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.
Sorry you've lost the concept of "civil debate"..
I probably wouldn't have bothered to respond if you had left out the snide remark..
Art. VI, by extension, DOES involve civil liberties..
As per your earlier arguments, you are discussing the Original Consitution, w/o the Bill of Rights..
Under such construction, Any Law passed by Congress, "pursuant to the constitution" is the "Supreme Law of the Land" and, "The Judges in every State shall be bound thereby"..
Therefore, the Congress could pass federal law on any and all Civil Rights and the states would be bound to obey that law..
You are correct that, w/o the Bill of Rights, there was no prohibition against states doing what they wished concerning the creation of a state church, or engaging in censorship, either of the individual, or the press...
However, there was also no prohibition against the congress passing such laws as well, pro or con those issues.. and the states then being legally bound to respect those laws...
Article VI is therefore a prohibition on the states.. a very broad prohibition stating in effect, "we're the new guys in town, and you're going to have to do as we say."..
While I agree with your sentiment, I must disagree on grounds of interpretation..
The 2nd amendment only prohibits infringement of the individual's RKBA, it does not grant that Right to the People.
The principle that "the people" have an "inalienable" right to keep and bear arms is an implicite admission in the 2nd amendment..
Also, ONE REASON stated is that the people, individually or as a group, (militia) be able to defend themselves, the state or the nation in times of emergency..
( I classify an "emergency" as someone attempting to assault or murder me, my family, freinds, or innocent bystanders, especially if a law enforcement officer is not present to resolve the situation.. if an LEO is present, I can still assist..)
I don't have any problem with "defining" RKBA as an individual right, I believe that it is..
My problem is using the 2nd amendment to define that right..
The 2nd is just about prohibiting interference with that right.. not the right itself..
The context of that post was, why wasn't the Federal gov't making all gun control laws illegal?
We do not allow slavery anymore, so why not gun control laws.
They have not done so because they do not see the Bill of Rights in terms of natural law anymore.
Thus, these rights are now defined in a positivist way.
Had not a philosophical change occurred in the beginning of the 20th century, it is possible that the Federal gov't would have ensured that the 2nd amendment was protected in all 50 states.
State rights (in this case 'local rights') are now being used to deprive individuals of that right in DC and the Congress is trying to overturn that ban based on the Bill of Rights seen as a natural law.
You will see Conservatives join with liberals to resist overthrowing this ban because of what they call Federal ínterference'.
This view is based on a misquided notion that a State has a right, rather then the natural law view that the State only exists to protect the rights of individuals.
The reversal of gun prohibitions among the individual states is a good sign.. and an indication that many individuals have come to the conclusion that gun control is "just wrong"..
While I tend to agree with the argument that the 2nd is "all encompassing", according to it's literal interpretation, I understand there may be historical context that might possibly interpreted to limit it's context to one group or another.
The problem is, it is not limited to either one..
While some argue that "state's rights" provide immunity from the prohibition to infringe on RKBA, there seems to be no enforcement of that prohibition on the federal government as well..
Just my personal opinion, I'm no historical scholar, just a "voluntary student", so to speak..
States no more have "rights" than does the Federal Gov..
They both have "powers", granted to them by the people..
And the people can take those powers away just as quickly as they grant them..
Actually there is, the combined efforts of the people through the states.
That is the problem that the homosexual are having, they are being rejected in almost every state.
Hence, they have to find activist judges to bypass the rejection of their agenda on the state level.
Moreover, the rejection of that agenda on the state level translates into the Federal gov't hesitating to push it.
Gun control laws have become so 'hot'now that neither Party will touch them.
Kerry has to go hunting to show he is not a gun grabber.
This is due to the combined power of the people through the states.
We can also put in pro-gunners who will aggressivly attack federal gun laws and get rid of them as we did recently.
Just my personal opinion, I'm no historical scholar, just a "voluntary student", so to speak.. States no more have "rights" than does the Federal Gov.. They both have "powers", granted to them by the people.. And the people can take those powers away just as quickly as they grant them..
Exactly right, there is no thing as 'states rights' only state powers and responsibilities.
All gov't is dangerous and must be held in check by the people, at all levels.
I think the absence of any enumerated power giving Congress authority over those constitutes a prohibition. The BOR just stated explicitly what was already there implicitly.
