The 10th Amendment was never repealed, de facto or de jure The power delegated to the federal government was significantly expanded by amendments to the Constitution following lincoln's illegal war and the states became legally subject to the final dictates of the federal government; hence the de facto repeal of the Tenth Amendment.
Today it is more honored in the breach than in observance
That would be, in effect, a de facto repeal.
but the reason is not Lincoln.
Most honest historians will disagree with you:
In 1831, long before the War between the States, South Carolina Senator John C. Calhoun said, "Stripped of all its covering, the naked question is, whether ours is a federal or consolidated government; a constitutional or absolute one; a government resting solidly on the basis of the sovereignty of the States, or on the unrestrained will of a majority; a form of government, as in all other unlimited ones, in which injustice, violence, and force must ultimately prevail." The War between the States answered that question and produced the foundation for the kind of government we have today: consolidated and absolute, based on the unrestrained will of the majority, with force, threats, and intimidation being the order of the day.
Lincoln did not fight the bloodiest war of the nineteenth century, against his own people and at a cost of 620,000 American lives, to free the slaves. He fought it to set a precedent of federal supremacy over the states. And in the process turned his apparent belief that the ends justify the means into federal dogma.
The reason is that states are far too eager to feed at the Federal money trough, for them to object to any conditions Big Government might put on taking its "free goodies".
The real reason is lincoln's consolidated and absolute government.
Before states can enforce the 10th Amendment, they must first be willing to turn down Federal "free money". Do you know of any who routinely do that?
How can they when they're under the thumb of lincoln's consolidated and absolute government?
cowboyway:
"The power delegated to the federal government was significantly expanded by amendments to the Constitution following lincoln's illegal war and the states became legally subject to the final dictates of the federal government; hence the de facto repeal of the Tenth Amendment." Rubbish.
First of all, the Tenth Amendment never abrogated Article VI:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
Second, the Tenth Amendment has been upheld by the US Supreme Court on occasion:
- "In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment."
- "In 1997, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)).
The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns.
Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment.
Since the act "forced participation of the State's executive in the actual administration of a federal program", it was unconstitutional."
- "In United States v. Lopez 514 U.S. 549 (1995), a federal law mandating a "gun-free zone" on and around public school campuses was struck down because, the Supreme Court ruled, there was no clause in the Constitution authorizing it.
This was the first modern Supreme Court opinion to limit the government's power under the Commerce Clause.
The opinion did not mention the Tenth Amendment..., "
- "The federal system limits the ability of the federal government to use state governments as an instrument of the national government, as held in Printz v. United States, 521 U.S. 898 (1997). "
But the Supreme Court will only go so far:
- "Several states have introduced various resolutions and legislation in protest to federal actions.[8]
Despite this, the Supreme Court has explicitly rejected the idea that the states can nullify federal law.
In Cooper v. Aaron (1958), the Supreme Court of the United States held that federal law prevails over state law due to the operation of the Supremacy Clause, and that federal law "can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes . . ."
Thus, state laws purporting to nullify federal statutes or to exempt states and their citizens from federal statutes have only symbolic impact."
- State sovereignty resolutions ("10th Amendment resolutions")
"These resolutions attempt to reassert state sovereignty over any area not listed among the "enumerated powers" (i.e., any law based on an "expansive reading" of the Commerce Clause, the Necessary and Proper Clause, or the Supremacy Clause would, according to this resolution, be invalid).
- "During 2009, "state sovereignty resolutions" or "10th Amendment Resolutions" were introduced in the legislatures of 37 states; in seven states the resolutions passed (Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee).
- "During 2010, resolutions were introduced or reintroduced into the legislatures of 21 states; the resolution passed in seven states (Alabama, Arizona, Kansas, Nebraska, South Carolina, Utah, and Wyoming).[9][10]
- "A state sovereignty resolution has been prefiled for the upcoming 2011 session of the Texas Legislature (a prior 2009 resolution did not pass)."
Point is: the Tenth Amendment is alive and well, and the issue is, in what cases does it apply?
So the real State Sovereignty problem is that States are unwilling to turn down Federal funds which come with strings attached.
They would rather take the money and comply with Federal rules.
Regardless, none of this has anything to do with Honest Abe Lincoln.
cowboyway: "Lincoln did not fight the bloodiest war of the nineteenth century, against his own people and at a cost of 620,000 American lives, to free the slaves.
He fought it to set a precedent of federal supremacy over the states.
And in the process turned his apparent belief that the ends justify the means into federal dogma."
That is such rubbish, only a devoted propagandist would believe a word of it.
The Constitution itself established Federal supremacy, and gave the Government powers necessary to repel invasions, suppress rebellions, defeat insurrections, etc.
Lincoln simply enforced the Constitution.
His new Constitutional amendments simply corrected some of the wickedness which led to the slave-holders' rebellion.