It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong. No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings:
You know, I — people call me simple, because I really believe this document is the genesis of our success as a country. And I believe these words are plainly written, and I believe we ignore them at our peril. And my hope is that the Supreme Court will re-look at the intent of our founders and the 10th Amendment, where they guaranteed that everything that wasn’t spelled out specifically for the Congress to do was explicitly reserved to the states and to the people. To do less than that undermines our future.
But that’s not what the Tenth Amendment says: “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.” This doesn’t come close to saying that “everything that wasn’t spelled out specifically for Congress to do was explicitly reserved to the states and to the people.” This might be what Senator Coburn wants the Tenth amendment to say, but that’s just judicial activism, legislating from the bench, making, not interpreting law. Indeed, Senator Coburn’s interpretation of the Tenth Amendment is closer to a similar, but much stronger “states’ rights” provision in the Articles of Confederation, the first American charter replaced by the United States Constitution. Here’s the relevant provision “Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” (Emphasis added) There’s no “expressly,” “spelled out specifically,” or “explicitly reserved to the states and to the people” in the Tenth amendment. If Senator Coburn is going to object to going beyond the plain words of the Constitution, shouldn’t he be required to know what those words are?