... Plenary Power, And It Is Too Late To Turn Back.’’
By JOSEPH SOBRAN
Posted: July 20, 1996
“Nearly a decade ago, the Senate rejected Judge Robert Bork’s nomination to the Supreme Court. He was defeated largely because he insisted ...
In a recent TV interview, Judge Bork suggested that the Tenth is dead and gone. He said: ``In Article I, Section 8 of the Constitution, [the framers] listed the powers of Congress, which were somewhat general, but definite enough. And in the Tenth Amendment they said they really meant it, that powers not granted remained with the states or with the people. That was a system that began to break down almost at once.’’
He added: ``I think the idea of enumerated powers through which the federal government is limited is an unrealistic idea and never had a chance of working. . . . The Tenth Amendment and the enumeration of the federal powers . . . have become passe. The federal government has assumed plenary power, and it is too late to turn back.’’
I hope he is wrong. But what if he is right?
If the Tenth was futile from the start, the implications are enormous. It means that the anti-federalists were right when they opposed ratifying the Constitution. They argued that the federal government, given the powers enumerated in the Constitution, would be so powerful that it could usurp any number of other powers never granted to it, and nobody would be able to stop it.
In other words, the Constitution would be unenforceable against the very government it was supposed to restrain. To put it another way, the Constitution itself doomed us to unconstitutional government.”
FWIW, I think history has proven the anti-federalists correct. The more power is centralized, the more control it will take. A collection of cooperating states might have been unwieldy, but the only way to prevent centralized power is to have competing interests fight each other for influence.
The courts were always the weak link. When they started grabbing power, only swift action by the rest of government, to include taking away all their money, could have stopped them.