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.
Do you consider local laws establishing "dry" counties to be unconstitutional, or municipal ordinances banning the sale of fireworks? I think the part I'm questioning is the assertion that the right to the "pursuit of happiness" encompasses an unrestricted right to the sale and disposal of personal property.
Agreed. Well, ftD, we are both in the right place here, as restoration of our government is the primary concern of JimRob and most of us here on FR. At the present moment we have the election and terror war on the front burner and it's getting more difficult to drain the swamp.
But it is good to keep refreshing ourselves from time to time.
And in that vein, I would like to express my appreciation to everyone on this thread for their considered responses and input. It has been a day worth living for a change. I've gained much. Thank you all.
That is about as historical as I'm going to get right now
Your logic trumps even your grasp of our history. Well said.
Let the robertpaulsen type bozos of FR read your words and weep for their ignorance.
As Marshall explained, because state governments were already in place in the 1780's, the dominant purpose of the Constitution was to create, yet limit, a new central government. "limitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by the instrument"-that is, the federal government. Though he did not cite it by name, Marshall seems to have had in mind here the sweeping dictum ofThe Constitution is the Supreme Law of the Land, but the Constitution clearly delinates between the powers of the state and federal governments. The Bill of Rights did not apply to the states just because it was part of the Constitution. State laws cannot violate restrictions that were placed only on the federal government.
Hamilton's Federalist No. 83: "The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer."Close inspection of the original Constitution confirms the soundness of the Hamilton-Marshall rule of construction. In Article I, Section 9, for example, we find a purely general prohibition akin to the takings clause in its language and logic: "No Bill of Attainder or ex post facto Law shall be passed." Yet as Marshall forcefully noted, this general prohibition limits only the federal government; hence the framers' inclusion of a separate clause explicitly limiting states, in Article I, Section 10: "No State shall ... pass any Bill of Attainder or ex post facto Law." The absence of any similarly explicit language limiting states in the takings clause cut strongly against Barron's claim. Had the framers of the clause meant to limit states, wrote Marshall, "they would have declared this purpose in plain and intelligible language," like the "No State shall" phrasing of Article I, Section 10.But does not the language of the First Amendment cut exactly the other way, suggesting that where the Bill of Rights aimed at limiting only the federal government, it used an explicit word like "Congress" to signal that intent? Once again, Marshall offered a careful parsing of Article I, Section 9 to drive home his point: "Some of [the clauses in this section] use language applicable only to congress: others are expressed in general terms." If the word "Congress" in the First Amendment could justify applying the takings clause and other general wording in the Bill of Rights to the states, then the same should hold true for Article I, Section 9: the words "the United States" in the Section 9 clause-"No Title of Nobility shall be granted by the United States"-should logically imply that the general wording of the attainder and ex post facto clause of Section 9 applied against the states. Yet as we have seen, the Constitution plainly suggests otherwise. Marshall saw the language of Section 9 as especially relevant because it was "in the nature of a bill of rights," as various Federalists had pointed out during the ratification period to counter Anti-Federalist concerns about the apparent absence of such a bill in the original Constitution.
The legislative history of the Bill of Rights confirms that its framers and ratifiers did so rely. Various state conventions endorsed amendments limiting the new central government, some phrased in general language, others using words explicitly targeted at the central government-"Congress," the "United States," and so on. Yet no one ever suggested that the general language, simply because of its juxtaposition with other clauses worded differently, would limit state governments as well. When Madison distilled these endorsements into his own list of proposed limitations, he suggested that most of these limitations be inserted in Article I, Section 9. Following the rule of construction implicit in that Article, he used general language and explicit references to Congress indiscriminately. The proposed location of these clauses made it clear that, however worded, they applied only against the federal government.
