Posted on 10/17/2020 10:32:20 AM PDT by where's_the_Outrage?
WH Press Sec: WH looking at surge in COVID numbers Trying to parse the difference between polls and Trump's approval rating The Hill logoHypocrisy on the high court: 'Textualists' and the Tenth Amendment
Chief Justice John Roberts's majority decision in Shelby County v. Holder (2013) eviscerated a crucial provision of the landmark Voting Rights Act of 1965 that required pre-clearance by the federal Department of Justice for changes in voting in state and local governmental units which had a pattern of past discrimination. The decision flew in the face of the Court's precedents. Its laissez faire attitude has triggered huge efforts to suppress the vote and a flood of subsequent litigation.
s Justice Ruth Bader Ginsburg pithily suggested in her already-famous dissent in the case, putting aside an umbrella that has kept you dry during a rainstorm will leave you drenched when the storm returns. Though the Court ignored its own frequent celebration of the right to vote as "a fundamental right," it's more dramatic offense was its clear failure actually to pay attention to the very constitutional text upon which it relied.
(Excerpt) Read more at msn.com ...
Is the author actually claiming that noncitizens have a constitutional right to vote?
That Federal power is unlimited?
I don’t think the author knows what he wants his point to be.
I see his article as pointless, and typical leftist drivel.
This is the former dean of University of Hawaii law school.
This is just plain silly. The “people” was understood at the time as the “populus,” i.e. the citizens that made up nation, not merely as individual persons without regard to their relation to the nation. (See the famous Roman abbreviation “SPQR”: the Senate and People of Rome.) Anyone that had the same classical education that the founders had would have understood this.
He appears to be attempting to make a significant difference out of nothing.
Hawaii has laws?
Coulda fooled me. When I look at their reps in Congress, all I see is coconuts.
Joseph Sobran
Judge Bork and the Tenth
WASHINGTON — Nearly a decade ago, the Senate rejected Judge Robert Bork’s nomination to the U.S. Supreme Court. He was defeated largely because he insisted that a primary test of the Constitution’s meaning is the “original intent” of its authors — an idea abhorrent to liberals, who prefer to treat the constitution as a malleable “living document.”
I've often wondered how Judge Bork would have ruled as Mr. Justice Bork. Nobody doubts that he would have lifted the court’s intellectual level. But he might have had his sharpest disagreements not with the court’s mundane liberals. but with its two keen conservatives. Antonin Scalia and Clarence Thomas.
Judge Bork has often dismissed what he once called “conservative nostalgia for the Tenth Amendment.” Justice Thomas in particular has insisted that the Tenth still demands serious consideration.
The Tenth is like no other provision of the Constitution. It says that the powers that aren’t delegated to the federal government belong to the states and the people.
Unlike, say, the clauses that authorize Congress to raise armies and coin money. the Tenth is not specific. It is comprehensive. It either means everything or it means nothing, because. unlike other clauses. it tells us how to interpret the rest of the Constitution.
The big battle over the Tenth occurred during the New Deal, when the Franklin Roosevelt administration wanted to expand federal power far beyond anything explicitly listed in the Constitution. Roosevelt's troubles were over when his compliant court ruled in 1940 that the Tenth Amendment was no more than a “truism.” That is. it meant nothing. A couple of years later the court ruled that Congress’ power to regulate interstate commerce meant that it had the power to regulate — I paraphrase loosely — damn near everything.
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 passé. 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!
It’s no answer to say that this is a democracy, and that if this is what the people want, so be it. The Constitution was supposed to protect us from pure majority rule.
What it comes to now is that the Constitution may be distorted by either majoritarian political pressures or the minoritarian eccentricities of a federal judiciary. The one thing it doesn’t do is define (and thereby limit) federal power.
What would the Tenth mean in practice? It would mean that a minority could challenge any law passed by Congress, and Congress would have to prove that it had the constitutional power to enact that law.
This was the clear “original intent” of those who wrote and ratified the Constitution, and the clear understanding of generations of American afterward. The borders of federal power were always disputed, but not the principle of enumerated powers. Now Judge Bork says that the principle itself is lost.
Just one question: So why pretend we have a constitution?
© Universal Press Syndicate
That would explain this nonsense!
I have long thought Bork was way too liberal. The first half of my tag line is as anti-Bork as it is anti-New Deal. No one should be on the court who is not hell-for-leather to invalidate massive bureaucracies.
If there were room in my tag, I would add the pre-New Deal decision J. W. Hampton, Jr. & Co. v. United States (1928) which allowed Congress to delegate legislative power to executive agencies. The most fatal argument against the delegation of constitutional power is that Congress cannot get it back without a 2/3 vote in both houses should the President veto the attempt. A delegated authority must be revocable at will but there is no such mechanism and therefore no such authority. Find me a lawyer who has ever argued this obvious line though. (The law in the end is whatever those in power want to force down our throats, so no logical argument is worth a damn without the guns to back it up, and no argument is invalid which has the guns.)
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