Saturday, September 12, 2009

Code talker

Governor Bridgefail The evolution of Governor Bridgefail into a sturdy cracker with the street cred to run for president as a Republican is almost complete. He did it by taking up the cry of “states rights” this week in a conference call with reporters (and repeated on his radio show on Friday):

During a conference call Thursday night with reporters and conservative activists, Pawlenty said that "asserting the 10th Amendment" of the U.S. Constitution might allow Minnesota to sidestep federally imposed changes to the health care system.

Bridgefail is not serious, of course. But talking about the Tenth Amendment to the Constitution is a code for talking about states’ rights, which in turn is a way of talking about resentment about race and the animus towards federal civil rights legislation in a way that every southerner understands.

In fact, Spot recalls that Governor Bridgefail first made his current Tenth Amendment remarks this week while campaigning in Richmond, Virginia, the heart of the old Confederacy, on behalf of Bob McDonnell, a Republican candidate for governor there.

Just for good order’s sake, here’s the text of the Tenth Amendment to the Constitution:

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.

But the federal government has plenary power to adopt a health insurance program; here’s the first clause to Article I, Section 8 of the Constitution:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; [italics are Spot’s]

Here’s Professor Jack Balkin talking about Texas Governor Rick Perry’s remarks in a similar vein about health care reform and the Tenth Amendment:

Perhaps more interesting is Perry's theory of why expanded health care programs would be unconstitutional. I can think of two possibilities. Presumably the federal power to create such a program comes from the General Welfare Clause (Article I, section 8, clause 1), which gives the federal government the power to raise taxes and spend money for the general welfare. It's hard to see how the proposed health care program violates the Constitution under existing doctrine. [Jack Balkin is, by the way, boys and girls, a constitutional law professor at Yale].

Perry might claim that no state can willingly consent to participate in federal programs of the type contemplated. But that argument would probably make many other state cooperative ventures unconstitutional, including Social Security and Medicare.

Second, Perry might argue that although the federal government can spend money on some social welfare programs, after a certain point, federal expenditures become so intrusive that they dominate the regulatory playing field, effectively preventing states from creating their own independent programs and therefore this violates the Tenth Amendment. This argument seems a bit of a stretch, but if we took it seriously, it would threaten the constitutionality of a lot of federal programs, including federal grants that Texas depends on and that Texas citizens desperately need. Perry has been more than happy to take federal money for any number of federal health care programs in the past. It is not clear whether he has had a change of heart about their constitutionality as well. [italics are Spot’s]

Well, Professor, probably not. Perry, and Bridgefail, are just blowing off steam for the benefit of their political base and it is only partly related to health care. It’s a holdover from the demagoguery known as the Southern Strategy.

Congratulations, Timmy, you’re on your way; Spot knew you had it in you.


For two centuries, the South has feared a takeover by blacks or the feds. In Obama, they have both.

                                                                          Maureen Dowd

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