Taking the Oath

On January 13, 2010, in a Capitol building whose blueprint was provided by Jefferson, 100 Delegates and 40 Senators took the oath of office to serve this great Commonwealth. For those of you who don't know, we pledge to support the Constitution of the United States and the Constitution of Virginia.

The modern Constitution of Virginia was ratified in 1971 and includes several significant clauses. Article VIII, for example, requires the General Assembly to provide for a free system of public elementary and secondary school education, and directs the General Assembly to "seek to insure that an educational program of high quality is established and continually maintained." I am very concerned about the cuts which this Governor will propose and believe we should take our constitutional responsibility very seriously.

There is no specific requirement that assistance be provided to institutions of higher education, though the Constitution states that the General Assembly "may provide the establishment, maintenance, and operation of any educational institutions...." When I examine higher education funding, which has been cut by almost 25 percent over the last several years, I become greatly concerned about our commitment to these institutions. Cutbacks will likely lead to lower quality, tuition increases, or both.

Similarly, the cut-back in funds for community colleges has required the tripling of tuition over the last ten years. In other words, when the state cuts, there is a financial impact. In some cases, citizens pay, for instance, in the form of higher tuition. And when the state cuts aid to localities or schools-as will almost assuredly occur given Governor McDonnell's statement that he will not approve any new revenues-our local officials will either need to trim services, raise taxes, or both.

Another constitutional article which does not get much publicity is Article XI, which states that it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historic sites and buildings, ......and "to protect its atmosphere, lands, and waters from pollution, impairment, or destruction......" There are few states in the country that have such a conservation article directly imbedded in its constitution, and it requires us to look carefully at our investments in this area to preserve our water, clean up our air, and protect our historic areas.

While much of this session will focus on budgetary issues, one of the debates which will undoubtedly occur in this Session will surround the 10th amendment to the United States Constitution. Ratified in 1791, this amendment states 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 the people." This amendment has recently been seized upon by conservative activists to argue that the Federal Government is without the authority to pass health care and other legislation that may impact the states. This is not a new argument, but it rarely has been effective in challenging Federal legislation. There have been only two cases of any consequence in which a 10th Amendment challenge has prevailed since the 1930s, and most scholars believe that the 10th Amendment is limited to areas where the Federal government might specifically direct a state legislature or state and local officials to do specific things that the Congress demands, and that legislation that provides an incentive, as opposed to a mandate, to the states, will pass constitutional muster.

Our new Attorney General says he intends to mount a 10th Amendment challenge to a number of the initiatives coming out of Washington. Most scholars believe that health care legislation designed to reduce health care costs or provide care for those who don't have it would be strictly construed within the purview of the commerce clause of the Constitution and therefore upheld. But conservatives intend to marshal many arguments to defeat health care and this is one of them.

During this session, I will continue advocating for adequate education funding and support for our environment. While the debates and issues before us may be difficult, it remains an honor to serve as your Delegate. I am eager to hear your input on the bills and proposals before the General Assembly. Please feel free to contact my office here in Richmond by phone or email: (804) 698-1057, deldtoscano@cstone.net.

Sincerely,

David J. Toscano