In state convention after state convention in 1787- 88, Anti-Federalists voiced loud concerns about a new, distant, aristocratic, central government that was being called into existence. [40] Many ultimately voted for the Constitution only because Federalists like Madison promised to consider a Bill of Rights soon after ratification. Madison of course kept his word, and knew that if he had not, states' rightists might have called a second constitutional convention to repudiate the basic structure of the Constitution he had labored so hard to build. In short, without the good will of many moderate Anti-Federalists, prospects for the new Constitution looked bleak in 1787-88; and a Bill of Rights was the explicit price of that good will. But the Bill of Rights that Anti-Federalists sought was a Bill to limit the federal government-not just for the sake of individual liberty, but also to serve the cause of states' rights. Madison and his fellow Federalists could hardly have placated their critics, or won over their skeptics, by sneaking massive new restrictions on states into apparently innocuous general language. Nor would Anti-Federalists in Congress or in states have knowingly allowed such a trojan horse though the gates. Madison did openly advocate a small number of additional restrictions on states-clearly labeled as such in a package wrapped in the words "No State shall"-but even that modest proposal was too much for a Senate jealously guarding states' rights. - LINK
Those are good questions, tacticalogic. I'm bookmarking this thread for later. I just feel the need to spend some time on the other threads to bash some demodummy heads for a while. Thanks for your remarks and questions. Later. :>
Thanks for posting this today, tpaine. Later.
Have fun. We'll see you around, I'm sure. Leave some for the rest of us.
And your source as to the intent of Article IV?
141 Tailgunner Joe
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Words have meaning.
The framers wrote in Article VI 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. 146 tpaine
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What have you proved by quoting Hamilton, joe?
If anyone here can wade through his tortured syntax, they might agree with me that he supports my position more than he supports yours.
157 tpaine
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Joe replies:
--- The Constitution is the Supreme Law of the Land, but the Constitution clearly delinates between the powers of the state and federal governments.
The Bill of Rights did not apply to the states just because it was part of the Constitution.
State laws cannot violate restrictions that were placed only on the federal government.
164 Joe
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Joe, nothing you have posted rebuts the plain clear words of Article VI of our Constitution.
The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary.
Give it up.
Unlike state ratifying conventions, Madison believed that additional restrictions in favor of liberty should also be placed on state governments and said so on the floor of the House; but even more important for our purposes, he proposed a constitutional amendment that used explicit language to communicate this idea-the very same explicit language that John Marshall seemed to be asking for in Barron: "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." Moments earlier, Madison had proposed that the following general language be inserted into Section 9: " N or shall the full and equal rights of conscience be in any manner, or on any pretext, infringed ... and the freedom of the press ... shall be inviolable." Had this general wording, taken alone or in juxtaposition with references to Congress in nearby clauses, been understood to apply to states, Madison's "No state shall" proposal would have been horribly repetitive, eligible for inclusion in the department of redundancy department. What's more, in limiting its list of rights that "No State shall" abridge to press, conscience, and juries, Madison's wording clearly suggested under the principle of expressio unius that states could do other things prohibited by the general language of his proposed Section 9 insert. That general language, for example, prohibited both establishment of religion and infringement of conscience. Madison's "No State shall" list included the latter but pointedly omitted the former, thus implying that states would continue to be free to establish churches. But if so, we are again driven to the obvious rule of construction that the general language about establishment-like all general language-applied only to the federal government.Still further corroboration comes from Madison's speeches on the House floor. Whereas he candidly admitted that his proto-Tenth Amendment "may be considered as superfluous" and "unnecessary," he described his "No State shall" proposal, in very different language: "[T]his [is] the most valuable amendment in the whole list" -valuable because it added something obviously not implicit elsewhere in general language. Yet he also noted that even this most valuable amendment would bind states only to "those particular rights" listed in the "No State shall" clause, once again making clear that merely general language would not limit states.
Did not all terrorites coming into the Union have to have a constitution consistent with the U.S. Constitution?
In other words, no new states were ever admitted that rejected the Bill of Rights.
