Suddenly the nearly forgotten Tenth Amendment is relevant again! But in a delicious reversal of roles, it is the progressive state governors who are invoking the Tenth Amendment — in desperation — to protect themselves from a national government that is mostly getting in their way as they try to cope with the crisis.
As the Chinese proverb puts it, may you live in interesting times.
Former Speaker of the House of Representatives Tip O’Neill famously said, “all politics is local.” The paradox of the coronavirus is that all disease is in many ways local, too. A patient enters a local hospital to be treated by local medical professionals. Absent a national health-care system, medical treatment in the United States is delivered by a dizzying range of systems, with widely different results depending on the availability of insurance, affordability and coverage options, but also social class and regional political philosophies.
The coronavirus has affected some states (New York, Washington, Florida, Louisiana, New Jersey) much more severely than others (North Dakota, Wyoming, Alaska). The social lockdown in a place like New York City or Detroit has to be more draconian than in Nebraska or Utah, if only because of the remarkable differences in population density. Gov. Andrew Cuomo faces challenges that the governor of Montana can scarcely comprehend. Those who wonder why rural states have been more reluctant to adopt strict social distancing protocols than urban states find it hard to conceive of a place like Wyoming, where the largest city, Cheyenne, has a population of only 59,466 people and the next largest population center, Casper, is 178 miles away.
Given how vast, varied, and unevenly populated the United States is, it makes sense that state sovereignty would prevail in many coronavirus policy decisions. As the Trump administration rightly understands, a one-size-fits-all national policy is — on some questions — an imprecise tool with which to combat the pandemic. This makes sense. California, with a sixth of the world’s economy and a population of 40 million, is a commonwealth unto itself in Jeffersonian terms. New York is still known as the Empire State. With a population of almost 20 million, and one of the five most important cities on the planet, New York has a significance and a set of challenges that sets it apart from most other states.
On the other hand, everyone understands that the coronavirus crisis is an unprecedented chapter in American history. Never before, not even during the Great Depression of the 1930s, has any event brought community life of America to a near-standstill. Never before in the aeronautic era have so few planes flown over American skies (except for one week following the 9/11 attacks). Never in the history of the L.A. freeway system has that vast network of multi-lane highways been essentially empty. Never before have the professional sport leagues been suspended. Never before have all of the nation’s schools and colleges and universities canceled onsite classes for the remainder of the school year.
The national economy appears to teeter on the brink of collapse. Unemployment may rise as high as 30 percent, perhaps even higher. Not even the best economists can predict how soon the national economy will rebound and it is universally understood that hundreds of thousands of businesses will never reopen their doors. We are living through a colossal national and indeed international crisis. Clearly, states do not have the capacity to get us through the crisis without unprecedented national governmental support.
There is no playbook for sorting out what parts of the coronavirus belong properly to the states and which parts are truly national in scope and urgency. In many respects, America is making it up as it goes along. The Constitution does not provide clear guidelines for elected officials or government functionaries.
Without descending into the blame game, it is perhaps just to acknowledge that the national government of the United States has not handled the pandemic very efficiently or with a steady, clear and centralized voice; and that a crisis of this complexity does not bring out President Trump’s strengths as a national leader.
The history of the United States has been a roller coaster on the question of state versus national sovereignty. Thomas Jefferson occupied one extreme end of the spectrum, Theodore Roosevelt the other. They served as president exactly 100 years apart. Jefferson, who served between 1801-09, believed that the national government had very few legitimate functions: foreign policy, a common currency, post roads, defense, a judiciary that could serve as the umpire between states at odds with one another. He actually called the national government “the foreign department.” Theodore Roosevelt, who served between 1901-09, believed the national government could do anything not specifically prohibited by the Constitution.
Thomas Jefferson was the Founding Father most committed to states’ rights. To his old mentor George Wythe, Jefferson wrote in 1787, the year of the constitutional convention, “My own general idea is that the States should severally preserve their sovereignty in whatever concerns themselves alone, and that whatever may concern another State, or any foreign nation, should be made a part of the Federal sovereignty.” To Edward Carrington he wrote, “My general plan would be to make the States one as to everything connected with foreign nations, and several as to everything purely domestic.”
The best book on Jefferson’s constitutional theory is by David Mayer, 1994.
Theodore Roosevelt was a Hamiltonian who advocated a very strong and proactive national government. Although he was careful not to say it, Roosevelt would have been happy if the concept of state sovereignty was discarded once and for all. Exactly opposite to Jefferson, Roosevelt saw the Constitution as an enabling, not a restraining, document. He famously said, “The Constitution exists for the people, not the people for the Constitution.” When Roosevelt tried to set standards for workplace safety, child labor laws, the 40-hour workweek and environmental protection, he bristled and scoffed at the notion that the national government could only regulate commerce with interstate activities, but not the commerce that occurred entirely within a single state.
