Justice

Mike Huckabee Tries To Play Constitutional Scholar, It Doesn’t Go So Well

CREDIT: AP Photo/Nati Harnik

“As president, I would take seriously the Tenth Amendment,” former Arkansas Gov. Mike Huckabee (R) told a friendly crowd during the speech kicking off his presidential campaign on Tuesday. As Huckabee understands the founding document, it “was explicitly clear about keeping the federal government small, so it would be able to focus on some simple things like providing a military and securing our borders.” Meanwhile, Huckabee called out one particular federal government function that he believes to be unconstitutional — “there is no constitutional authority to dictate education from the federal government. Why even have a federal Department of Education? It’s flunked and it need to be expelled.”

Politically, Huckabee’s speech is about five years too late. Though “tentherism,” the belief that pretty much everything violates the Tenth Amendment of the Constitution, enjoyed a bit of a renaissance in the lead-up to the 2010 election, Republican candidates started to abandon tenther rhetoric after this philosophy’s most outspoken proponents fared poorly in an election that was otherwise a bonanza for Republicans. Indeed, if Republicans had not nominated candidates who read the Tenth Amendment aggressively in four otherwise winnable senate races, it is likely that Senate Majority Leader Mitch McConnell (R-KY) would have ascended to his current job four years sooner than he actually did.

The roots of Huckabee’s reading of the Constitution, however, stretch back much further than 2010. The Tenth Amendment, which provides that “[t]he 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,” merely restates a principle that was already implicit in the Constitution prior to the ratification of the Bill of Rights. The Constitution contains a laundry list of federal powers, such as the power to regulate interstate commerce or the power to set up post offices, and it cannot act outside of these enumerated powers.

Nevertheless, many of these powers are quite broad, including the power to “lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” In the earliest days of the Republic, Treasury Secretary Alexander Hamilton explained that this power to raise money and “provide for . . . the general welfare of the United States” gave Congress broad authority to spend tax revenue on projects beneficial to the nation, and that it does not limit the federal government’s power to spend money to certain subject matters. “The phrase is as comprehensive as any that could have been used,” Hamilton wrote, adding that it “necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.”

Meanwhile, James Madison belonged to another faction which claimed that this power to spend money was much more limited. Late in life, however, Madison admitted that his reading of the power to raise and spend money was not consistent with the text of the Constitution. Nevertheless, he insisted that “[t]o take [the Constitution’s words] in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, this battle between Hamilton’s expansive view of federal power and Madison’s more limited one, a battle which extended well beyond questions of how the federal government can spend money, tended to flare up and die down again throughout much of American history. Indeed, Chief Justice Melville Fuller, a Madisonian who presided over the era when the Supreme Court upheld segregation and eviscerated laws protecting workers, once described the entirety of American political history as a battle between the two founders’ competing visions of the role of government.

Flash forward more than a century after Fuller’s death, however, and Hamilton’s textualist understanding of the Constitution is widely embraced, while Madison’s effort to find limits on the federal government in penumbras and emanations of the Constitution’s text has largely been abandoned. The broad power that Hamilton described is the basis for federal programs ranging from Social Security to Medicare. It is also, to bring matters back around to Huckabee’s speech, the basis for the federal government’s involvement in education.

The federal government does not, as Huckabee suggests, “dictate education.” In most instances, direct federal regulation of education actually is unconstitutional. Congress could not, for example, fine parents of truant children. Nor could it, under the Supreme Court’s decision in Printz v. United States, outright require a state to operate its public schools in a certain way.

What the federal government does do, however, is spend money on matters related to education. It provides grants and loans to help students afford higher education, for example, and it provides grants to public schools. These programs are entirely consistent with the Constitution’s text enabling Congress to raise revenues and spend them to “provide for . . . the general welfare of the United States.

The federal government also sometimes makes conditional grants — that is, it may offer money to a state on the condition that the state comply with certain requirements. While this power is subject to some limitations, it is also quite broad and is entirely constitutional. As the Supreme Court explained in South Dakota v. Dole, “Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.'”

So Huckabee misreads the Constitution. In doing so, however, he seeks to reignite a doctrinal war that is more than two centuries old. One person that would almost certainly recoil at this effort, however, is James Madison himself. As a congressman during the Washington administration, Madison opposed the creation of the First Bank of the United States on constitutional grounds. As president, however, Madison signed the law creating a Second Bank. He explained that the nation had accepted the creation of the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”

Madison, in other words, understood that long-settled constitutional battles must end. The same thing, however, cannot be said about Mike Huckabee.