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The Tenth Amendment Is Dead As A National Political Issue

By Ian Millhiser  

"The Tenth Amendment Is Dead As A National Political Issue"

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Ken Cuccinelli, Teiro Cuccinelli

CREDIT: AP

When Sen. Mike Lee (R-UT) was an obscure lawyer lecturing small audiences on why federal child labor laws are unconstitutional, Ken Cuccinelli marshaled the Commonwealth of Virginia’s forces behind his effort to bring down Obamacare. When Sen. Ted Cruz (R-TX) was cashing in his sterling legal credentials to draw big fees from corporate clients, Cuccinelli told a federal court that the entirety of the New Deal was out of line with the Founding Fathers’ vision. Cuccinelli wrote a book proclaiming that “public charity was never supposed to be a function of the federal government,” and that Medicare is a trick to expand the federal government’s power. He is the original gangster of tentherism, the belief that pretty much everything violates the Tenth Amendment.

And he just lost to a terrible candidate who left his wife while she was in childbirth to schmooze with Washington insiders, and then recorded himself talking about it.

Terry McAuliffe’s victory, and Cuccinelli’s defeat, both have many mothers. Cuccinelli spent much of the year caught in a major ethics scandal involving the man he hoped to replace. He opposes abortion even in cases of rape and incest. And it sure didn’t help that Governor-elect Terry McAuliffe could credibly argue that Cuccinelli wants to criminalize oral sex.

Yet Cuccinelli made his name as the man most willing to use discredited interpretations of the Constitution to undermine laws he doesn’t like. He bragged incessantly that he was the first to challenge the Affordable Care Act in court. His book attacks Medicare, Social Security, Medicaid and food stamps as fundamentally at odds with American freedom. Just three days after he became Virginia’s Attorney General, he stood up in front of a “Tenth Amendment Rally” in Richmond to tout a bill purporting to nullify parts of Obamacare.

Simply put, no one in America has done more to associate himself with the view that the federal government has exceeded its bounds, or that the Tenth Amendment is the proper vehicle to shrink it back down to size. His race to become governor of a swing state was the perfect test of whether this message resonates with the broader electorate. And he lost. To a real-life version of a House of Cards character.

The Rise of Tentherism

It’s easy to forget, three years after Republicans took back the House and one month after they wielded that leverage to shut down the government, but things should have played out much worse for Democrats in 2010. In an election cycle where Republicans could have nominated a poodle and still picked up a Senate seat in any given swing state, they instead opted for a series of Tea Party purists seemingly designed to convince voters to hold their noses and vote Democrat. Two years later, the GOP did it again with a pair of candidates who offered deeply offensive views on the subject of rape. Mitch McConnell legitimately wanted to be Majority Leader, but Republican primary voters had ways to shut that whole thing down.

A common thread tying together each of these would-be lawmakers was a belief that liberalism is not just wrong, it is fundamentally at odds with our nation’s founding document. The minimum wage is unconstitutional, according to twice-failed Senate candidate John Raese. So is the Department of Education and America’s participation in the United Nations, according to Nevada’s Sharon Angle. Todd Akin is best remembered for his insensitive views on rape, but he also doubted the constitutionality of Medicare, a view that makes Akin a bleeding heart liberal compared to Richard Mourdock. And no one compares to Joe Miller, the Yale-educated, federal magistrate-turned-candidate who campaigned on his belief that Social Security, Medicare, unemployment benefits, minimum wage, Medicaid and federal child labor laws are all unconstitutional.

By tying their conservatism to the Constitution, these candidates offered Republicans far more than an opportunity to elect an ideological purist — they offered them permanent victory. A candidate who repeals a hated law can be tossed out of office and replaced with someone who reinstates it, but if Obamacare, the minimum wage or the Department of Education is unconstitutional, it can never, ever return.

The only problem was that the electorate wasn’t buying it. Raese, Angle, Miller and She-Who-Is-Not-A-Witch all lost their races in 2010. Had the GOP run more appealing candidates, it’s likely they would have won control of the Senate.