You can imagine how differently these two great presidents would have responded to the coronavirus pandemic. Jefferson would have tried to avoid intruding on state sovereignty wherever possible; Roosevelt would have thrust himself into the center of the arena on the principle that it is better to apologize later than to seek permission. But here’s what these two statesmen would have shared: clear, rational, consistent, scientifically based national messaging; candor and transparency; a belief that reason is our only oracle and science must be given primacy in its own arena. They would both have told the truth, the whole truth, and nothing but the truth to the American people.
Theodore Roosevelt’s friends Henry Cabot Lodge and John Coit Spooner of Wisconsin attempt to constrain him within the confines of the US Constitution. Titled, "WITHIN THE CONSTITUTION," the cartoon was published in Harper's Weekly February 1905.
The inefficiency and in some cases abdication of the national government in the face of COVID-19 has put the onus on state and local authorities. Some state governors have done such an outstanding — and steady — job of managing the pandemic within their borders that they have emerged as national leaders, almost shadow presidents, in the last two months. California’s Gavin Newsom, Washington’s Jay Inslee, and New York’s Andrew Cuomo have received high marks not only for their management of the crisis, but also for their compassion and empathy, for their calm yet strong demeanor, for their professional deportment, and for the selflessness with which they have performed their roles.
A large number of Americans, hungry for national leadership that seems “presidential,” have posited that each of these governors, and a few others, would make good candidates for president. Each of these governors has, in different ways, concluded publicly that in the absence of national leadership, they have no choice but to chart their own destiny. A few of them on both coasts have formed loose regional coalitions with other states to formulate a common approach to the challenge of loosening shelter-in-place restrictions as soon as it is regarded as safe to do so, but not so soon as to jeopardize public health.
One example of government inefficiency has been procurement of masks, swabs, ventilators and other medical equipment needed by hospitals and medical professionals throughout the U.S. Insisting that the national government is “not a shipping clerk,” President Trump urged each state to buy the equipment it needed on the open market. This brought about enormous confusion and inefficiency to the procurement process and forced desperate states to engage in bidding wars for life-saving equipment. In anguish, Cuomo of New York said, “We are all trying to buy the same commodity, literally the same item, so you have 50 states all trying to buy the same item, competing with each other. It’s like being on eBay with 50 other states bidding on a ventilator.”
This is one of the areas where Jefferson would have wanted federal coordination — to keep the price down and to prevent rivalry between states. Jefferson’s government would serve not as a shipping agent but a national referee or umpire to bring order to the process and insist upon distributive justice. In other words, he would wish to make sure a limited supply of ventilators (for example) would be distributed to limit suffering and death to the extent possible. Perhaps each governor would wind up being frustrated in not being able to get all the ventilators she or he needed, but the national government would accept responsibility (and rebuke) to avoid squabbling between the states.
Even when the national government has tried to play a serious role in handling the pandemic, its response has been hampered by confusion, agency infighting, mixed messaging and what appear to be unkept promises and actual lies. By all accounts, the setting up of a parallel task force led by the president’s son-in-law Jared Kushner has decreased the efficiency and messaging of the national government. The daily briefings have mostly lost sight of their original purpose — to provide information to the American people and a sense that the national government is taking appropriate steps to combat the disease — and become an opportunity for President Trump to air his theories and grievances, to spar with reporters, denounce his real or perceived enemies and to defend himself against the charge that he ignored a range of warnings from top government entities and played down the seriousness of the virus precisely at the time when he should have been marshalling the national government’s response.
The Historical Background
State sovereignty has two historic foundations. One is the concept of federalism, which means that the national government is sovereign in some ways, and state governments in others. This unique dual-sovereignty principle was insisted upon at the constitutional convention of May-September 1787 and though it has been the source of jurisdictional tension and confusion, it is a central fact of American political life. The second principle — one that has emerged mostly in the last hundred years — is the idea of a “laboratory of democracy,” in which each of the 50 states addresses public issues in its own way, within some significant limits, so that regional and demographic differences can be factored into public law, and so individuals states can undergo policy experiments without committing the entire nation to a one-size-fits-all set of policies. Thus, Montana chooses its judges in one way, Wisconsin in another.A good example of this in our time is the variety of recreational and medical marijuana laws. Many states decided to observe the logistics, the challenges and opportunities of legalization in Colorado before deciding whether to legalize within their own borders and, if so, under what conditions. Colorado was thus a “laboratory” in which to work out the kinks of legalization in one jurisdiction, from which other states could learn important lessons of what to do and not to do if they chose to follow suit.
