Tuesday, April 14, 2020

Donald Trump vs. The Tenth Amendment and Why I Support Trump Today

The Left is in an uproar over the fact that at Monday's White House press conference President Trump said he had full power over when the country could open up again for business.

The New York Times reported Trump's comments this way:
“The president of the United States calls the shots,” Mr. Trump said. “They can’t do anything without the approval of the president of the United States.”...

Asked what provisions of the Constitution gave him the power to override the states if they wanted to remain closed, he said, “Numerous provisions,” without naming any.

His daylong assertions of power appeared to have little effect on the governors.

“Well, seeing as we had the responsibility for closing the state down,” Gov. Tom Wolf of Pennsylvania said, “I think we probably have the primary responsibility for opening it up.”...

President Trump is in a rush to lift restrictions, convinced that the move will rocket the economy out of a deep recession.
But it is not only the Left that is in an uproar about Trump's comment, the libertarian-leaning Tenth Amendment Center came out against Trump: 
Indeed. the Tenth Amendment is just one sentence which in its entirety reads:
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 I support Trump on this one. This is so because I am not a constitutionalist. I am in favor of freedom. I see no need for governments, national or local, to rule on matters. I prefer free exchange and respect for private property. I support the private property society.

I consider both national and local governments in their structure as obstacles to freedom. Thus, I support neither fully. My support is totally on a case-by-case basis depending on which ruling body will provide me the most freedom.

It appears that Trump is more likely to open the country up sooner than some state governors thus I support his effort.

I hasten to add, I am not doing this on some legal grounds or principles but on a realpolitik position.

As a libertarian and in particular a PPS libertarian, I will not attempt some legal nicety to base my claim on. I will simply cheer him on in this particular effort and argue the point that the economy should be opened up on free market and free exchange principles. That is all. It is possible I could turn on him on the next prominent issue.

Thus, I will not take the Tenth Amendment Center position and attack Trump on this. I don't care about the Constitution. I am in favor of freedom.



  1. I agree with RW on this one; the key objective is freedom, not constitutional compliance.

    But I found this laughable: "Asked what provisions of the Constitution gave him the power to override the states if they wanted to remain closed..." Since when has anyone with a government-approved education cared about compliance with the words of the Constitution? They never seem to hold legislation to this standard.

    1. This should be seized upon. Turn this question to anyone resorting to the constitution now but conveniently ignoring it elsewhere.

    2. It's a good thing that someone asked because hopefully more people will start reading or re-reading the US constitution, the the real debate can start once everyone is on the same page.

  2. Bob, great analysis. Remove the restrictions by any means necessary!

  3. Libertarian “constitutionalists” routinely ignore the concurring opinion of Clarence Thomas in the Chicago guns rights case, McDonald v. Chicago, 561 U.S. 742 (2010).


    Thomas explains that Section 1 of the 14th Amendment prohibits states from abridging the “privileges or immunities” of ALL citizens and that “privileges or immunities” is just another way of saying those “inalienable rights” that preceded the establishment of the government. These rights include the right to own and control property, the right to bear arms and the right to have access to the courts. I’m not arguing that the Constitution is the sources our rights, but that this clause and understanding can be used as an alternative defense against someone attacking us based upon the Constitution. Combine the 10th Amendment with this clause. The 10th Amendment is based upon the fact that the Feds have a very limited list of allowed activities. Section 1 of the 14th Amendment should be read to immunize citizens against oppression by the state governments and therefore it reduces the scope of the states' allowed activities. Without this argument, the states appear to have unlimited authority pursuant to the 10th Amendment advocates. Call them out on it. Read the entire Thomas concurrence. He claims his reading of the clause is what proponents of the clause in Congress understood it to mean. According to Section 5, Congress has the authority to pass laws to enforce the PI clause. But it seems to me to be a free standing/self enforcing law of the land.

    "Section 1
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Section 5
    The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

    Justice Thomas, concurring in part and concurring in the judgment.
    Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.

    1. Thanks for these comments (Bob Roddis).


    2. The old doctrine of incorporation? The founders railed against it. Interesting debate.

      McClanahan discussed it here:

    3. If one were going to enlist the help of the Fourteenth Amendment, then one first has to establish that it was validly passed. Moreover, under the compact theory of the US, what SCOTUS says the Constitution means is not binding on the states. Frankly, constitutionalists should first look at the relevant state constitutions, which I'm guessing don't permit many of the restrictions that Governors are placing on their residents.

    4. Interesting that in modern times, purported elite legal theorists continue to proffer that the Bill of Rights isn't enforceable against the states: That despite the word "state" appearing in the BoR within three separate amendments. The sixth amendment actually gives specific detail as to due process, which states are obligated to provide the criminally accused. Moreover, those minimum rights are elements of the Republican form of government, guaranteed in Article 4 Section 4.