On The Down Low

Tenthers were not completely blown away in 2010. Sen. Mike Lee (R-UT) is a proud tenther. So is Sen. Rand Paul (R-KY). But even these men, neither one of whom is known for their tact or restraint, began to temper their rhetoric shortly after they were sworn in as senators. Mike Lee no longer gives lectures on why Social Security, federal child labor laws and Medicare are unconstitutional — or, at least, if he does, he’s now smart enough to do so away from video cameras. Rand Paul’s shifted from explaining his opposition to civil rights laws to making ham-handed attempts to appeal to black voters by highlighting his more sensible views on criminal justice. Both men remain quite radical — Lee was a major driver of the recent government shutdown and Paul’s hardly banished far-right constitutional theory from his speeches — but they are no longer behaving like tentherism is a winning message for Republicans.

Indeed, even 2012 candidate Ted Cruz (R-TX), who helped launch a tenther project at a conservative think tank and who wrote his Princeton thesis on the Tenth Amendment, shied away from the radical constitutional rhetoric that characterized so many 2010 campaigns. Though Cruz called for “serious cuts in federal spending and fundamental entitlement reform,” he was too savvy to label Medicare or Social Security unconstitutional. ThinkProgress also asked him multiple times whether he agreed with Lee that child labor laws are unconstitutional. Though the future senator was often willing to engage with our reporters, he skillfully avoided answering this question.

Yet, as tenther rhetoric faded from stump speeches everywhere else, Cuccinelli remained one of the few holdouts proudly campaigning on the idea that the Constitution implements the Tea Party agenda. The central thesis of his 2013 book, The Last Line of Defense: The New Fight for American Liberty, is that the framers “created a constitution to limit government,” and that state attorney generals like himself had wielded that Constitution to defend against the illegitimacy of liberalism. This is the same book that labeled programs like Medicare “despicable” and that proclaimed that “public charity was never supposed to be a function of the federal government.”

Even Cuccinelli deemphasized these views, however, once his race against McAuliffe began in earnest. The Constitution is notably absent from the “Issues” page of his campaign website, with the exception of a section on guns and the Second Amendment. His campaign ads offer hardly any hints about his tentherism, and that’s limited to a brief mention of the fact that Cuccinelli sued to challenge Obamacare. In an interview with MSNBC’s Chuck Todd, Cuccinelli said he wanted to be governor because he’s concerned that the “federal dollars that flow into Virginia” are “declining.”

Ken Cuccinelli may be tentherism’s most loyal acolyte, but you’d never guess that from his campaign. If you want to be governor of a swing state, you don’t win friends with crazy.

Dead But Dreaming

If Cuccinelli’s afraid to run for office on the Tenth Amendment, it’s hard to imagine too many other candidates being willing to do so. So we’re unlikely to see another cycle like 2010 anytime soon, where candidates openly and proudly campaign on the idea that Medicare is unconstitutional. Yet, while candidates like Joe Miller and Richard Mourdock are unlikely to rise again, the legacy of tentherism is likely to live on in three important ways.

First, while tenthers fared poorly at the Senate level, they were often able to win less high-profile races where a particularly radical candidate’s views were likely to go unexamined. Many of these candidates remain in office, where they’ve pushed unconstitutional efforts to nullify gun laws, undermine Obamacare, and treat federal law enforcement officials like felons. These lawmakers could remain in office for many years, often laboring in obscurity to write Ken Cuccinelli’s vision into their state’s law.

Similarly, while Cuccinelli lost Virginia, Virginia is a very different state than, say, Texas. Candidates like Cuccinelli face an uphill climb in swing states, but they could remain quite electable in deep red states.

But, beyond the question of whether explicit efforts to constitutionalize conservatism will remain a part of American political rhetoric, it’s important to understand that tenthers tapped into a genuinely felt need among the conservative voters who dominate Republican primary elections. The sort of person who believes that the American welfare and regulatory state is unconstitutional — that liberalism is, somehow, unAmerican — is unlikely to see much daylight between George W. Bush and Barack Obama (or, for that matter, between Hillary Clinton and Chris Christie). What use are relatively marginal efforts to roll back entitlement spending if you believe that the very notion of American entitlements is illegitimate?

Even before Christie won his second gubernatorial race and Cuccinelli lost his first, political observers started urging the GOP to adopt Christie’s more welcoming rhetoric if they hope to compete in 2016. One of those observers is Chris Christie.

But it’s tough to imagine that the voters who cast aside a popular longtime congressman in favor of an anti-masturbation activist who “dabbled into witchcraft” will buy what Christie is selling. These are the very same voters who believe, in Ted Cruz’s words, that “great nations rise and fall,” and that America sits on the precipice entirely because it flirted too long with liberalism. The one to lead us away from that precipice cannot be someone willing to compromise with the people who brought us there.

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