No matter how bothersome certain parts of the text are for one’s theory of it’s meaning, you have to find a place for them or your theory is just cherry picking and incomplete.

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        • @E.C. Gach,

          You should see if you can get a copy of Randy Barnett’s book Restoring the Lost Constitution and read his chapter on constituional construction. That’s what tends to fall by the wayside in these conversations.

          Interpretation of the text is about ascertaining its meaning. Construction is about creating the legal rules. Too many people conflate the two concepts, especially in the comments section of this blog.

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        • @E.C. Gach, Thanks for the suggestion. Peering into chapter five, I can fully appreciate the distinction he draws between interpretation and construction. On page 125 though it seems like Barnett is agrees that the “language’s” (i.e. text’s) role is to establish a frame, within which, construction takes place. Having only briefly skimmed I could be understanding him incorrectly. But it seems like even within his framework, the tenth amendment would have to at least be accounted for, whether or not it is finally dismissed.

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  4. I’m having a bit of a deja vu moment:

    http://www.ordinary-gentlemen.com/2009/09/general-welfare/

    I think I’ve already said everything I can about Ian Millhiser’s shoddy approach to this subject. Yes, there were competing interpretations of the concept of general welfare and yes, the Hamiltonian view ultimately became the mainstream legal doctrine. However, for almost 150 years, the courts took a Madisonian approach to the federal government’s powers (hence, the number of New Deal programs that were struck down prior to 1937). The regulation of commerce amongst the several state was limited to commerce and the networks of interstate trade, and only when wholly intrastate business were shown to have a direct impact on interstate commerce (i.e. the Chicago stockyards) did intrastate commerce come under federal jurisdiction.

    This is what most amuses me about discussing constitutional interpretation with liberals: they can point to the General Welfare Clause, embrace the Hamiltonian approach and claim to have integrity to the text without ever addressing why, prior to 1937, the courts took the opposite approach. By now, it’s almost a waste of time having that discussion because what I noticed in one of the threads Jason wrote about health insurance, any normative of constitutional interpretation that goes outside of the “If I like something, it’s constitutional” mindset, it’s dismissed as lunacy.

    I don’t have the time or patience to deal with those kinds of twits.

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  5. E.C. Gach,

    I think you’re right, but if I recall he also addresses his theory of interpretation against modern doctrine in a way to not suggest that we just blow up over seventy years of constitutional jurisprudence. I don’t recall how he does that specifically since it’s been a long time since I read it, but I’m pretty sure he covers that.

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  6. Interesting discussion. But these, for me at least, always lead back to how interesting discussion the constitution is and how useless much of the discussion is for practical purposes. As i think somebody noted, for many people if they like it then its constitutional. Its just as fair to say that for some people if they don’t like it, then it isn’t constitutional. There are many people who want to have Holy Words with which to run the country. All we have to do is follow the sacred text and all will be well. But of course there is no one true reading of the words, so where does that leave us. At some point we have to make our points and ideas and government based on our thoughts and beliefs not just on quote mining the sainted founders.

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  7. “At some point we have to make our points and ideas and government based on our thoughts and beliefs not just on quote mining the sainted founders.”

    I agree. And it would be awesome if instead of relying on a rigged reading of the constitution (i.e. loading the court with one’s preferred justices) it would be a lot better if everyone preferred to work through these issues via constitutional amendments.

    While there is plenty of wiggle room with which to treat everything in the Constitution, when public opinion, legal precedent, and political institutions have all moved to a different place, making certain amendments non-binding for practical purposes, it does seem like there needs to be some book keeping, to the effect that, if the Tenth Amendment really is an anachronism, then it needs to be stricken from the document, rather than mercifully ignored.

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    • @E.C. Gach,

      If the choice is between ignoring or striking the Tenth Amendment, I’d lean toward striking it, as that course would be a bit more clear and honest about where we stand. However, I’d much rather we have a serious discussion as a nation about what the Tenth Amendment means today and how it should be understood and applied. The basic principle of the amendment – subsidiarity – is a good principle to have clearly expressed in the Constitution, even if the interpretations of it differ and conflict.

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      • @Kyle Cupp, I agree about needing an open and honest discussion about the Tenth Amendment’s place in 21st century America. And if put between a rock and a hard place, that is, between striking it or ignoring it, and in ignoring it, undermining the entire document’s forcefulness, the prospect of it being stricken seems like a first step toward provoking such a discussion.

        The Tenth Amendment seems extremely hard to tackle, at least to me, because of how convoluted federalism has become, and the need to entangle powers left up to the state, and those left up to the people.

        I’m curious what your strategy would be for unpacking this. What primacy should states have in this century? And why should one prefer federalism at the level of states as oppose to municipalities?

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        • @E.C. Gach,

          Good question. I don’t have a complete strategy worked out, but I would begin by assessing the structures of power, not only in the U.S., but in the world. We’re becoming ever more globalized and interconnected across the planet. Yet we’re still a sovereign nation, of course. So, using the principle of subsidiarity, an understanding of how the world operates, and the basic structures established by the Constitution, I’d say assign governmental tasks to levels appropriate to each task. Some matters are best handled at the state level, others at the national level, and still others at the international level. The key, I think, is being clear about who does what and why. When I say we need a discussion, I really mean that we need to sit down and really consider everything our government currently does, whether or not it should do it, whether or not new powers should be assigned to it, and where each power should be designated.

