The Hammonds, the Bundy’s the Tenth Amendment, and the Oregon Wildlife Refuge Building Occupation
By Ken K. Gourdin
In no way do I support the actions of the Hammond or Bundy families, who led the effort to protest what they see as unwarranted intrusion onto federal lands by leading the occupation of a federal building on an Oregon wildlife refuge. In response to a question from a friend of mine, who is a member of the Bar in another country, I wrote the following:
None of this should be read as my endorsing the actions of the Hammonds or the Bundys. Perhaps it will simply help to frame the issues or the debate. There will be a wide variety of opinions as to whether any given assertion of federal power is appropriate, and debate over such questions certainly is in no danger of abating any time soon.
The United States Constitution (at least in a historical or ideal sense) creates a dual-sovereignty system, in which some powers are left to the states and others are left to the federal (national) government. This concept largely has fallen into disfavor in recent decades and years, as courts have allowed the federal government to expand its powers in ways never dreamed of by the Constitution’s framers.
The Tenth Amendment to the United States Constitution states: “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.” The seeming limits imposed on federal power by the Tenth Amendment have, however, faced increasing erosion in recent years, in two ways.
One way the federal government has expanded its powers in recent years is by declaring more and more things “fundamental rights” which are not subject to state control. Perhaps the best recent example of this is with respect to the recent United States Supreme Court decision Obergefell v. Hodges, which held that gay marriage, as a fundamental right, is now legal in all 50 states.
Another way in which the federal government recently has expanded its powers is through the Commerce Clause. The Constitution grants the federal government the right to regulate “commerce” among the several states. In recent decades, courts, including the United States Supreme Court, has read this concept extremely broadly, allowing the federal government to impose expansive regulations on conduct, even when that conduct does not involve “commerce” in any of the usual meanings of that word, and even when it occurs entirely within one state.
Those who favor these (and other) expansions in federal power are quick to point out that those who favored the racial discrimination and segregation of blacks in the “Jim Crow” southern U.S. also appealed to the Tenth Amendment as support for maintaining that status quo. While I think there are reasons good and sound for government to, e.g., privilege opposite-sex marriage over its same-sex counterpart, it’s difficult to explain that position without escaping being tarred as someone who engages in, or who favors, allegedly-invidious discrimination.
Personally, while I think there are numerous meaningful differences between appealing to the Tenth Amendment as part of an argument against gay marriage, on the one hand, and appealing to it to maintain racial segregation and discrimination, on the other hand, that’s a challenging case to make: no one wants to be tarred as a racist, as a segregationist, or as someone who opposes gay marriage because he wants to deny rights to gays.
Again, I don’t support the actions of the Hammonds or of the Bundys. Nevertheless, if the Tenth Amendment really has become a dead letter in modern U.S. politics and jurisprudence, let those who favor its repeal “stand up on their hind legs,” as a law professor of mine likes to say, and set in motion the process necessary to repeal it. As long as it’s still on the books, though, it ought to mean something—and that meaning ought to be far weightier than that attributed to it by courts in recent years.