“...(W)here the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it.
What is the universe of "powers" here contemplated? For example, are there any "powers" which, although not granted to the federal government, the states cannot have? What does "power" mean here?
”These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States -are reserved to the States respectively, or to the people.- ... the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.
Same question of this one. What is meant by "power," and are there any "powers" at all which are not "controlled" by the federal government, the states, or the people of the state? I ahve previously, in trying to understand what people think about this, asked if such things as the power to murder or cannabilize are included. Assuming they are not, please help me define the kind of "power" that is reserved, delegated, divided up, etc., in these texts.
”To be sure, when the Tenth Amendment uses the phrase -the people,- it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: there would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation.”
You are certainly right that Justice Thomas does not read this amendment as reserving powers to individual citizens of the nation. But this last sentence is interesting -- it denies a Constitutional "mechanism" by which the "undifferentiated people of the Nation" might act -- and by "act" I believe he means "act politically." It seems to me significant that he is apparently assuming that there is some such "undifferentiated people" of a "Nation," but that the political order established by this people does not include exercise of political power by that people directly. Wouldn't this be seen in the absence of, for example, the direct election of a president, or of any mechanism for national referendum?
By implication, then, the two other bearers of political power referred to would be the states -- meaning the constituted governments of the states, I presume -- and the united body of citizens of particular states. That is, for example, the government of California or the people of California in a referendum.
I think you are right -- although not for the reasons you have in mind, I am fairly sure -- that Justice Thomas does not see in the 10th Amendment a reservation of what are called "rights," but of political powers, and that this distinction corresponds to the distinction between individuals (the only bearers of rights) and political bodies, (apparently, the bearers, or exercisers, of these things called "powers.") Governments, or sovereign bodies of people, can exercise "powers." And he points out that the body of people (I understand that you dispute this, but I am interpreting Justice Thomas at the moment) of the "Nation" does not exercise political power.
What I was thinking of as the right of a citizen of the United States not to have his fundamental political arrangements altered by the state government or state people to which he also belongs is not properly understood as "reserved" to individuals by this Amendment, on this reading, which seems true to me.
I think this does not bear on the question of whether there is sovereignty at the national level, however -- which Justice Thomas in this very quotation implies when he speaks of the "Nation as a whole" and its "Government."
I'll repeat my simple little argument (which I think you grant, actually) on this and then go to bed. If there is any genuine sovereignty at the national level -- albeit incomplete sovereignty because of the remainder of sovereignty's natural whole being possessed by the states -- then there exists an underlying compact of the whole which is governed by that partially sovereign government. But compacts cannot be unilaterally withdrawn from by individual components, or even clumps of components. Only by something reasonably understood as the act of the compacting community can the compact be modified.
The departure of states from the Union, like the arrival of new ones, pertains the community of the whole. Additions to that whole are accomplished within the Constitution by the procedures for the admission of new states. There exists no such mechanism for the subtraction of states, which is equally necessarily an action of the whole.
I am quite happy if we can agree that on the question whether there exists in any real sense a national political community - a "Nation" or "Country" -- will depend the question whether participants in the federal organization can withdraw unilaterally.
You have cited several authorities, chiefly Taylor, who say no to this question. I think they are wrong, and that at the heart of the denial is a denial of the possibility of divided or qualified sovereignty. Hamilton, I presume, was seeking greater or complete national sovereignty, not just "some" sovereignty. I want to go back to the Federalist papers and see more clearly what they thought on this question -- but if there is one theme that leaps out of that text, it is that what is at stake in the ratification question is not whether an effective league of sovereign states is a good idea, but whether national union will receive a government adequate to it, for without such a government, the national union must be abandoned. That is not the kind of talk that league-makers use, but founders of national states.
What is the universe of "powers" here contemplated? For example, are there any "powers" which, although not granted to the federal government, the states cannot have?...What is meant by "power," and are there any "powers" at all which are not "controlled" by the federal government, the states, or the people of the state? I ahve previously, in trying to understand what people think about this, asked if such things as the power to murder or cannabilize are included. Assuming they are not, please help me define the kind of "power" that is reserved, delegated, divided up, etc., in these texts.
Allow me to suggest that we are not ‘contemplating’ a “universe of ‘powers.’” We have been discussing secession: not murder, and not cannibalism. Would you suggest that secession (formal withdrawal from membership in an association) is somehow comparable to murder or cannibalism (illegal homicide)? Previously, you suggested (without constitutional grounds) that secession was equivalent to ‘revolution:’ do you have any better basis for your comparison this time around?
