[S]tephen Kiernan wants Vermonters to assert themselves.
And just what does he think they’ve been doing lo these many years?
But he has a specific kind of self-assertion in mind. He’s not just talking about individuals. He wants the state as an entity to exploit its “powers independent of Washington.” The federal government, he thinks, is “in a period of collapse.” Just the right time to transform Vermont into “a laboratory of innovative ideas,” to conduct a discussion about “new methods of engaging Vermonters in determining the fate of this small, beautiful place where we are fortunate enough to live.”
To start that discussion, he has written an 8,500-word manifesto called “Vermont to the Tenth Power.” It’s available online, where anyone can read it, comment on it, and join the dozens who have co-signed it, even without endorsing “every word and detail.”
On their credentials alone Kiernan and his co-signers deserve a hearing. He’s a respected novelist and journalist, once a prize-winning investigative reporter at the Burlington Free Press. His co-signers include writers Jay Parini, Chris Graff and Chris Bohjalian; former Burlington Mayor Peter Clavelle; former Attorney General William Sorrell. An impressive group.
And in many ways an impressive document. Kiernan makes valid points: about how majority rule is often subverted by money, gerrymandering and obstacles to voting; about how powerful interests can block policies supported by 75% or more of the voters; about Vermont’s failure to address some of its worst problems (such as an alarming suicide rate) and its lack of anything resembling long-range strategic planning.
Impressive but not error-free. He says only 36% of the eligible electorate voted in the 2016 presidential election. More than 60% did, according to the U.S. Election Project.
But you try writing 8,500 words without a mistake. Nitpicking is easy and pointless. Yes, Kiernan’s opus is short of specifics. “Where is Vermont’s Green New Deal?” he asks, without providing a single carbon-reducing suggestion. Yes, he offers scores of recommendations, which might be worthwhile (more help for “struggling dairy farms,” free community college tuition) but which would cost money.
Anything about how to pay for it? Not his department.
But that’s OK. This is not a policy proposal. It’s a call to arms, a hortatory summons to create an “activist state government” to convince Vermonters to undertake “a deliberate assertion of state powers, independent of a federal government that is increasingly hamstrung and feckless.”
As any leader of a movement would, Kiernan has a flag around which his followers can rally. A device. A hook. It’s embedded in the title of his manifesto. That hook is the 10th Amendment to the U.S. Constitution, the one that reserves “to the states” those powers “not delegated (to the federal government) by the Constitution.”
As devices go, this one is dubious.
Kiernan thinks Vermont should make Election Day a state holiday, and pointed out that “if South Carolina can use the Tenth Amendment to observe a paid day off for Confederate Memorial Day, Vermont can certainly establish a state holiday on election day.”
But South Carolina didn’t need the 10th Amendment to create its holiday
“States have the power to declare a state holiday and that power does not depend on the Tenth Amendment,” said Vermont Law School Professor Peter Teachout (via email). “States may exercise what is called ‘the police power’ to adopt laws to protect and promote the health, safety, and welfare of the people.”
They don’t need the 10th Amendment to exercise those powers, Teachout wrote. “Vermont has the power to adopt the laws that Kiernan wants the state to adopt unless or until Congress passes some law … preempting state regulation of that particular area.”
Or in the words of another lawyer (who for professional reasons did not want to be identified) “Vermont can do whatever it wants to do as long as it doesn’t violate the (U.S.) Constitution.”
Nor would invoking the 10th Amendment allow Vermont to enact stronger campaign finance laws, as Kiernan appears to favor. The U.S. Supreme Court’s Citizens United decision (2010) nullifying laws against corporate and union political donations was based on First Amendment free speech rights, which apply everywhere.
The 10th Amendment, in short, is much ado about little, except to an extreme right-wing fringe (“Tenthers”) who want the federal government to do almost nothing.
This is not a personal opinion. It’s the unanimous decision of the Supreme Court (U.S. v Darby, 1941) in which the justices declared the 10th Amendment “a truism,” which the dictionary defines as “a statement that is obviously true and says nothing new or interesting.”
The 10th Amendment has been “invoked” in a couple of recent Supreme Court rulings, Teachout noted. But it was not the basis of those decisions. It has been effectively inconsequential since the Supreme Court recognized the Constitution’s grant of “implied powers” to the federal government. That was in 1816.
Then there’s the danger of getting what you wanted. Pamela Vesilind, a visiting assistant professor of law at Vermont Law School, said “I love the enthusiasm of Mr. Kiernan’ proposal,” but also warned that “promoting states and shrinking federal authority” could produce results many Vermonters – probably including Kiernan – would not like.
None of this invalidates Kiernan’s project. Every idea has its potential snag, and a war cry need not be taken literally to be effective. But he has unfurled a banner with a strange device, or a confusing motto, which could complicate his effort to create “a convening authority, an independent entity” to begin transforming his manifesto into a set of policy proposals.
He doesn’t say how he (or someone else) would select members of that authority, or what would make it credible. But it’s early in this conversation, and Kiernan deserves credit for starting it. Maybe he should have chosen a different hook.
