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The Tenthers Are Coming—And They Don’t Want You To Go To College


CREDIT: Flickr / Dave77459

Sen. Tom Coburn (R-Okla.) recently declared that all federal involvement in education, including Pell Grants and federal student loans, is unconstitutional—and he’s not alone. Rep. Scott Garrett (R-N.J.) routinely grills Secretaries of Education about why the Department of Education even has the constitutional right to exist. Rep. Paul Broun (R-Ga.) called upon Congress to “defund” education, a call Rep. Virginia Foxx (R-N.C.) recently echoed on the floor of the House of Representatives.

All of these lawmakers are part of an emerging right-wing movement known as “tentherism,” which claims that pretty much everything that Congress does violates the Tenth Amendment. As Foxx explained, because words like health care and education “are nowhere in the Constitution,” the Tenth Amendment prohibits all federal laws that touch upon these issues, and Americans who depend upon Pell Grants, Medicare, Medicaid, federal student loans, or Title I education grants can all eat cake.

Lest there be any doubt, Foxx and her fellow tenthers are drastically misreading the Constitution. The Tenth Amendment provides that “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.” In layman's terms, this simply means that the Constitution contains an itemized list of federal powers—such as the power to regulate interstate commerce or establish post offices or make war on foreign nations—and anything not contained in that list is beyond Congress’s authority.

Yet, while Congress’s powers are not unlimited, they are still quite sweeping— and one of Congress’s broadest powers is its power to spend money. Congress is free to spend money, so long as it does so to “provide for the common defense and general welfare of the United States.” For this reason, federal programs designed to expand educational opportunity are clearly constitutional. There is no question that programs designed to build a highly-skilled and competitive national workforce provide for the “general welfare” of this country.

It’s unclear where Foxx gets the notion that the Constitution must specifically invoke the word “education” before national leaders can do anything about it, but this is hardly a new idea among far-right constitutional thinkers. In 1956, less than two years after the Supreme Court’s landmark decision in Brown v. Board of Education, nearly 100 conservative Members of Congress signed a “Southern Manifesto” proclaiming that because the Constitution “does not mention education” any attempt to desegregate southern schools is an unconstitutional “encroach[ment] upon the reserved rights of the States and the people.”

It’s likely, however, that Foxx’s tentherism is rooted in a much older battle over the Constitution.

Tentherism’s creation myth begins with a more than 200 year-old debate between James Madison and Alexander Hamilton. Despite the Constitution’s broad language empowering Congress to “provide for the common defense and general welfare of the United States,” Madison claimed that federal spending is only permitted when it advances one of Congress’s other enumerated powers, such as by building a post office or funding a war. Thus, he argued, Congress could not spend money to create a national bank because the Constitution does not specifically mention a federal banking system.

Hamilton rejected Madison’s claim, and President George Washington eventually resolved this debate in Hamilton’s favor.

It’s worth noting that Madison himself eventually conceded this debate to the Hamiltonians. As president, Madison signed legislation establishing the Second Bank of the United States. Madison also appointed Joseph Story to the Supreme Court, a staunch advocate of Hamilton’s view of federal power. Nevertheless, modern day-tenthers refuse to give up this ghost. More than two centuries after Madison’s might-have-been vision of the nation was laid to rest, the tenther movement is determined to refight this battle between two of the nation’s founders—only this time they want the loser to win.

If they succeed, it won’t just be Pell Grants and college loan assistance that fall on the chopping block. Tenther Sen. Mike Lee (R-Utah) has called countless federal programs—Social Security, federal health care programs such as Medicare, and even federal child labor laws—a violation of the Tenth Amendment. Sen. Rand Paul (R-Ky.) believes that the federal ban on whites-only lunch counters is unconstitutional. One Texas state official even claimed that the entire federal highway system violates the Constitution.

Ultimately, however, tenthers have to understand that the American people will not stand for an agenda that would kill all of the progress of the last century—which is why tentherism is ultimately an authoritarian assault on democracy itself. Tenthers are unlikely to succeed in repealing Social Security, Pell Grants, or the Affordable Care Act. But if they can get them all declared unconstitutional, they won’t have to.

Ian Millhiser is a Policy Analyst and Blogger for the Center for American Progress.

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