Posted on 10/28/2004 6:03:10 PM PDT by tpaine
I. The Tenth Amendment and Enumerated Powers
The Tenth Amendment states: "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."
By its terms the amendment tells us nothing about which powers are delegated to the federal government, which are prohibited to the states, or which are reserved to the states or to the people. To determine that, we have to look to the centerpiece of the Constitution, the doctrine of enumerated powers.
That doctrine is discussed at length in the Federalist Papers. But it is explicit as well in the very first sentence of Article 1, section 1, of the Constitution ("All legislative Powers herein granted . . .") and in the Tenth Amendment's reference to powers "not delegated," "prohibited", and "reserved."
Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally--through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim.
What the Tenth Amendment says, in a nutshell, is this:
if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government.
At bottom, then, the Tenth Amendment is not about federal vs. state, much less about federal-state "partnerships," block grants, "swapping," "turnbacks," or any of the other modern concepts of intergovernmental governance. It is about legitimacy.
As the final member of the Bill of Rights, and the culmination of the founding period, the Tenth Amendment recapitulates the philosophy of government first set forth in the Declaration of Independence, that governments are instituted to secure our rights, "deriving their just powers from the consent of the governed."
Without that consent, as manifest in the Constitution, power is simply not there.
It is the doctrine of enumerated powers, then, that gives content to the Tenth Amendment, informs its theory of legitimacy, and limits the federal government. Power is granted or delegated by the people, enumerated in the Constitution, and thus limited by virtue of that delegation and enumeration.
The Framers could hardly have enumerated all of our rights--a problem the Ninth Amendment was meant to address.
They could enumerate the federal government's powers, which they did to restrain that government. The doctrine of enumerated powers was meant to be the principal line of defense against overweening government. The Bill of Rights, added two years after the Constitution was ratified, was meant as a secondary defense.
Yet today the federal government exercises powers not remotely found in the Constitution, leading lawyers and laymen alike to say, increasingly, that those powers are illegitimate. How then did we get to this point, where the federalism debate is increasingly a debate about the very foundations of our system of government?
I have discussed that question at length elsewhere. Let me simply summarize the answer here, then turn to an issue that seems to concern the subcommittee, and not without reason--the connection, historically and prospectively, between federalism and "states' rights."
II. The Demise of the Doctrine of Enumerated Powers
Our modern regulatory and redistributive state--the state the Framers sought explicitly to prohibit--has arisen largely since 1937, and primarily through just two clauses in the Constitution, the Commerce Clause and the General Welfare Clause respectively. It is striking that this is so, for if the Framers had meant for Congress to be able to do virtually anything it wanted through those two simple clauses, why would they have bothered to enumerate Congress' other powers, much less defend the doctrine of enumerated powers throughout the Federalist Papers?
That is the question that cries out for explanation.
The explanation, of course, is that the Framers intended no such thing. The modern state arose through judicial legerdemain, following Franklin Roosevelt's notorious 1937 Court-packing scheme.
In a nutshell, the Commerce Clause, which gives Congress the power to regulate commerce among the states, arose out of concern that the free flow of commerce among the states might break down if states, as under the Articles of Confederation, had the power to erect protectionist measures on behalf of indigenous enterprises. Thus, its principal aim was to ensure the free flow of commerce by giving Congress the power to regulate, or make regular, such interstate commerce.
Not remotely did the Framers intend that the clause would be converted from a shield against state abuse--its use in the first great Commerce Clause case, Gibbons v. Ogden -- into a sword, enabling Congress, through regulation, to try to bring about all manner of social and economic ends.
Yet today, following the Supreme Court's reversal in 1937, that is just what has happened as Congress claims power to regulate anything that even "affects" interstate commerce, which in principle is everything.
The General Welfare Clause of Article 1, section 8, was also intended as a shield, to ensure that Congress, in the exercise of any of its enumerated powers, would act for the general rather than for any particular welfare.
Here, however, Hamilton stood opposite Madison, Jefferson, and others in thinking that the clause amounted to an independent, enumerated power--albeit limited to serving the general welfare. But as Congressman William Drayton noted in 1828, if Hamilton were right, then whatever Congress is barred from doing because there is no power with which to do it, it could accomplish by simply appropriating the money with which to do it.
