Minnesota Governor Tim Pawlenty and the 10th Amendment

tim_pawlentyI grew up in Minnesota and since it was my last place of residence in the US, still vote in the state. After hearing the radio interview this week where Gov. Tim Pawlenty – rumoured to be considering a run for the Republican presidential nomination in 2012 – joined the so-called “tenthers” I sent this e-mail to him this morning. Fraser Hall is (or was, at the time I was there) the law school at the University of Minnesota.
— On Sat, 9/12/09, Charley James wrote —

To: tim.pawlenty@state.mn.us
Subject: Your Comment On The 10th Amendment
Sent: Saturday, September 12, 2009, 9:23 AM

Dear Gov. Pawlenty,

I heard your radio interview this week in which you asserted that the 10th Amendment to the U.S. Constitution gives states the power to not participate in federal health reform legislation.

Were you in hospital the week they taught Constitutional law at Fraser Hall law school while at the University of Minnesota where you supposedly received a J.D? Don’t you remember what was taught about the 10th Amendment? The Supreme Court hasn’t held truck with plaintiffs using it to block Congressional action since before the Civil War.

When I was an undergrad at the UofM, I tested into a graduate school seminar on the Constitution in the Political Science department and wrote a paper on the 10th Amendment. Basically, courts have held for more than 100 years that it’s usurped by Article 1, which gives Congress the power to regulate commerce and promote the general welfare. I received an “A” and I’d be happy to send a copy of the paper to you to refresh your memory. In case I can’t locate it quickly, you might want to read a bit of Thomas Jefferson or look up the Supreme Court decision on the constitutionality of the federal income tax.

Such nonsense comments are unworthy of a governor, or at least one who isn’t governor of Texas. They may play well with the fringe, right wing base that votes in Republican presidential primaries but they make you sound like an utter fool, and an uneducated one at that. It’s bad enough my native state has to contend with a Michelle Bachman; her excuse is that she is an uninformed crazy woman. You went to law school and don’t have an excuse..

Charley James


Somehow, I suspect Pawlenty is more interested in the impact of his idiotic comments on the GOP‘s dwindling base of lunatics than he is in my comments. If I hear back, I’ll let you know.

Charley James
The Progressive Curmudgeon


  1. Charley James says

    Dear Mr. Haller,

    Thanks for taking time to read the Sept., 2009, article.

    First of all, I didn’t realize that “privacy” – the quote marks around the word are yours – is a progressive, liberal, Democrat, Republican, concervative or libertarian issue. The Court has held repeatedly that privacy is a basic right in granted by the Constitution, under nearly every circumstance and the government has an extremely heavy burden of proof to demonstrate that it can invade an individual’s privacy.

    As for the 10th Amendment, it is not a “dead letter box” as you imply that I claim. In fact, what I – and countless Constitutional scholars and law professors – maintain is that the Court has not held truck with using the 10th as the basis for challenges to Federal programs since before the Civil War.

    Of course, the make-up of the current court – which allows mental midgets like Clarence Thomas to actually decide on issues of law – may happily throw out or ignore 150 years of precedent and actually give a challenge to health care reform standing. Remember, this is a court that reached a deeply divided decision on the 2nd Amendment and gun control based on the use of commas in 1789, when English grammmar was very different than it is today.

    I appreciate your invitation to spend time in a library – something I do regularly – or on-line, something I do daily. Some of the things I’ve read in libraries are the Fedralist papers and collections of letters between Thomas Jefferson and several other of the Founding Fathers. It is clear from these documents that the men who wrote the Constitution intended it to be a living, breathing testament to and for the future, not a set of commandments set in stone. Jefferson, in particular, saw a future nation very different from the one at the time of the country’s founding and believed it was the role of the Supreme Court to deliver verdicts in the light of the day in which it rules.

    May I return the favor and extend an invitation to you to do some reading beyond a few cherry-picked decisions.