Nothing you've posted rebuts the fact that the Founders did not intend for the Bill of Rights to apply to the states.
Is the 7th Amendment Applicable to the State Courts? No. The Supreme Court declared that the right to a jury trial in a civil suit is not a fundamental aspect of due process or the liberty protected by the Due Process Clause of the Fourteenth Amendment and is therefore not applicable to state court proceedings. (Minneapolis and St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)).
The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary.
Give it up.
Nothing you've posted rebuts the fact that the Founders did not intend for the Bill of Rights to apply to the states.
The clear words of our Constitution, ratified by the Founders, says that our Constitution, and its Amendments, is the "Law of the Land", -- the "Laws of any State to the Contrary.
You're beating your own dead horse joe. Have pity on yourself.
The Bill of Rights were already accepted in the States, that is why the Anti-Federalists wanted the Federal gov't to have them stated in the Federal Constitution.
Even the CSA copied the Bill of Rights into their Constitution, not as Amendments, but as part of the body of the document.
Thus, the fact is no state can go against the Bill of Rights.
it deals with individual liberty, and which by its nature limits gov't.
If the Federal gov't was going to be bound by the states to limit itself to protect individual liberty, you do not think the Federal gov't was going to demand that the states abide by the same limits?
Good night!
Thus, the fact is no state can go against the Bill of Rights. it deals with individual liberty, and which by its nature limits gov't.
Which leads to the same question that paulsen couldn't answer earlier..
Joe, why do you want States to have the power to infringe upon our individual liberties? -- Why should CA have the power to prohibit me from owning an 'assault weapon'? -- Can you answer joe?
Gee, a court ruling, now that settles everything.
I wonder where that puts the Dred Scott decision.
How about the recent ruling upholding the McCain-Feingold bill against free speech?
The rulings upholding bans on guns?
My authority is our Constitution.
And joe, seeing you must run, give some serious thought to answering my last question tomorrow. -- I'll hold my breath waiting.
In June 1776 Virginia’s state constitutional convention adopted the Virginia Declaration of Rights. The declaration created basic civil liberties, including safeguards for accused persons: the right to call witnesses, the right against self-incrimination, a ban on excessive bails and fines, and due process of law. The declaration also banned widespread government searches, discouraged the creation of standing armies, and called for freedom of the press. James Madison, a delegate to the convention, successfully argued for the inclusion of a guarantee of freedom of religion.
Many colonies followed Virginia’s lead when they established new state governments. Traces of the Virginia bill soon appeared in the Pennsylvania, Maryland, and Delaware declarations. By 1781 Massachusetts, North Carolina, New Hampshire, and the provisional government of Vermont had all prefaced their constitutions with some type of bill of rights. Most other states, including New York, New Jersey, South Carolina, and Georgia, protected civil liberties through a bill of rights in their new constitutions or through new supplementary laws. Only Rhode Island and Connecticut continued to rely on common law and existing legal provisions to guarantee personal rights.
The idea of a bill of rights as a basic protection of civil liberties thus dates to the American Revolution. From 1776 to 1781, the eight bills of rights adopted by the states contained a total of 90 different provisions. Some were heavily tailored to local circumstances. Most shared provisions for jury trial, freedom of speech, freedom of the press, the right to bear arms (weapons), the right to petition the government for change, and a range of other freedoms rooted in the Magna Carta and the English common law. Through their assertions of broad rights to freedom of speech and religion, however, these documents broke with English tradition. In addition, the American bills of rights went far beyond the English precedents by ordering restraints on the powers of government that had been unthinkable before 1776.
Thus, a Federal Bill of Right did only limit the Federal gov't, but only because the State already had protections for those freedoms.
New States entering the Union had to have a state Constitution consistent with the Constitution of the United States.
Apparently California managed to sneak in with a Constitution sans any RKBA. I still cannot fathom how Congress voted to admit them to the Union under those circumstances, but apparently they did.
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