          Seems to me that the Tenth Amendment was designed to establish such clarity about who does what, but the history of interpretation (and perhaps its phrasing) has left its meaning, and therefore the correct designation of powers, ambiguous. I doubt it’s possible to get rid of that ambiguity, though, as even the most clear texts can be interpreted in different ways. So what I think is key remains an unsolved problem.

          Besides, who really is going to lead this discussion? Fox News? CNN? The President? I’m not hopeful. And then there’s the unfortunate state of affairs you discussed in your post.

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  8. I do find this business of politics by textual exegesis quite odd. I’m sure its a cultural thing, but the UK gets on just fine without a 300 year old document dictating what the government can and cannot do. Sometimes the government even gives powers away to other people. Shocking, I know.

    It seems inevitable that where people’s principals vary – especially if they vary only by small differences from a classical liberal root – textual interpretation is going to be biased towards finding things in the constitution that you want to find. Given that, why not just talk about the difference in principals rather than arguing from the authority of a 300 year old document written by people who could never have anticipated the existence of social security?

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    • @Simon K, Well yeah exactly correct. Its a quasi-religious desire to be true to God’s disciples, our founding fathers. While i know many people who take the Constitution seriously are not religious, it seems like an apt analogy. Even the best first principles are airy ideals, how to apply them and how well they can actually be implemented are vast challenges. Focusing on the constitution seems to obviate the need for talking about consequences and what works. And i’ve never quite understood how the varied views on the meaning of the Constitution are supposed to mesh. The strict adherents seem to feel it should just be done their way.

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  9. There’s no getting around the conflict of interpretations itself. The Constitution, as a text, avails itself to multiple, conflicting interpretations. At the end of the day, its meaning isn’t certain or final, but instead in flux. And its meaning will always be fluid. While there are limits to interpretation, there’s no essential interpretation that exists in the document (or in the sky) by which its readers can judge the ultimate truth of their readings. Beyond the text, we have historical precedent, a history of official interpretations, starting from the founders themselves and going up until today. Historical precedent stands as a guide, but it can also be challenged. The officials establishing the official interpretations were and are, after all, fallible and limited human interpreters.

    Just want to point out that this paragraph was written here at LoOG and no one seems to be challenging it. I assume that means it is broadly agreed to. The only thing I argued in the other thread is that the implication of accepting that we will have falliable (and inevitably political) official interpreters of the Constitution, and that their interpretations are indeed official and legitimate, is that the Constitution’s meaning will (a) be determined by their interpretations, and (b) will change over time as new interpreters replace ols, and indeed as viewpoints shift over time. As Kyle noted, there is no getting around this – this is the system we have. This doesn’t mean that whatever we like is constitutional, but it does mean that what the official interpreters say is constitutional, is, at least for the moment. “Ascertaining the meaning” is a concept that quite clearly begs the question here: it’s just a label for the overall endeavor we’re engaged in, not a direction as to how best to do it. Anyone can make a claim to have correctly ascertained “the meaning” of the Constitution; we’re still stuck with determining how it is applied in practice, and for that we need officials empowered to enforce it. That meaning is far more meaningful than the myriad possible views of what the Constitution means in an absolute, Platonic way — not that the latter isn’t important, precisely because such debates do inform the official interpreters’ views. It’s just that it’s absurd to make absolute claims that one’s view of the meaning of the text is clearly correct while others’ are clearly incorrect. People cite the Hamiltonian view that prevailed immediately upon ratification not to say that it is obviously correct and the Madisonian view was mistaken, but rather to point out that the Founders were just as beset with the problem of meaning (and I’d say that it is a problem of settlement of public meaning of a document as much as interpretation of text per se that we have to deal with here) as we are, so to appeal to the Founders’ understanding of “the meaning” of the Constitution doesn’t settle the matter any more than simply asserting that one’s own interpretation is just simply a correct ascertainment of “the meaning” of the Constitution. It’s precisely this approach that allows one to deal with changes in meaning over time: when New Deal programs were allowed, it’s not that an incorrect mode of interpretation was replaced with the correct one — that is precisely the framework of interpretation that it is so clear can’t be sustained over the long term. It’s that because the law serves the people, the meaning of the Constitution changes over time. This is simply an observable truth; the only question is whether we feel the need to rail against the violence it does to the cause of absolutel meaning in text (which seems to me a particularly ill-fated enterprise in a case of a text with scores of authors that was put into effect by the actions of thousands of citizens, each with legitimate views about what its meaning should come to be understood to be, but to each his own…) Critical judgement about the textual correctness of prevailing official interpretations are not in any way compulsory, though they are certainly legitimate; what is compulsory is that we have the rule of law, and in order to have the rule of law, the law must be applied by officials empowered to interpret it.

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