    Charley James

  2. Charley James says

    3rd UPDATE – Oct. 3 2009 – Gee, here’s a surprise: Several weeks have gone by and I’ve yet to receive even one of those pre-fab acknowledgements of my e-mail to Gov. Pawlenty. I guess he’s been too busy hiring the guys who helped make a mess of McCain’s campaign to make a mess of his presidential trot. Some centrist! Some “moderate” Republican.

    • Harry Haller says

      Dear Charley James: One of my guily pleasures in life is surfing web-sites and blogs such as LA Progressive to keep my self apprised of what the left-of-center “wingnuts” are up to. Yes, Virginia, from my vantage point there ARE “wingnuts” on your side of the political ledger,as exemplified by your attempt to play “gotcha” with Minnesota Governor Tim Pawlenty. As your updated comments to your 10th Amendment article imply, Pawlenty still has failed to respond to your screed because he must have been struck dumb by the searing logic of your pronouncement that the 10th Amendment is a constitutional dead letter. A more reasonable explanation for Pawlenty’s silence is that he is simply too polite to call to your attention the profound depths of your constitutional ignorance. First, there’s the “logic” behind your alleged expertise in 10th Amendment jurisprudence. You wrote a college paper many years ago on the 10th Amendment, got an “A” and are therefore an “expert” on the subject. A fortiori, any college student writing a better-than-average essay on, say, extraterrestrial life on Uranus is qualified to teach cosmology or work for NASA. I don’t think so. Second, I see from your bio that you must have spent some time as a working reporter. I can only hope you weren’t one of those so-called journalists whose motto must have been, “never let the facts stand in the way of a good story.” If you were writing for a traditional media enterprise, I doubt your editor would have too impressed with your “research” consisting merely of one of your old college papers. Third, I can only surmise that your stellar paper was written sometime before the mid-1970s, since you seem to be oblivious to the line of U.S. Supreme Court cases interpreting the 10th Amendment starting with National League of Cities v. Usery (1976). The cases are all over the board, but stand as a whole for the proposition that the 10th Amendment is, in fact, alive under certain conditions. I don’t have the time or space to go into the details, but the cases support the notion that the federal government cannot impose duties on the states when those duties interfere with “traditional governmental [i.e., state]functions,” or where the Federales simply try to “deputize” the states to enforce federal laws. Or perhaps you don’t consider the opinions of a conservative-leaning Supreme Court the “law of the [La La] land.” So the 10th Amendment isn’t a constitutional “dead letter.” Particularly so, since liberals and/or so-called “progressives” haven’t been shy about dragging out the 10th Amendment, as well as other alleged constitutional “dead letters” such as the 9th Amendment, when they can be used to support THEIR agendas. For example, liberals had no problem using the 9th and 10th Amendments and various “penumbras and emanations” from other clauses and amendments to “discover” a constitutional right to privacy. See Griswold v. Connecticut and Roe v. Wade. Admittedly, both and left and right these days treat the Constitution like the Old Country Buffet, grazing for whatever fodder they can find to buttress their agendas. But that’s how law (and, alas, politics) is done. At bottom, Governor Pawlenty does have a leg to stand on. In conclusion, dear Charley, your homework assignment this week is to get to the library or go on-line and update your magnum opus with more current data. And stay away from the Old Country Buffet.

  3. Charley James says

    2nd UPDATE – Sept 27 – Another week’s gone by and still no reply from my governor. On such an important Constitutional issue, and since he’s taken a lead role on the subject, I’m surprised that Gov. Pawlenty hasn’t bothered to write back yet. When I hear something, I’ll let you know.


  4. Charley James says

    As soon as I can lay my hands on my long-lost paper on the 10th Amendment, I’ll send a copy to Sharon as well as to Tim Pawlenty.

  5. says

    UPDATE – Sept 20 – I’ve yet to receive any reply from Gov. Pawlenty or his office. Not surprising, I suppose; probably, he was too busy practicing his speech to the annual gathering of officially credentialled lunatics at the so-called Value Voters meeting in Washington this weekend.


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