The original U.S. constitution, the Articles of Confederation (1781-1788), created a loose confederation of sovereign nation-states: New Hampshire, New York, South Carolina, Georgia, Virginia. These sovereign states agreed to do a few things in common, but most of the destiny of a citizen living in Pennsylvania would be managed by the state legislature or local authorities (counties, townships, towns). The national government could coin money, provide for the common defense, and manage foreign policy, but almost everything else would be handled at the state level. Under the Articles of Confederation, the national government could not directly tax the people of Virginia or Maryland or any other state. It had to requisition tax funds and hope that the states would voluntarily comply. (They seldom did.) Each state had one vote in the confederation congress. The Articles could only be amended by the unanimous vote of all 13 states.
By 1786, every serious American understood that the Articles of Confederation were a failure. They realized that more authority was needed in a government truly national, including the power to tax. The 55 men who met in Philadelphia in the summer of 1787 tore up the Articles and created a wholly new constitution designed to create enough national authority to permit the United States to do the things that a nation must do, but at the same time to preserve to the states whatever sovereignty it could. The result was the Constitution of the United States we still use 232 years later, with just 27 amendments in all of that time.
Those who feared so much central authority demanded, and got, the Bill of Rights, drafted by James Madison in the First Congress of the United States and adopted on Dec. 15, 1791. From the standpoint of this discussion, the most important of those amendments was the Tenth, which 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 Constitution makers had also tried to protect state sovereignty by guaranteeing each state two U.S. senators irrespective of population or geographic size, and by permitting state legislators to choose their own senators (until the Seventeenth Amendment in 1913).
The Paradox in 2020
For a very long time, certainly since the Depression and World War II, Americans have counted on the national government to step up in times of monumental crisis. Nobody (except perhaps Thomas Jefferson) would have expected Louisiana to handle the Hurricane Katrina catastrophe by itself, or Oklahoma the Oklahoma City Bombing (April 19, 1995), or New York the attacks on the World Trade Center on Sept. 11, 2001. Floods, prolonged droughts, tornadoes, hurricanes, tsunamis, the banking collapse of 2008, and other disasters have seemed automatically to call upon the full strength and resources of the national government.Only the handful of true state’s rights conservatives, sometimes including Texas Sen. Ted Cruz, have argued that these are “local concerns.” It would seem automatic and inevitable, therefore, that the global pandemic of 2020 would instantly bring the national government of the United States to unprecedented prominence. But that is not what has happened — so far. The government of Donald Trump has been oddly detached from the pandemic. Nobody is quite sure why.
The paradox is even more pointed when one considers President Trump’s fascination with authoritarianism. He has at various times, perhaps merely in jest, declared his preference for authoritarian powers. His admiration for dictators and strongmen is unmistakable: Vladimir Putin in Russia, Philippine leader Rodrigo Duterte, Xi Jinping of China, Kim Jong Un of North Korea, President Recep Tayyip Erdogan of Turkey, and Saudi Arabia’s Crown Prince Mohammed bin Salman, all of whom he says are his good friends.
One might have expected Trump to use the global pandemic to assume unprecedented powers as president, to luxuriate in dictating every response on every level in all 50 states. It is even surprising that President Trump has made his vice president the coronavirus czar and his son-in-law the shadow coronavirus coordinator. Instead, Trump has mostly served as a kind of informal national commentator on the actions of others. When he reads from his script at the daily briefings, he often stumbles on names and pharmaceutical terms (admittedly difficult) and sometimes he appears to be reading his own remarks for the first time. He comes to life mostly during the extended question and answer sessions with reporters in which he often behaves like a cynical tavern know-it-all rather than the presiding officer of a nation of 340 million. Even his supporters find his disruptive approach to the briefings troubling.
Given President Trump’s detached approach to leadership in a time of pandemic, it is all the more surprising when he suddenly asserts his mastery and unchallengeable authority. A large number of the nation’s governors and all of its constitutional scholars, for example, have rejected Trump’s declaration on Monday, April 13, 2020, that he has “absolute power” to determine when to reopen the country for business. Even normally pro-Trump conservatives pushed back hard on this wild claim, including Rep. Liz Cheney of Wyoming, Florida Sen. Marco Rubio, and former G.W. Bush Justice Department official John Yoo.
Most sober commentators who have observed the pandemic crisis from late January until today have concluded, “thank God for federalism.” Most of the states have stepped up in ways that could not have been anticipated in 2019. Some of the state governors have emerged as national heroes and, to a certain extent, alternative national leaders.
For more of Clay Jenkinson's views on American history and the humanities listen to his weekly nationally syndicated public radio program and podcast The Thomas Jefferson Hour.
