As you can imagine, I get lots of emails. I try to answer most of them as soon as I get them. Some emails take a little more time. Every once in a while I get what I call a “Tar-Baby”[1] email. Once you respond to a “Tar-Baby” email, there is no way to extricate yourself from it. No matter what evidence you offer in response, the emailer, instead of answering the evidence, brings up another line of argument, ignores the counter argument, or disputes the evidence even though it is referenced. What I struggle with is whether I should respond at all to what I know is going to be a “Tar-Baby” emailer.

When I make the decision to respond, it’s because I see the argument as a challenge and it forces me to sharpen my skills and do more research to clarify the position for myself and learn more about the subject. Unfortunately, many “Tar-Baby” emailers come across as condescending know-it-alls. Take Joseph N. who believes the United States Constitution was designed to be the supreme law of the land in everything. He knows he is right about this because, to use his words, “I, sir, have an education in law; you do not.” I suppose he means by this that since he has an education in law that his views on the law and the Constitution are the correct ones. Joseph should be reminded that there are tens of thousands, maybe even millions, of people who have “an education in law.” Law professors have an education in law, and all law professors don’t agree on how the law and the Constitution should be interpreted and applied. If all law professors did agree on every subject, there wouldn’t be any need for law professors since there wouldn’t be any need for lawyers who are in business to debate how the law should be applied because not all lawyers agree!

The Constitution, as we shall see, was designed to perform a limited “delegated” task. In those “delegated” areas, it is the “supreme law of the land.” In those areas where it does not have “delegated” powers, it does not have jurisdiction. Of course, this understanding of the authority of the Constitution’s regulatory scope has changed over the years, mostly by the courts, but there is no doubt that the “delegated” and “enumerated” powers view was the original intent of the founders and the states that ratified the Constitution. Does this mean that the Constitution can never expand its powers? Not at all. That’s why there is an amendment process.

Anyone who claims to “have an education in law” certainly knows that the debate over the limits of federal power has been going on for more than 200 years with no immediate resolution in sight. Lawyers make a good living fighting over the applicability of the disputed provisions. The Constitution is the “supreme law of the land” in those powers that have been “delegated” to it. It was never meant to be an open-source document, although it has been treated this way. Even the United States Senate understood this . . . in 1837!

In the adoption of the Federal Constitution, the States acted severally free, independent and sovereign States. Each for itself, by its own voluntary assent, entered the Union with a view to its increased security against all dangers, domestic as well as foreign, and the more perfect union and secure enjoyment of its natural and social advantages. In delegating a portion of their powers to be exercised by the Federal government, the States retained, individually and respectively, the exclusive and sole right over their domestic institutions and police, and are alone responsible for them.[2]

The colonies had fought a war with England over the relationship between national and local sovereignty. It’s doubtful that the states would have turned around to create a national government that put them in the same political predicament that they had shed blood over just twelve years earlier. The constitutional framers were so mindful of this fact that they referenced the Declaration in the following way: “ Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth,” that is, the twelfth year since the drafting of the Declaration of Independence in 1776.

Not satisfied with the restrictions put on the national government, the states would not ratify the Constitution until there was a Bill of Rights enjoined to it. The states realized that not everything could be put in the amendment process, so they covered the sovereignty issue with the Ninth and Tenth Amendments, with the Tenth being the most clear and all-encompassing:

Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Tenth: “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.”

There were those who believed a Bill of Rights was unnecessary because, as Alexander Hamilton put it, “Why declare that things shall not be done which there is no power to do?”[3] His logic is clear. Since the Constitution listed what the powers of the national government were (e.g., Art. 1, sec. 8), why make a list of what powers it did not have? As time passed, however, Hamilton “favored a broad interpretation, which meant a strong central government deriving its authority from implied as well as express powers contained in the Constitution.”[4] Madison argued in a similar way in his letter to Thomas Jefferson: “I conceive that in a certain degree … the rights in question are reserved by the manner in which the federal powers are granted.”[5] Both Jefferson and Madison expressed their limited government views in the Kentucky and Virginia Resolutions. Consider Jefferson’s argument in the Kentucky Resolutions of 1798:

Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party….each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.[6]

There are those who want a super-federal government. Listen to this year’s presidential candidates. They would be most happy to turn all power over to the Federal Government so every “wrong” would be made “right.” What they want, heaven help us, is a national government in control of everything, and, of course, they would determine what is “right” and who would pay for it

James J. Kilpatrick is correct when he writes, “And so long as the Tenth Amendment remains a part of the Constitution, it is elementary that it must be given full meaning—that the intention of its framers must be acknowledged and respected. Plainly, the intention of the Tenth Amendment was to restrict the Federal government—to hold it within the strict boundaries of the delegated powers.”[7]

Beware of someone who claims to be an authority on a topic because he has been trained in the field. An appeal to one’s own authority does not make him an authority, unless, of course, he’s God. 

[1] A Tar-Baby was a doll made of tar and turpentine that made it sticky. It was used to trap Br’er Rabbit in the [Uncle Remus](“" ““Uncle”) stories. The more Br’er Rabbit tried to pull himself free from the Tar-Baby, the more stuck he became. In contemporary usage, a tar baby refers to “a situation or problem from which it is virtually impossible to disentangle oneself.”
Quoted in We the States: An Anthology of Historic Documents and Commentaries thereon, Expounding the State and Federal Relationship (Richmond, VA: The William Byrd Press, Inc., 1964), xvi-xvii.**
[3]** Alexander Hamilton, _Federalist, no. 84_ (May 28, 1788).**
[4]**“ In the early Days of the Union.”**
[5]** James Madison, Letter to Thomas Jefferson (October 17, 1788).
**6]**“ The Kentucky Resolutions” (November 10, 1798).
**[7]** James Jackson Kilpatrick, _The Sovereign States: Notes of a Citizen of Virginia_ (Chicago: Henry Regnery Com., 1957), 47.