The third thing Lee did not mention is that nothing in the Constitution anywhere says that regulation of shipment of child-produced goods in interstate commerce "has to be done by state legislators, not by Members of Congress." In fact, he cannot point to anything in the text of the Constitution that was "was designed to be a little bit harsh."

The harshness is in his head.

Lee is a "Tenther," part of a new extremist movement that seeks to brand all major federal legislation -- not only labor regulation, but environmental laws, gun control laws, and Social Security and Medicare -- as violations of the "rights" of states as supposedly spelled out in the Tenth Amendment. Senator Jim DeMint last year phrased it this way: "the Tenth Amendment says powers not explicitly given to the federal government in the Constitution go to the states or to the people."

Is he right? Let's look at the text, which reads, in its entirety:

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.

Notice that DeMint, like a lot of "Tenthers," managed to sneak a word in that the Framers didn't write.

The word is "explicitly." Nothing in the Tenth Amendment says that powers -- such as power to regulate child labor as part of commerce, for example -- must be explicitly or expressly given to the federal government. Compare the language of the Articles of Confederation:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

When the First Congress adapted this repealed provision as an amendment to the new Constitution, a few important words didn't make the cut. The Articles were familiar to every member of the First Congress. It seems hard to believe that they meant to copy the language but accidentally left some of it out.

What does the omission of the word "expressly" suggest?

Since the Amendment was adopted, constitutional thinkers have concluded that the express powers delegated to the federal government by the Constitution necessarily carry with them the "implied" powers needed to carry them out.

If "implied power" sounds like tricky lawyer talk, ask yourself the following question: Is the American flag unconstitutional? The Constitution doesn't make any reference to a national flag. By the "express" argument, states and only states would retain what we might call "the flag power." The U.S. Army would have to march under a congeries of the fifty state flags, depending on the origin of each unit. That would be cumbersome, confusing, and dangerous -- and more to the point, stupid. Congress can "raise and support armies." A country that has an explicit power to raise an army has the implied power to designate a flag. Nobody seriously reads a Constitution any other way.