This is not true. Because of the ENUMERATION, the federal govenment was not empowered to pass laws concerning civil liberties. This is conservative constitutional lesson 101. The enumeration is EVERYTHING!!!!! W/out the enumeration congress COULD do anything it wanted, could indeed pass legislation on any subject at anytime, whatsoever period. Thanks to the enumeration, it could not do it. ART VI merely says that if the FED g. passes a law WHICH IT IS LEGALLY ENTITLED TO PASS, taxing for the military, say, then the states must follow, as the CONS is the supreme law of the land. ART 6 DOES NOT SAY, that the FED GOV may pass any law that it pleases, laws concerning, say, civil liberties, or gun control. TODAY, thanks to citizen ignorance, Congress can of course pass any legislation at any time on any subject that it sees fit. And that is very sad. By the way, I wanted to be civil, but I detected sarcasm in your response, so I responded in kind. I apologize if you had not intended sarcasm.
"This is a fact, not my interpretation."
A fact? You wouldn't know a fact if it bit you in the a$$ -- that was NOT what the framers wrote. The only way you can make your point is to distort the truth.
"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.
Any Constitutional federal law is the supreme law, and supercedes any state law.
The Constitution itself is not a "Law" -- it provides a framework for laws.
"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.
Any Constitutional federal law is the supreme law, and supercedes any state law.
The Constitution itself is not a "Law" -- it provides a framework for laws.
I don't think so. That comma after Constitution is significant. It means that the Constitution and the "the laws of the United States which shall be made in pursuance thereof" are separate entities.
The Constitution ... shall be the supreme law of the land
and
the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land
The Constitution cannot be the supreme law of the land, and not be a law.
Logic??? Drooling, mindless babbling is more like it.
"The Constitution is unconstitutional"! What is that? Maybe you understand that pap -- I don't.
An amendment is part of the Constitution. It is the Constitution.
The federal government has never been challenged on second amendment grounds -- hence, no enforcement.
The 1994 Assault Weapons Ban, for example, was challenged in federal court in 1995 by Navegar Inc. (TEC-DC9 and TEC-22) and Penn Arms Inc. (Strike 12) as a violation of Congress' Commerce Clause authority, not as a violation of the second amendment.
This is a fact, not my interpretation.
--- that was NOT what the framers wrote.
"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.
I got it right the first time, as anyone who can read & reason would acknowledge. You are being pedantic & supercilious, as usual.
Any Constitutional federal law is the supreme law, and supercedes any state law.
Good of you to finally admit it.
The Constitution itself is not a "Law" -- it provides a framework for laws.
There you go again, directly contradicting the clear words of Article VI.
"This Constitution, ... shall be the supreme Law of the Land ..."
If the citizens of the individual states wanted to limit their state government, all they had to do was pass a state constitutional amendment.
They would certainly not come up with some convoluted scheme that sets up a federal government, include an Article VI which only tpaine and tacticalogic think apply the document to the states also, ratify a BOR two years later that SPECIFICALLY says "Congress shall make no law ..." and say it also applies to the states.
Riddle me this. If the Constitution also applied to the states, then Article I, Section 9 (No bill of attainder or ex post facto Law shall be passed) also applied to the states, correct?
Then why the need for Article I, Section 10, which says, " No state shall ... pass any bill of attainder, ex post facto law, ..."?
Nice strawman -- "as if".
I never said they wrote it. Is an amendment part of the constitution? And if someone says an amendment is unconstitutional, aren't they saying the constitution is unconstitutional?
Go back to bed.
"And imo, calling Eastbounds post #160 "Drooling, mindless babbling" is getting beyond the pale."
Sorry. I meant to say, "Drooling, mindless, idiotic babbling".
Bull. Such challenges have been made, but the USSC has refused to hear them.
If the citizens of the individual states wanted to limit their state government, all they had to do was pass a state constitutional amendment.
The 'moral' majority in CA prevent gun owners here from passing a RKBA's type Amendment to the CA Constitution. -- Do you find such majority rule acceptable?
They would certainly not come up with some convoluted scheme that sets up a federal government, include an Article VI which only tpaine and tacticalogic think apply the document to the states also, ratify a BOR two years later that SPECIFICALLY says "Congress shall make no law ..." and say it also applies to the states.
Sigh.. For the umpteenth time, -- "Congress shall make no law ..." applies only to the 'establishment' clause.-- A point Justice Thomas reiterated in his last opinion, and we all argued over. You lost that debate as usual.
Riddle me this. If the Constitution also applied to the states, then Article I, Section 9 (No bill of attainder or ex post facto Law shall be passed) also applied to the states, correct? Then why the need for Article I, Section 10, which says, " No state shall ... pass any bill of attainder, ex post facto law, ..."?
Section 9 is specific to Congress, Section 10 to States. -- No riddle.
Rest assured, I keep it up as much as possible.
How can you say that? Section 9 is part of the "supreme law of the land" from Article VI that you constantly point out - "anything in the laws or constitutions of the states to the contrary notwithstanding". How can you say that states can violate it?
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