(Cross-posted as a guest post at The League of Ordinary Gentlemen)
Writing 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.