You are certainly right that Justice Thomas does not read this amendment as reserving powers to individual citizens of the nation. But this last sentence is interesting -- it denies a Constitutional "mechanism" by which the "undifferentiated people of the Nation" might act -- and by "act" I believe he means "act politically." It seems to me significant that he is apparently assuming that there is some such "undifferentiated people" of a "Nation," but that the political order established by this people does not include exercise of political power by that people directly.
What “political order,” precisely, do you assume was “established” by “the undifferentiated people of the Nation as a whole?” If such a thing exists, it must exist outside and apart from the Constitution, “because the Constitution does not contemplate that those people will either exercise power or delegate it,” nor does the Constitution “recognize any mechanism for action by the undifferentiated people of the Nation.” Are you referring to some sort of secret or subversive extra-constitutional “political order?”
Wouldn't this be seen in the absence of, for example, the direct election of a president, or of any mechanism for national referendum?
The “the absence of...the direct election of a president, or of any mechanism for national referendum” is entirely consistent with the concept of the United States as a federal union of States – and entirely inconsistent with the suggestion that the federal government was actually established as a national government. John Taylor’s analysis is quite applicable to this matter, as are Mr. Madison’s and Mr. Jefferson’s references to the States as “parties” to the constitutional compact.
By implication, then, the two other bearers of political power referred to would be the states -- meaning the constituted governments of the states, I presume -- and the united body of citizens of particular states. That is, for example, the government of California or the people of California in a referendum.
Actually, those are the only two “bearers of political power,” although the federal government was indeed “delegated” certain powers by the States and their people.
I think this does not bear on the question of whether there is sovereignty at the national level, however -- which Justice Thomas in this very quotation implies when he speaks of the "Nation as a whole" and its "Government."
Please be specific: quote Mr. Justice Thomas’ comment in its entirety. Where, precisely, does he recognize a “Government” of the “Nation as a whole?” I believe he stated that “the Constitution does not contemplate that those people will either exercise power or delegate it,” nor does the Constitution “recognize any mechanism for action by the undifferentiated people of the Nation.” Any “Government” of “those people” - if it in fact exists - must therefore be extra-constitutional in nature.
I'll repeat my simple little argument (which I think you grant, actually) on this and then go to bed. If there is any genuine sovereignty at the national level -- albeit incomplete sovereignty because of the remainder of sovereignty's natural whole being possessed by the states -- then there exists an underlying compact of the whole which is governed by that partially sovereign government.
You apparently assume that the federal government is based upon a division of “sovereignty,” rather than the ‘delegation’ of powers. The Constitution recognizes the right of the States, and not the federal government, to amend the compact. Given that such amendment could ‘annihilate’ the federal government (as John Taylor noted), “sovereignty” would seem to reside with the States and their people, while the federal government would appear to be a creature of the compact, to which certain powers have been (possibly temporarily) delegated.
But compacts cannot be unilaterally withdrawn from by individual components, or even clumps of components. Only by something reasonably understood as the act of the compacting community can the compact be modified.
Once again, an assumption on your part – if a right or power is reserved under the terms of a compact, the exercise of such right or power can hardly be considered illegitimate (I refer you to the Tenth Amendment, which I believe was previously quoted). And if you are suggesting that “the compact be modified” to allow ‘unilateral withdrawal,’ I must inquire: which clause must be changed? Which specific clause of the Constitution currently prohibits secession, and would have to be "modified" to allow such action?
The departure of states from the Union, like the arrival of new ones, pertains the community of the whole. Additions to that whole are accomplished within the Constitution by the procedures for the admission of new states. There exists no such mechanism for the subtraction of states, which is equally necessarily an action of the whole.
Once again, an unfounded assumption on your part. Your right to determine who may, or may not, be admitted to your home in no way necessitates or presupposes a right to refuse anyone permission to leave. “Additions” are fundamentally different than ‘departures.’ If the Constitution contains “no [specific] mechanism for the subtraction of states,” it is equally true that such action is nowhere “delegated...nor prohibited” – or even mentioned. The power of secession must therefore be reserved to the States and their people by the Tenth Amendment.
I am quite happy if we can agree that on the question whether there exists in any real sense a national political community - a "Nation" or "Country" -- will depend the question whether participants in the federal organization can withdraw unilaterally.
Again, if any “national political community” exists, it exists outside the Constitution – and therefore can have no say regarding “the question [of] whether participants in the federal [constitutional] organization can withdraw unilaterally.”
...(I)f there is one theme that leaps out of that text, it is that what is at stake in the ratification question is not whether an effective league of sovereign states is a good idea, but whether national union will receive a government adequate to it, for without such a government, the national union must be abandoned. That is not the kind of talk that league-makers use, but founders of national states.
Another assumption on your part – that a “league” would be ‘inadequate.’ And as John Taylor noted (and the records of the convention make plain), the delegates to the Philadelphia convention considered several proposals for national governments, and discarded them all...
;>)