That, of course, is precisely what happened, which the Court sanctioned when it came down on Hamilton's side in 1936, then a year later went Hamilton one better by saying that although the distinction between general and particular welfare must be maintained, the Court would not itself police that distinction.
Congress, the very branch that was redistributing with ever-greater particularity, would be left to police itself.
With the Court's evisceration of the doctrine of enumerated powers, the modern regulatory and redistributive state poured through the opening. One result of the subsequent explosion of federal power, of course, was the contraction of state power where the two conflicted--and the attendant federalism dilemmas.
At the same time, individual liberty contracted as well--the preservation of which was supposed to be the very purpose of government.
And finally, questions about constitutional legitimacy never did go away. As government grew, the idea that a Constitution designed for limited government had authorized that growth of power became increasingly difficult to sustain.
III. Federalism and "States' Rights"
But what about the sorry history of "states' rights" as a doctrine that southern states invoked by way of defending slavery and then, after the Civil War, the reign of Jim Crow? Does this not give weight to the question, "Why doesn't Washington trust the states?" Indeed it does, but here too there has been substantial misunderstanding over the years, with a seminal Supreme Court case at its core.
The tragic compromise that led the Framers to accept slavery in their midst is well known. It took a civil war to abolish that institution, and the Civil War Amendments to secure the legal rights of the freed slaves.
Unfortunately, no sooner had those amendments been ratified than the principal vehicle for insuring substantive rights against state action, the Privileges and Immunities Clause of the Fourteenth Amendment, was eviscerated by a deeply divided Court in the Slaughter-House cases.
The clause has never been successfully revived.
On Blackstone's view, the clause referred to our "natural liberties." The Civil Rights Act of 1866, which Congress reenacted in 1870, just after the Fourteenth Amendment was ratified, made it clear that the clause was meant to protect the very rights Jim Crow went on to deny.
The demise, then, of the Privileges and Immunities Clause had nothing to do really with the Tenth Amendment or the doctrine of enumerated powers. It was a blatant case of judicial abdication that eviscerated the clause, thereby leaving the freed slaves in the South to the mercies of state legislatures.
Nor is there anything in current efforts to revive the Tenth Amendment and the doctrine of enumerated powers that should give pause--provided only that we are clear, and the judiciary is clear, that the Fourteenth Amendment gives the courts, through section 1, and the Congress, through section 5, the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States.
Were the Congress to move to do that, the promise of the Civil War Amendments would at last be realized, not in opposition to federalism, but in harmony with it as perfected through those amendments.
The Bill of Rights is not a "list of our rights," it is a list of restrictions on the federal government.
Regardless of your interpretation of the Constitution, the Bill of Rights never applied to the state governments until the passage of the fourteenth amendment.
The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated...In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments demanded security against the apprehended encroachments of the general government--not against those of the local governments.
In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them. - Chief Justice Marshall Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)
Silly you. You are already in jail and don't know it.
That is exactly what the 'homosexuals' are attempting to do.
Now there are only two courses open, since if a state recognizes a union of this sort as a 'marriage' all states must also accept that recognitation.
One, outlaw it on the state level as is polygymy (which won't happen-but should) or two, define marriage on the federal level so that no state can redefine it.
The point is that the federal level must protect all states from one state abusing the union we have among ourselves.
And the state constitutions must be consistent with the Federal one.
Ofcourse not.
We are talking about checks and balances.
On a practical level, local crimes are dealt with locally.
However, a murder must be considered a crime in every state, no state can pick and choose to ignore a murder and redefine the term to mean what it wants to e.g. it is not 'murder' to kill deformed infants.
The question we are dealing with here one of checks and balances, not the extent of gov't involvment in our lives.
The role of gov't is to protect the individuals freedom and that includes all arbitrary actions by all levels of gov't including local and state.
We can go to any of the 50 states and find the same judical system in place, the same need for search warrents, the same jury system, etc because of the federal system.
from the article:
At bottom, then, the Tenth Amendment is not about federal vs. state, much less about federal-state "partnerships," block grants, "swapping," "turnbacks," or any of the other modern concepts of intergovernmental governance. It is about legitimacy.As the final member of the Bill of Rights, and the culmination of the founding period, the Tenth Amendment recapitulates the philosophy of government first set forth in the Declaration of Independence, that governments are instituted to secure our rights, "deriving their just powers from the consent of the governed."
