The Federalism Debate [And 'States Rights']

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."

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.

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.

Some BIG misunderstanding here. IF!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! congress were to enact a statute saying that all citizens had to be armed to be prepared for militia service or something like that, you'd have an interesting case. I know that there is a statute saying that all men between x and y ages are in the militia or something like that, but as far as I know there is no requirement to be armed.

I'm not talking about Congress passing a law. The Militia was placed under Congress in Article I, Section 8, with specific and limited powers to the States. States who disarm citizens are treading on a power granted to Congress. I thought you said in an earlier post you agreed.

Question 2: The whole doctrine of inc. is completely bogus, invented like much of sc law. IOW, the BOR still does NOT apply to the states. However, if the SC insists on saying that ANY part of the BOR applies to the states, then I DEMAND that the whole thing apply, most especially including the 2nd amend. But this is irrelevant -- the question before us is -- Was the BOR meant to apply to the states. Not --- does it apply now, after many changes and court cases.

What do you consider to be some of the Privileges and Immunities of citizens of the United States? Would you include the RKBA among them?

Privs and imms -- I don't believe that the privs and imm clause of the 14th amend applies the BOR to the states, for the simple reason that if it were meant to, you've got to ask yourself why the words "Bill of rights" appear nowhere in the amend. As justice bork has noted, the sc properly left the p and i clause a "dead letter" in the Slaughterhouse cases. One of the problems with the p and i clause is as follows. Under the cons, I am IMMUNE to being taxed by the fed gov for education spending. Ed spending is left completely to the states, as you will find no fed power to spend on educ in the enumeration. IF!!! all the IMMUNITIES that the fed gove gives me, I also have with the state govs, this means that no state can spend on education. Surely that was not intended. Also, the fed gove cannot legislate where abortion is concerned, following the p and i logic, the states also cannot legislate against abortion.

Seems I forgot to answer the first part of your query. FIRST MY LEGAL ANSWER, then MY PHILOSOPHICAL ANSWER The g. has total control of the militia. The g. may use this power in virtually ANY way it sees fit. It can do anything or nothing with this power, EXCEPT it may not, on pretext of properly governing the militia, disarm the people. It cannot, for example, pass a law that says "In order to govern the mil., we require all citizens to deposit their guns at this here federal armory." I owe this excellent analysis to an article by Nelson Lund, I believe, in National Review. So, because the fed may indeed ignore the mil as it sees fit, I would say that state gun laws are still legal, until such time as the fed passes a law saying all those who want to be armed in anticipation of mil service shall be armed.
PHILO ANSWER
The only thing better than seeing the law work in my favor the way it was intended would be to see the law work in my favor in an underhanded way. NOTHING would make me happier than for the fed gov to overstep its bounds and come up with some crazy, loopy interpretation ensuring my rite to guns. The crazier and loopier it is, the more painful it is for the filthy piece of shit libs who ALWAYS get crazy, insane, loopy interpretations to get what they want. Think about it -- a lib wakes up one day to see that the SC says the 2nd amend makes fed gun laws illegal. The lib knows deep in his heart that this is probably true, so he lives with it. Think how beautiful it would be, on the other hand, if the SC came up with some insane, wholly corrupt nonsense about how state gun laws were no good because the moon is in the seventh house while the interstate commerce clause was rescinding in the 15th amendment. The rage at being blatantly ripped off would be bitter indeed. Sort of like the rage I feel when I am told that the 2nd amend reads only that "Militias are acceptable."

Then what are some examples of P&I? Does it make sense that the 14th prohibits States from violating P&I of US citizens but it doesn't include the RKBA?

As justice bork has noted, the sc properly left the p and i clause a "dead letter" in the Slaughterhouse cases.

IOW, Bork thinks it's OK to ignore the written words of the Constitution?

One of the problems with the p and i clause is as follows. Under the cons, I am IMMUNE to being taxed by the fed gov for education spending. Ed spending is left completely to the states, as you will find no fed power to spend on educ in the enumeration. IF!!! all the IMMUNITIES that the fed gove gives me, I also have with the state govs, this means that no state can spend on education. Surely that was not intended.

That is some of the most novel reasoning I've seen for a while.

The Feds are not granted the power to run education. Under the Tenth, the States are reserved powers not delegated to Congress and that would include education.

Also, the fed gove cannot legislate where abortion is concerned, following the p and i logic, the states also cannot legislate against abortion.

You're mixing Article I and the Tenth Amendment (State/Federal power) with P&I/BOR. You're saying that the fact that the Feds are not empowered to educate makes it a P&I. Again, very novel.

P&I -- no, bork doesn't believe it should be ignored, he is pointing out that the SC at the time thought so, and with good reason, P&I was left utterly undefined. NOBODY knows what it means, nobody has ever found any evidence what was intended. Read Bork's Tempting of America. It is unfortunate, he notes, that words were plainly put there for a reason, but since NOBODY knows what that reason is, it has been "left dead".

My reasoning: Come, come now. Surely YOUR militia reasoning, which I admittedly like, is a bit convoluted. And what's wrong with my reasoning? I am IMMUNE from edu spending on the fed level, if I am to enjoy all my immunities evenly, then I am immune on the state level too. It is PRECISELY the same reasoning as yours -- I am immune to gun laws on the fed level, therefore, I am immune to gun laws on the state level, would be your reasoning.

You write... The Feds are not granted the power to run education. Under the Tenth, the States are reserved powers not delegated to Congress and that would include education.

This is true, lacking that immunity thing we just discussed.

You write... You're mixing Article I and the Tenth Amendment (State/Federal power) with P&I/BOR. You're saying that the fact that the Feds are not empowered to educate makes it a P&I. Again, very novel.

Nothing novel about it. You would like P&I to equal BOR, again, the 14th amend does NOT mention the BOR at all. So, when I go looking for P&I, I naturally do not focus ONLY on the BOR, which, again, was not mentioned in the 14th.

You're sort of calling me a liar here. I love guns more than I do people. If I thought the US cons protected my guns against filthy, scum-f*** people, I'd scream it from the rooftops. Believe me. Has anybody else, ever, anywhere, at any time, outlined this art 1, BOR, P&I case? If nobody ever has, it's probably because it wasn't intended. Here's another question -- if the framers had wanted the states to not pass gun laws, don't you think they might have actually said so, somewhere? Read art 1, sec 10, the part of the cons that deals with state prohibitions. You won't see anything about guns at all. Also, and this is quite important, the original cons was ratified WITHOUT A BILL OF RITES AT ALL. The BOR came at least one year later. So, I ask you, what gun protections did the framers put in the original cons? Answer -- the enumeration, which prohibited the fed gove from touching my guns.

You wrote:

--- the jurisdictional playing field was tilted with the 14th Amendment when the federal overlay and federal citizenship was created.

US citizenship was 'created' by the 14th?
Were persons born in the territories, prior to 1868, not 'a citizen' until Statehood?

Also, I don't see how any playing field was altered by the 14th.
In effect it simply reiterated that States are bound to honor Constitutional law as our supreme law, and corrected the erroneous impression left by Marshalls 1833 'Barron' opinion, that States could infringe upon our individual rights.

That's two questions.

Yes. -- The first is; - how was US citizenship 'created' by the 14th?

1 - US (Federal) citizenship WAS created with the 14th Amendment.

That's your unsupported opinion, not an answer.

The 14th was created to designate a protectorate -- the federal United States - a transparent overlay over the geographical political entities of the union of states for blacks and other non-Citizens after the war. These are referred to as 'citizens' (lower case 'c') in the 14th. Congress couldn't call them 'Citizens,' as that word was already defined and in use in the Constitution. Check it out. 'Citizen' is capitalized throughout the Constitution until the 14th Amendment, then and thereafter spelled only in lower case. Think there was not a reason for that?

I'd like to see you explain it better. The black 'protectorate' thing is a new one on me.

Okay, here's the kicker: The 14th amendment did not apply to Citizens -- only to citizens. The 14th formally advised how non-federal Citizens should treat and regard federal citizens.

Where in the amendment does it say anything to that effect?

And it gave the state governments 100 years to get their act together, ending the Jim Crow period with the Civil Rights Act of 1964.

Again, you make an unsupported observation, but no answer.
How was US citizenship 'created' by the 14th?

Question 2: -- Were persons born in the territories, prior to 1868, not 'a citizen' until Statehood?

-- Depends on whether or not a person born in the territories would constitutionally qualify to be elected to Congress or President of the United States, per Article I and Article II.

Are you claiming they weren't? Were some persons, otherwise qualified, denied the opportunity to be elected because they were born in a territory, prior to 1868? -- When did this happen, and to whom?

Like I said. A can of worms, even at this late date, unless someone can come up with a rationale that allowed 'citizens' to be elected to Congress.

Who among us, at this late date, are 'citizens', and who are 'Citizens'? You've lost me in making that distinction.

And again, none of the above changes the facts about 14th.
It simply reiterated that States are bound to honor Constitutional law as our supreme law, and corrected the erroneous 1833 'Barron' opinion, that States could infringe upon our individual rights. -- Granted, it did that because blacks were having their civil rights violated at the time.
But the ratification debates in that '68 Congress made clear that States NEVER had the power to ignore our individual US Constitutional rights, & in particular our RKBA's.

Oh, I forgot. I thought you had said earlier that you were NOT relying on the BOR applying to the states for this discussion. But now you are. Also, there is a very good reason it would be IMPOSSIBLE to say, "The framers wanted the states to leave the guns alone, so they gave us the sup claus and the 2nd amend." This is utterly impossible because they gave us a constitution that was ratified and was the law of the land for at least one year that DID NOT HAVE A BILL OF RIGHTS! The BOR was discussed at the cons convention in 1787 - of the 50 some men there, only TWO spoke in favor of the measure and the state delegations rejected the idea UNANIMOUSLY. Read fed 85 I believe to see why. The BOR came about, as noted earlier in Baron V. baltimore because anti-feds in the state applied pressure.

So Bork doesn't believe in ignoring it, but he thinks it should be left dead? I'd call that a Flip-Flop, wouldn't you?

My reasoning: Come, come now. Surely YOUR militia reasoning, which I admittedly like, is a bit convoluted.

Oh no it's not. You make it complicated for some reason. Didn't you agree "100 percent" and you really liked my reasoning? I'm tempted to call you on another Flip-Flop.

And what's wrong with my reasoning? I am IMMUNE from edu spending on the fed level, if I am to enjoy all my immunities evenly, then I am immune on the state level too.

No, there is no individual P&I issue in the division of powers. The Feds and States have their powers defined in Article I and the Tenth. There is no individual immunity from State or Federal education spending. The Feds are simply not granted such power. However, the States are reserved such powers, if they choose to exercise it.

It is PRECISELY the same reasoning as yours -- I am immune to gun laws on the fed level, therefore, I am immune to gun laws on the state level, would be your reasoning.

There is a Second Amendment that says the RKBA shall not be infringed. Where is the Clause which says, "shall not be illiterate"?

You write... The Feds are not granted the power to run education. Under the Tenth, the States are reserved powers not delegated to Congress and that would include education. This is true, lacking that immunity thing we just discussed.

Can we agree that Fed/State division of power is not a BOR/P&I issue?

You would like P&I to equal BOR, again, the 14th amend does NOT mention the BOR at all. So, when I go looking for P&I, I naturally do not focus ONLY on the BOR, which, again, was not mentioned in the 14th.

Then name some Privileges and Immunities of US citizens.

Here is a very straightforward delegation of State and Federal power:

Congress shall have power... To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Now what is convoluted or unclear? This was deemed a national security issue and that's why they granted such a power to Congress. Two years later, they flat out said a well regulated militia was necessary to the security of a free state.

How can a State disarm its citizens without violating the above Clauses and the Second Amendment?

Bork says it has to be ignored because nobody knows what it means. Do you have an authority to say what it does mean? I have two (Bork and the SC in the SH cases that say it is meaningless. Sorry. I DO like your reasoning mentioned earlier. Does that mean that it's not convoluted. Again -- who else on all the face of the globe ever put forth this theory? There IS ABSOLUTELY an immunity to being taxed by the fed gove for educat spending. The fed gove cannot tax you for a project which it would be illegal to undertake. You write...There is a Second Amendment that says the RKBA shall not be infringed. Where is the Clause which says, "shall not be illiterate"?
Again, I thought you were not pushing the gun case on the BOR. Shall I post again the huge list of cases saying the BOR does not apply to the states? And there is indeed a clause which says "shall not be illiterate" Jokingly of course. It is, again, the enumeration, which gives the fed NO power to spend on educat.
Some privs and I's of us citizens -- I shall not be taxed by the fed gov for welfare spending, educat spending, environ spending, etc. I shall not pay for a federally supported church. The states may not issue paper money. The fed gove shall not prevent me from dying my hair blue, smoking dope or watching Sperm Bank Nurses.

Again, IF!!!!!!!!!!!!! the fed gove were to pass a law dictating in some way that people be armed for the good of the mil, I would agree with you. I already have. They have as of yet passed no such law. I sure wish they would.

You're saying that States are allowed to disarm citizens, a power that is forbidden to Congress.

Furthermore, by allowing States to disarm citizens, they are weakening what the Founders deemed was necessary for national security.

For some reason, you also ignore the specific and limited State involvement in the Militia delegated in Art.I, Sec.8.

The power outlined for States in militial matters is not dependent on what Congress does. Where did you come up with that?

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