      With the adoption of the BoR, the states agreed to establish in writing, a set of uniform minimum, pre-existing rights for all citizens, pursuant to The Declaration of Independence and Article 4 Sect. 2. Therefore, there was never any need for the 14th Amendment nor its vaunted purported incorporation doctrine.

      The 14th was the first national social engineering program, instituted against guaranteed fundamental freedoms. It actually declares that US citizens are dependent upon the Federal government for their rights. Contrast that with the Declaration, which unmistakably delineates innate rights on the basis of Natural Law, further elucidated within the Bill of Rights. Now, instead we have a system of contrived Federal civil "rights," imposed by force upon us all.

      Cody at ironclyde@netzero.net

    5. Cody, in fact in his fifth volume of "Conceived in Liberty", on pages 301-2, Murray Rothbard contends that only the First Amendment was intended to apply only to the federal government, whereas Two through Nine were intended to apply to the federal and all state governments, because only the First Amendment specifically mentions “Congress.”

      While this would seemingly be contrary to the reason for requesting the amendments coming out of the Virginia and New York conventions –- namely, to further limit the powers of the new, general government -- it would be consistent with Rothbard’s overall theme that the nationalist framers were, at every opportunity, looking to emasculate state governments (so why not put more restrictions on them too?).

  4. I respect The Tenth Ammendment Center but totally agree with you here. The constitution can be a nice tool for certain arguments but the reality is our government has moved so far beyond that document that it's nearly irrelevant.

    Further, it's not as though the governors are following their own constitutions in any way with these draconian lock downs. They have no leg to stand on there.

    It seems to me the Commerce Clause could be used as the bludgeon to end these lock downs. They are interfering with trade.

    1. They certainly have used the Commerce Clause for worse. Freedom might as well get some use of it.

  5. I absolutely agree. Constitutions are nothing more than codified tyranny.

  6. Can’t he just enforce the first amendment? Seems too simple and obvious I know.

  7. Let states and the people closest to them, state residents, deal with this issue on a local level. Besides, that is where our freedom agitation should be focused anyway, locally. Like Brion McClanahan's oft repeated mantra "Think locally, act locally" I think getting back to this true "federalism" will start distinguishing true free states from non-free states. Some communities are just going to be different and have different values than others. True federalism with live and let live attitudes answers that. Universalism is practical nonsense and always looks to which universalist idea is best to rule them all (the 300 million). It is centralism to the core.

    I think what Trump ought to do is get with Republican governors and start opening up, and watch the democratic governors scramble against increased citizen agitation.

  8. RW has done a great job in opposing this hoax & power grab using statistics & logic....

    I am sure he is not one to say "I told you so" but this is what he has said from the start of this fiasco; the numbers never did support this massive government power grab and destruction of the economy and people's lives:



    "We know now, however, that the COVID-19 virus was grossly overestimated, at least with respect to the demand its victims would place on hospitals. Weirdly, it is not easy to find a definitive figure for the number of hospitalizations to date. The Centers for Disease Control estimates, if you do the arithmetic, that as of April 4 around 41,250 people were hospitalized due to COVID-19, which seems too low. The COVID Tracking Project pegs it at 62,673 as of April 13. Does that sound like a lot of hospitalizations?

    As usual, the numbers need a context.During last year’s flu season, according to the CDC, 490,561 people in the U.S. were hospitalized due to the seasonal flu virus. The prior year, it was 810,000 flu hospitalizations. This explains why, as we noted here, America’s hospitals have not been overwhelmed by the number of Wuhan flu sufferers, not even in New York City. The number of COVID-19 hospitalizations falls well within the natural variability in flu hospitalizations that we always see from year to year.

    Once again, government officials are making decisions with catastrophic effects on many millions of lives, on the basis of models that have proved to be wrong. The shutdowns should end tomorrow."

    People need to be protesting this now......before more destruction occurs....

    I totally agree with what RW says: freedom now not legal niceties over a piece of paper that obviously is less respected and useful then TP right now is NOT what is needed

  9. I agree, freedom as quickly as possible but it is only meaningful if it comes from the bottom up not the top down. From each individual embracing it not from some political officeholder granting it.

    1. Agreed. People in massive numbers need to simply ignore the orders being given by the mini-Hitlers in their bunkers.

      Let their goon pigs (cops) be shown to be the immoral enforcers for pay of immoral edicts of evil men

  10. I disagree. Trump should not have the power to order states to end their lockdown, nor should he have the power to enforce a lockdown.

    This is not based on a literal Constitutional interpretation; it is simply the application of the principle that government should be as local as possible, and that a greater jurisdiction should have less power.

    Supporting Trump for forcing an end to the lockdown, is a utilitarian argument. "It helps the economy, and it increases freedom generally, so that makes it right, no matter what the means used to achieve it!!!"

    I'd rather have the states fight for their sovereignty against the Feds, than for the Feds to trump the states, even if the short-term results are favorable.

    If this lasts long, then it's a much-needed reflection and correction of federal power.