Without that consent, as manifest in the Constitution, power is simply not there.
It is the doctrine of enumerated powers, then, that gives content to the Tenth Amendment, informs its theory of legitimacy, and limits the federal government. Power is granted or delegated by the people, enumerated in the Constitution, and thus limited by virtue of that delegation and enumeration.
The Framers could hardly have enumerated all of our rights--a problem the Ninth Amendment was meant to address. They could enumerate the federal government's powers, which they did to restrain that government. The doctrine of enumerated powers was meant to be the principal line of defense against overweening government. The Bill of Rights, added two years after the Constitution was ratified, was meant as a secondary defense.
Today we need that secondary defense because enumerated powers has been abandoned in the face of rampant nationalism.
Well, the reason no state cannot is because of the Federal system that is in place.
The states are under the authority of the Federal gov't to do so.
Therefore the point you were attempting to make; -- 'that IF it could be proved that life [personhood] began at conception then the Federal gov't would have an obligation to defend it', -- is moot, -- considering that no live person can be proved to exist until some time after conception.
I think the way to have handled the abortion issue was to approach it from a different angle.
The question is not wheather or not the fetus is 'human life' but who is deciding that it is.
In other words, the woman is being allowed to define something as being human or not based on her own subjective desires.
That is why the feminist movement fights so fiercly for abortion 'rights' it makes the woman a 'goddess' deciding what is life or not.
We have seen a woman who is pregnant who wants the baby describe it as such even though she is less then a month pregnant.
If she doesn't want the baby then it becomes a 'fetus'.
The Court should have ruled that since no objective standard of life can be made, no subjective one can be allowed either.
But the point was not abortion, but rather the issue of powers between the states and federal gov't and how each one protects freedom in its own way.
No state could allow the murder of killing infants a day old due to deformity for example and then claim 'states rights'.
The Feds are limited in when they can enter into a state legal matter.
They must wait until it makes it way to the Federal court.
Now, with the Bill of Rights, there should a consistent protection in all 50 states.
In terms of the 2nd Amendment, the problem is we have not had a pro-2nd Amendment Supreme Court that sees that all restrictions on gun ownership violates that right.
We should have the same rights as Vermont (of all states!) which has a right to carry with no permits necessary.
The failure is in defining the 2nd Amendment and enforcing that right as an individual right that cannot be infringed upon by any state.
It was based on this reasoning that the GOP congress sought to remove the gun ban in DC (since Congress oversees the DC gov't) stating it was an infringment on individual liberty.
Here was your "on point" answer that you were referring to:
"To paraphrase what Justice Harlan once said:
--- 'The full scope of the liberty guaranteed by the Privilege & Immunities Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. ...'"
In reality, Harlan was talking about the "due process" clause, not the P&I clause. But of course, facts absolutely don't matter to you. All you care about is whether something sounds vaguely good enough that you can just assume it means whatever you want it to mean. And you wonder why you're the laughingstock around here?
Again the issue is not 'nationalism' vs 'localism', the issue is the individual vs the state, all states, local, state and federal.
The Federal gov't is trying to overthrow a gun ban in DC as being an infringment of individual rights.
In the Alaska debate, the question was asked, would the Senate candidates support such action. The GOP candidate did, but the Democrat (who stated he supported the 2nd Amendment) then made an appeal to the right of 'local control'.
The point is that each level of gov't must defend individual rights and each is a threat to the same because each has power it can use against the individual.
The cry of 'states rights' is a misleading one since 'states' can be just as abusive of individual freedoms as the federal gov't.
In fact Madison's appeal for a federal gov't was that a larger gov't was less likely to be corrupted then a small one.
The flip side, however, is that it's also harder to un-corrupt it once corruption sets in.
Well, that would protect the word 'marriage,' but in either case it would be denying some people due process. The due process I refer to is following the proper rules for gaining legal access and recognition.
If the attempt fails, as I mentioned it might, at least the group cannot claim deprivation of rights or denial of due process. Let the people decide. Not the courts or Congress. Else we're going to have a group of some very unhappy people out there who are going to feel dis-enfranchised. We have a system that will insure equality to all. Give them an opportunity to use it, without destroying the meaning and institution of marriage.
