Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

How the Judiciary Effectively Repealed the 10th Amendment
CAPITALISM MAGAZINE ^ | November 19, 2003 | Thomas Sowell

Posted on 11/20/2003, 6:31:20 AM by jimkress

Summary: The terribly clever people who were put on the courts kept "interpreting" Congress' power to regulate interstate commerce so broadly that anything they wanted to regulate was called "interstate commerce." Thus the interstate commerce clause was used to virtually repeal the 10th Amendment. Judges got so clever back in the 1940s that even a man who grew food for himself in his own backyard was said to be engaged in interstate commerce -- and therefore subject to the power of Congress.

Many years ago, someone did a study of the IQs of municipal transit drivers and their accident rates. Those with below-average IQs had higher rates of accidents, as you might expect. What was unexpected was the discovery that drivers with IQs above a certain level also had higher rates of accidents.

Apparently driving a bus or trolley was not enough to keep the minds of very bright people occupied. So their minds wandered and they had more than their share of accidents.

Something similar may have contributed to disasters in our legal system, especially in appellate courts, where the issue is not simply whether someone was innocent or guilty, or who caused what damage, but how all this fits into the framework of Constitutional law.

The Constitution of the United States is not some esoteric document, written to be understood only by people with high IQs and postgraduate education. It is written in rather plain language.

There is even a sort of instructions guide on what the Constitution means in The Federalist Papers -- a collection of popular 18th century essays by those who helped write the Constitution, explaining why they did what they did.

Despite all this, appellate court decisions interpreting Constitutional law today are often a huge maze of tangled reasoning, obscure concepts and complex confusion. The motto over the entrance to the Supreme Court of the United States says, "Equal Justice Under Law" but sometimes you might wish that it said: "Brevity is the soul of wit."

It is not that the cases are so complicated in themselves but that high-IQ judges have turned simple realities into complex metaphysics. A few years ago, the Supreme Court voted 5 to 4 that carrying a gun near a school was not interstate commerce. To most people, the decision was obvious. So why 5 to 4?

You might think the decision should have been nine to nothing and it should not have taken more than one page to explain. Yet the good justices tied themselves into knots with lengthy explanations of their votes for and against.

The reason this decision was so complex and caused such consternation among some legal scholars was that previous generations of Supreme Court justices had turned the Constitution's simple concept of interstate commerce into a complicated rationalization of Congress' ever expanding exercises of power that it was never given when the Constitution was written.

Although the 10th Amendment says pretty plainly that the federal government can do only what it is specifically authorized to do, while the people can do whatever they are not specifically forbidden to do, this was not good enough for those who had visions of a more active government in Washington.

The terribly clever people who were put on the courts kept "interpreting" Congress' power to regulate interstate commerce so broadly that anything they wanted to regulate was called "interstate commerce." Thus the interstate commerce clause was used to virtually repeal the 10th Amendment.

Judges got so clever back in the 1940s that even a man who grew food for himself in his own backyard was said to be engaged in interstate commerce -- and therefore subject to the power of Congress.

After generations of this kind of runaway "interpretation" of the Constitution, it was a shock to some legal scholars when the Supreme Court decided -- 5 to 4 -- that Congress could not pass a federal law forbidding people from carrying guns near local schools.

Most states had such laws anyway, and all states had the authority to pass such laws if they wanted to, so this decision did not leave school children unprotected. It just put a stop to one of the thousands of extensions of federal power beyond what the Constitution authorized.

These over-extensions of federal power were not due simply to the ideological biases of judges, though that was undoubtedly a big factor. It also grew out of judges with more brainpower than was necessary to deal with 90 percent of the cases that came before them. High IQs and low self-discipline led to more wrecks in the law, just as among municipal transit drivers.

About the Author: Thomas Sowell has published a large volume of writing. His dozen books, as well as numerous articles and essays, cover a wide range of topics, from classic economic theory to judicial activism, from civil rights to choosing the right college.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Front Page News; Government; News/Current Events
KEYWORDS: 10thamendment; judiciary; thomassowell

1 posted on 11/20/2003, 6:31:21 AM by jimkress
[ Post Reply | Private Reply | View Replies]

To: jimkress
interesting take
2 posted on 11/20/2003, 6:39:46 AM by TheOtherOne
[ Post Reply | Private Reply | To 1 | View Replies]

To: jimkress
We had a huge victory garden and canned a lot of food.I don't recall the government intervening!
3 posted on 11/20/2003, 6:42:34 AM by MEG33
[ Post Reply | Private Reply | To 1 | View Replies]

To: MEG33
Shhhh! Your neighbors didn't fink on you, yet.
4 posted on 11/20/2003, 6:45:02 AM by jimkress (America has become Soviet Union Lite)
[ Post Reply | Private Reply | To 3 | View Replies]

