Posted on 08/21/2005 7:00:15 AM PDT by Carry_Okie
For most of the last 60 years or so, the 10th Amendment has been down on the canvas listening to referee count to (ironically) ten. There have been some indications lately, though, that it might not be knocked out entirely. The Supreme Court in Lopez ruled ten years ago that the power of the federal government is not supreme over the states simply based on the Commerce Clause of our Constitution. That, in conjunction with the 14th Amendment, had bulldozed any notion of states' rights for decades.
Nevertheless, the 10th Amendment is still routinely disregarded by federal lawmakers all the time, and the Supreme Court has done very little to bring a halt to that.
The doctrine of selective incorporation of the Bill of Rights to the states by the Supreme Court is a legal oxymoron. I don't know of a single legal scholar who can defend it unless they are wearing a partisan hat. Either all of the Bill of Rights are incorporated to the various states, or none of them are. You can't make a decent legal argument for a different interpretation and the fact that someone doesn't like guns is not a legal argument.
Excellent essay, CO. We only agree about 98% of the time, but you're my candidate for Free Republic's Man of All Seasons.
There are advantages to being a non-lawyer which I am certain you saw in the book: One hasn't been biased by the opinions of the professorate and is instead forced to rely upon source documents and history. There may be glaring omissions of comprehension, but a few massive blow-its usually get one pointed in the right direction. :-)
I am deadly serious about getting these and more questions in the hands of the right people. It's high time we found out what our jurists are made of. Anything you can do to facilitate that process would be greatly appreciated. In the mean time, I would really like to see this or some other thread turn into a discussion of key Constitutional issues whereby we can generate those pointed questions. I'm damned tired of the crap I see in the public media.
Agreed, but when creating something meant to compel a Senate staff lawyer to prepare serious questions, the follow-up article would not carry the weight without such support. I'll follow up on this one with just such a story in a week or two.
I am curious about what you think about that story regarding the headnote in Santa Clara v. Southern Pacific.
BTW, you are free to redub me Free Republic's Quixotic Bastard for All Seasons at your earliest whim. ;-)
It's just not the way the law works, or at least is supposed to work.
Opinions from the Court are supposed to mean something. That something is pretty narrowly defined.
The Court itself could set the matter straight, but it won't. It has no press secretary as far as I know (leaving aside the question of whether that would be a good idea).
OK, I can see that. But what it seemed like MamaTexan was saying (please correct me if I'm wrong, MT) is that the clause pertained to actual commerce between the governments of two states, as if those governments themselves were parties to a transaction.
Aside from that, I can definitely respect the argument that the interstate commerce clause was not intended to be a source of federal control of any interstate transactions (governmental or non-governmental), but rather, as you say, a preventive measure against state interference in such transactions. Madison himself made the same argument.
Unbearably hot with a 60% chance of pedestrians passing out on the sidewalks.
Ya needs an index set by the average number of bodies on the sidewalk per lineal mile.
read later bump... I'm glad to see that koan was defined at the beginning.
I was once told that zen was ok only so long as you didn't get it all over you. ;-)
Bump
Excellent article. Your comments on the 14th amendment are very informative.
Ping for later.
Ask the Federal government to protect property owners from eminent domain and the cost of doing it locally goes through the roof.
The ONLY instances in which I recommend going to Federal Court is when dealing with Federal regulatory takings and only then after building proper standing to take the contract for management away from incompetent and corrupt Federal agencies.
The 2nd., 9th. and 10th. Amendments. This goes without saying.
Frankly, IMO, the BOR is either fully incorporated by the 14th or not at all. Selective incorporation is an abomination.
Funny sobriquet. I've been one of those at times, though not on FR. Now I know what to call it. It's a tough job, isn't it? But then somebody has to do it. Without dreaming the impossible, nightmares become possible. Good luck.
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