Is the author actually claiming that noncitizens have a constitutional right to vote?
That Federal power is unlimited?
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