Pete du Pont Offers a 10th Amendment Strategy to Limit Powers of the Federal Government

Commentary by Pete du Pont

Washington, D. C. -- Pete du Pont, former Governor of Delaware and currently Policy Chairman of the National Center for Policy Analysis, today issued a call for limiting the power of the federal government and returning power to the states by strengthening the Constitution's Tenth Amendment.

du Pont called for a three-pronged strategy to restore what should be the amendment's preeminent role in a sustained devolution of government to the states and the people. This would include enacting a statute limiting the ability of Congress to interfere in state matters, limiting the jurisdiction of federal courts to rule on matters that the Constitution reserves for the states, and passing a Constitutional Amendment strengthening the provisions of the Tenth Amendment.

Lamenting the manner in which the Tenth Amendment has been "disparaged, ignored, and eviscerated by the federal judiciary," du Pont concluded the Amendment "has become to the Constitution what the Chicago Cubs are to the World Series -- of no consequence and only occasional appearance." "If the federal courts had treated the First Amendment in this fashion," du Pont said, "House Speaker Newt Gingrich might be granting editorial approval to Newsweek and Minority Whip David Bonior might be deciding which peaceable assemblies in Washington meet the test of truly serving the national interest."

du Pont suggested a statute stating Congress's intent to limit interference with the states, including provisions that restrict the passage of unfunded Congressional mandates, the preemption of state and local authority by Congress "unless it expressly declares its intent to do so," and that clarify the intent of Congress that the judiciary enforce the Tenth Amendment when Congress infringes on state sovereignty.

du Pont called for the utilization of the "Exceptions Clause" of Article III of the Constitution to limit the jurisdiction of federal courts to rule on matters that the Constitution reserves for the states (such as state and local taxation, educational standards, state welfare, housing and transportation matters, local commerce, etc.).

As the final element of his proposal, du Pont advocated a Constitutional Amendment that would "settle the issue of federalism with some degree of finality" by clarifying the provisions of the Tenth Amendment. It would state that the federal government's powers are limited and enumerated, the states can exercise all powers not withheld from them by the Constitution, and that in cases where the Constitution is silent on who holds a particular power, it should be deemed to be held by the states.

While Governor du Pont pointed to some recent Supreme Court decisions, the overwhelming popularity of the Contract With America, and the many forms of devolution being debated in Congress as evidence of a renewed focus in federalism, he argued that "the battle for individualism and decentralized government has barely begun." He called for action on the above proposals to persuade Congress and the Supreme Court that "a revival of federalism thinking, as reflected in the Tenth Amendment, is important to the future of the Republic and its citizens."

du Pont's comments were delivered during the first in a series of conferences addressing the Tenth Amendment, sponsored by the Heritage Foundation and The Federalist Society.