Maybe in another hundred years, the people might get used to the idea of homosexual 'relationships' and regard them on par to married folks and the Jim and Jim Crow laws will fade into oblivion. ;>
I've suggested in the past they use another word to describe their relationship. Even a fabricated word, such as 'smerge,' for instance. If they want to get smerged, let them get smerged and live in a state of smergiage. If they want to smerge each other and be on legal par with similar partnerships, let them push for an amendment that will recognize and ackowledge their class as smerged folks.
Any more than anti-polygamy laws violate due process?
Our modern regulatory and redistributive state--the state the Framers sought explicitly to prohibit--has arisen largely since 1937, and primarily through just two clauses in the Constitution, the Commerce Clause and the General Welfare Clause respectively. It is striking that this is so, for if the Framers had meant for Congress to be able to do virtually anything it wanted through those two simple clauses, why would they have bothered to enumerate Congress' other powers, much less defend the doctrine of enumerated powers throughout the Federalist Papers?The corruption of the meaning of the Constitution and the supremacy of a national government which has usurped powers not granted to it by consent of the governed has resulted in less liberty for all Americans. Those who feel they can improve upon the Constitution as intended by the Founders are invariably mistaken.The explanation, of course, is that the Framers intended no such thing. The modern state arose through judicial legerdemain, following Franklin Roosevelt's notorious 1937 Court-packing scheme.
With the Court's evisceration of the doctrine of enumerated powers, the modern regulatory and redistributive state poured through the opening. One result of the subsequent explosion of federal power, of course, was the contraction of state power where the two conflicted--and the attendant federalism dilemmas.
At the same time, individual liberty contracted as well--the preservation of which was supposed to be the very purpose of government.
Correct. If ten people (regardless of gender) want to get 'unioned,' let them create a word to describe their relationship and try to get an amendment passed that would recognized their class and afford them protection under the Civil Rights Act.
(Jeez, I was hoping everyone would understand what I was implying -- that such an amendment would not pass, but the process would be there for those who chose to pursue their folly and would thereby be unable to claim deprivation of rights.)
Seems to me the intention to apply them was de facto resident in Article VI, para 2.
In that the BOR is regarded as part and parcel of the Constitution itself, it is regarded as the supreme law of the land. Therefore, anything in any State constitution which is contrary to the BOR is repugnant. For what are the Bill of Rights, if they are not the rights of the individual? Certainly not the rights of the state or federal government.
The BOR is supreme over the repugnancies of congress (laws congress passes which are not in pursuance to the BOR), over laws based upon treaties, over any court decision, and definitely supreme over any state law or state constitutional provision. The states ratified the federal constitution and agreed to that proviso by their ratification of it.
And if that is not the way it is, it will be the next time around.
In the sense that all of our rights, liberties, privileges & immunities, and life itself can be taken away by Constitutional due process of law, paulsen, --- yes.
I doubt that even you can dispute that.
Now again, answer the question..
-Why- do you see requiring due process as being "perverted"?
It makes no sense to want a State to have the power to ignore due process.
What kind of a statement is that? Geez, tpaine, it also makes no sense to WANT a State to have the power to torture little kittens, either.
Exactly right paulsen, it makes no sense, so why do you claim that States have the power to ignore our BOR's & the 14th Amendments due process clause?
It's perverted to find some subjective "fundamental right to liberty" covered by the due process clause of the 14th amendment and then to selectively apply portions of the BOR to the states.
You're merely chanting "its perverted".. Can you tell us why?
This process gave us abortion, sodomy, nude dancing, and a host of other inexplicable and twisted decisions made by a judicial oligarchy.
That's your delusion, not a factual comment.
You're saying that a "citizen of the United States", not even a citizen of a state, has the RKBA?
Millions of US Citizens did, & still do, -- in all territories of the USA.
Sheesh. That gives them more rights than an Illinois citizen living in Chicago.
Exactly one of my points. -- 'Equal protection' means that all citizens should have an uninfringed RKBA's, irregardless of which state or territory they happen to be passing through.
Our present day mishmash of local/state/fed gun 'laws' are a Constitutional nightmare. -- One you advocate. -- Why is that true?
Some become so enamoured of having the federal government enlist in their pet cause they will corrupt the meaning of "consent of the governed" so as to deny that there has been an usurpation.
I believe this is what Heinlien described as a "Line Marriage" (from The Moon is a Harsh Mistress, IIRC).
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