Why Libertarians Have a Love-hate Relationship With the 10th Amendment

Libertarians just want to get along. They don't want you messing with them, and they won't mess with you. More than anything else, they don't want some suffocating government telling people what they can or cannot do.

That is the heart of the Libertarian Party pitch. Those ideas are neither some crazy everybody-hold-hands socialist dream or some wild-eyed, anarchist, down-with-the-feds manifesto. Libertarians just want everybody to enjoy the liberty to do what they want to do as long as it doesn't infringe on anyone else's rights. And, again, they don't want anybody, especially the federal government, messing with that.

Of course, if life were only that simple.

In their crusade, many Libertarians — like every other political party in America, Libertarians don't agree 100 percent on everything — point to the 10th Amendment as the constitutional basis for their way of thinking. Added as part of the Bill of Rights in 1789, the 10th Amendment is somewhat striking in its simplicity. It goes like this:

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.

Of course, if the Constitution were only that simple.

Libertarians and the 10th Amendment

The 10th Amendment, even in those 28 short words, four clauses, three commas and single period, is open to a great deal of interpretation. But let's, for the moment, take it literally: If the Constitution doesn't spell out a certain power or powers to the federal government (the "United States"), those powers belong to the states or the people.

"They [the constitutional framers] didn't want the federal government to be huge," says Honor "Mimi" Robson, the chair of the Libertarian Party of California. "They didn't want the federal government to be involved in the citizens' day-to-day lives."

Some people, both in and out of the Libertarian Party, view the 10th Amendment very narrowly. They contend that many powers that the federal government now claims — things represented by, for example, the U.S. Department of Education, or even Supreme Court decisions that allow for things like same-sex marriage throughout the U.S. — should not be held by the feds. The U.S. government is infringing on the states' rights to decide how children are taught in their state, for example, or whether same-sex marriage should be allowed. That should be up to the states, they say. Those are states' rights.

Now, you might argue, government is government, whether it's at the state or federal level (or both). And multiple levels of government, some absolutely will argue, is bad.

But most out there understand the need for some government. And government at the state level, close to home, the argument goes, is better than edicts being flung from the feds in Washington. From the Tenth Amendment Center:

People arguably have more control and influence over smaller governmental units. Even if they don't, multiple small power centers make it possible to flee from particularly oppressive jurisdictions and create an environment of "competition" between governments.

Few would suggest that no federal government is needed, either. And, indeed, the Constitution enumerates certain powers solely to the U.S. government, including the ability to tax, to provide for the national defense, to regulate commerce (both within the states and internationally), and to determine who becomes a citizen.

But many Libertarians, and many others, argue that the U.S. government has vastly overstepped those powers enumerated to it and, in doing so, has trampled on the 10th Amendment. The disagreements, inside the Libertarian Party and out of it, are exactly where the line between federal rights and states' rights should be drawn.

"If you look at states' rights as allowing states to do bad things to people to take away their rights, that is absolutely not Libertarian," Robson says. She points to the 1967 Supreme Court case Loving v. Virginia, which held that a ban on interracial marriage by the state of Virginia violated the 14th Amendment's Equal Protection Clause. That case provided, in effect, a new enumerated power for the federal government; to protect individuals from states. "States shouldn't be able to say that people who love each other can't get married. Same thing with same-sex marriage.

"I don't believe that that was ever intended to allow states to do bad things to infringe on people's rights just because it's more of a local level," Robson says. "I think that's where some people get kind of confused, in my opinion."

How the Courts View the 10th Amendment

For almost 200 years, the 10th Amendment and its apparently straightforward language was viewed very narrowly. According to the National Constitution Center, when legal questions were raised about the use of some federal power, they didn't center on whether the use of the power was violating someone's rights, but rather if the federal government had the right to use the power in the first place. Was it something granted to the government under the Constitution? If not, it's the states' and the people's.

That has changed, though, in the past several decades as the courts have granted more power to the federal government, powers that are often argued to be implied by the Constitution, if not enumerated. The 10th, now, is regularly rolled out as a defense against an overreaching U.S. government. Some used it as an argument against "Obamacare." Some are citing it as a reason to block President Donald Trump's move to stop a California law declaring it a "sanctuary state."

The struggle, in many ways, is exactly what the writers of the 10th Amendment saw coming. They tried to spell things out. But we're still trying to figure out what they really meant in those 28 simple words.

"I think what we all agree on is that we're looking for a society where there's no government infringement of personal rights. That's what we're looking for," Robson says. She's talking about Libertarians, though she could be speaking for many others. "We want freedom and we want no government coercion, and I believe states can be just as coercive as the federal government when it comes to individual liberties.

"It's the nuances that we aren't quite clear on. To use a train analogy, we're all on this train that's going from point A — which is California right now, which is basically socialism — to point B or C or X or Y or Z, which is complete non-government intervention, non-government. There's going to be people that get off the train at different places. I'm not going to be on the train all the way to the end, to pure anarchy. But you know what? Right now, we're up on blocks. We're nowhere close. We have to agree on what we agree on and move forward."

Now That's Interesting

Some writers of the Bill of Rights originally objected to the 10th Amendment, and the Bill of Rights as a whole, as superfluous. Why have an amendment that the federal government had only certain powers when those certain powers were clearly spelled out in Article 1 of the Constitution? Objections were finally soothed, though, with the inclusion of the 10th and its strict language that declares, once and for all, that whatever powers not granted in the Constitution are not there for the federal government's taking.