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 failure is in defining the 2nd Amendment and enforcing that right as an individual right that cannot be infringed upon by any state.
Agreed. Nor even manipulated or modified by the federal government. The gun laws of 1934 was a serious intrusion, but as with prohibition, nobody came against it. With prohibition, the constitution was descrated twice. Once by passing the amendment, and the second time by removing it.
They are a list of restrictions on the federal government, not on the states, as Justice Marshall pointed out. Our rights don't come from the Bill of Rights, they come from God. If the supremacy clause applied the BOR to the states, then the Fourteenth amendment would not have been necessary.
Per the Tenth amendment The feds aren't supposed to be able to act outside their enumerated powers, but they have usurped powers they shouldn't have from the states and from the We, the people.
As a matter of fact, the Fourteenth amendment WASN'T necessary. It was a creative device which I refer to as the doctrine of substitution. All Congress had to do was pass an act, (or even an E.O. by the president) that freed slaves are heretofore to be considered Citizens.
That would have immediately ended the concern over the treatment, protection and acceptance of blacks and others who were in a state of political fog after the civil war, for the word, Citizen, was already defined in the Constitution.
BUT
In order to do that, the constitution would have to be amended anyway to change the definition of the word, Citizen (upper case) and to re-define the percentages of what was considered to be a full human being.
Instead, Congress went straight for the amendment, creating a substitute word, 'citizen,' (lower-case) for Citizen, and embellishing the amendment with suitable phraseology describing and acknowledging something that was similar to unalienable rights enjoyed by Citizens.
Congress can't grant unalienable rights, so it merely re-described and acknowledged them for blacks and other non-Citizens, while creating a protectorate for them to enjoy those rights and privilidges -- the Federal United States, which over-layed the union of States geographically.
I think they did the right thing under the circumstances.
But that in no way dimished the supremacy of unalienable rights, both enumerated and non-enumerated, of Citizens, IMO.
And where did I "claim" any such thing? I have no idea what "our BOR's" even means.
Ok, so if we suppose your smerging idea doesn't work, is an amendment necessary to protect traditional marriage? Or should that be left to the states?
Neither.
Ideally, all the courts have to do is acknowledge the truth of the matter -- that the word, 'marriage,' still means what it always has meant throughout history, across continents and cultures.
If the courts screw up, I would not take it lightly.
Beyond than, I sayeth no more.
Well we can't count on those bastard judges so that's why we need the damned amendment!
If the courts decree that "marriage" is limited to the union of a man and a woman, the next thing we'll see is the liberal eggheads in academia advancing the notion that "man" and "woman" aren't genders, but "social roles".
The Bill of Rights is not a "list of our rights," it is a list of restrictions on the federal government.
The Bill of Rights lists some of our rights, and it restricts the federal, state, & local governments from infringing on all of our rights, enumerated or not.
Regardless of your interpretation of the Constitution, the Bill of Rights never applied to the state governments until the passage of the fourteenth amendment.
Art VI clearly says that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding".
This is a fact, not my interpretation.
"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)
Quoting the oft refuted opinion in 'Barron' means nothing. Marshall was proved wrong in that he ignored the clear words & intent of Article VI.
I didn't think so.
Also remember, that the first gun control laws were made in some of the Southern States, I believe after reconstruction.
The Federal gov't should have knocked those laws down, but because of 'states rights'did not.
In the case of Prohibition, I believe the Constitution was not assaulted since that was a Constitutional amendment, ratified by the States.
I am not sure how the amendment was removed
Your nitpicking makes you the laughingstock, not me.
Find some real points to debate or shut up.
Exactly right.
The problem has been in seeing the Constitution as a 'living'document rather then a 'legal'document.
Thus, the liberals have been able to 'stretch'the meanings of the General Welfare Clause and Commerce Clause to push an activist agenda against individual liberty, not against states rights.
The prohibition of the sale of intoxicating liquors in the United States was repugnant to the supreme law which protects private property and the disposal and sale thereof.
What next? Cream Soda?
Destroy the meaning of the word 'marriage'and you have destroyed civilization itself.
No other insitution is as important to a society as marriage, that is why the Left has attacked it with easy divorce laws and now homosexual 'marriage'
I was not speaking of the merits of prohibition, just that it did follow a constitutional procedure, that showed the majority of states (people) wanted it.
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? --- Why do you claim that States have the power to ignore our BOR's & the 14th Amendments due process clause?
And where did I "claim" any such thing?
You've claimed on this thread that States, in effect, can ignore due process in writing laws that infringe upon our 2nd Amendment.
Now you claim you did not? -- Get real. Anyone can read your posts claiming that States are not bound to honor our BOR's
I have no idea what "our BOR's" even means.
Is that another of your word-game comments, or are you really flipping out?
I believe that's the bottom line. A form of 'civilization' would rise from the ashes, but not one that I would want to be a part of.
The Constitution's Article VI is my source, -- as you well know, but cannot admit.
I agree, you think very seldom.
He once opined that he had no idea what a "correct" interpretation of the Commerce Clause was. I provided him with an example, but he didn't care for it much.
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