To: jimkress
read in the morning
5 posted on 11/20/2003, 6:49:36 AM by LiteKeeper
[ Post Reply | Private Reply | To 1 | View Replies]

To: jimkress
Our neighbors were probaly glad to get a gift.Seriously,even in the city small front yards were turned into gardens,vacant lots were gardened.We had real butter until the cow went dry,after that,white sticks of margernine had to be mixed with food coloring to avoid the yuck factor.Meat was rationed or beef just plain unavailable,shoes were rationed,gas was rationed,no new cars,no new refrigerators(hello ice box if yours could not be repaired,ours couldn't.}Ah..the good old days.
6 posted on 11/20/2003, 6:52:17 AM by MEG33
[ Post Reply | Private Reply | To 4 | View Replies]

To: MEG33
Ah..the good old days.

Just wait. If Dean is elected the 'good old days' will be our future. We won't be able to afford anything else, unles of course, we are part of the liberal aristocracy.

7 posted on 11/20/2003, 6:56:55 AM by jimkress (America has become Soviet Union Lite)
[ Post Reply | Private Reply | To 6 | View Replies]

To: jimkress
Most states had such laws anyway, and all states had the authority to pass such laws if they wanted to, so this decision did not leave school children unprotected. It just put a stop to one of the thousands of extensions of federal power beyond what the Constitution authorized.

Another pundit submits to the myth that States have "authority" to infringe upon a right of the people.

The 2nd amendment is non-specific as to who is prohibited from infringing upon the right for a reason.
It is because that prohibition applies to all parties concerned.
No one has the right to infringe upon the people's Right to Keep and Bear Arms.
Not even "the People", as long as the 2nd amendment stands as written, and un-amended.

Until we get that principle understanding through to the American Public, there will always be restrictive gun laws.

8 posted on 11/20/2003, 7:37:56 AM by Drammach
[ Post Reply | Private Reply | To 1 | View Replies]

To: MEG33
As I recall, the food case involved a farmer involved in a program that limited the amount of his crop he could grow. Instead of growing X acres like the government told him he could grow, he grew X plus a few acres so he could have something for his own use. The SC said that because he didn't sell the extra, he interfered with interstate commerce, and also because he grew the extra, he didn't buy it from someone else and therefore interfered with interstate commerce again. I can't find my old Con Law book, but I think the case was Wickard v. Filburn. A great read if you want something that will make your jaw drop in amazement.
9 posted on 11/20/2003, 1:58:27 PM by yawningotter
[ Post Reply | Private Reply | To 3 | View Replies]

To: yawningotter
I am going to look that up,thanks.
10 posted on 11/20/2003, 3:39:30 PM by MEG33
[ Post Reply | Private Reply | To 9 | View Replies]

To: yawningotter; MEG33
Here you go: WICKARD v. FILBURN, 317 U.S. 111 (1942)

The Agricultural Adjustment Act of 1938 ensured that Mr. Filburn would receive a fair price for the crops he (and others) grew. 81% of the farmers voted in favor of the Act.

Now, the fair price they received for their crops was contingent upon everyone growing only their allotted share -- you could grow more, but if you did, you'd have to pay a penalty of $.49 per bushel.

Mr. Filburn grew more, but refused to pay the penalty. This upset Mr. Wickard, the Secretary of Agriculture.

11 posted on 11/20/2003, 5:04:54 PM by robertpaulsen
[ Post Reply | Private Reply | To 9 | View Replies]

To: AdmSmith; Berosus; Convert from ECUSA; dervish; Ernest_at_the_Beach; Fred Nerks; justiceseeker93; ..
Note: this topic is from November 2003.
The terribly clever people who were put on the courts kept "interpreting" Congress' power to regulate interstate commerce so broadly that anything they wanted to regulate was called "interstate commerce." Thus the interstate commerce clause was used to virtually repeal the 10th Amendment. Judges got so clever back in the 1940s that even a man who grew food for himself in his own backyard was said to be engaged in interstate commerce -- and therefore subject to the power of Congress.

12 posted on 2/9/2009, 2:43:03 PM by SunkenCiv (https://secure.freerepublic.com/donate/____________________ Profile updated Monday, January 12, 2009)
[ Post Reply | Private Reply | To 1 | View Replies]

To: MEG33
See too United States v. Darby, 312 U.S. 100 (1941), where the Court characterizes the 10th amendment thusly:

Our conclusion is unaffected by the Tenth Amendment which provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the [312 U.S. 100, 124] States, are reserved to the States respectively, or to the people'. The [10th] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, secs. 1907, 1908.

13 posted on 2/9/2009, 2:53:31 PM by Cboldt
[ Post Reply | Private Reply | To 10 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson