the 10th Amendment

Constitution of the United States, via Populist America et al ^ | The Framers

[jwparkerjr]

But they (we) have no one to blame but themselves (ourselves). The states have been systematically bought off for over half-a-century. I don't know the exact figure but I would be nearly a third of the money spent in the various states is federal dollars. The problems that go along with this are legion. Money sent to DC and then back to the state loses a great deal of its spending power. With the money comes all sorts of federal control of programs and activities that were never seen to be the responsibility of government at any level, let alone the federal government.

If we ever hope to wrest control of our lives from the ever-tightening grasp of government we simply MUST do two things to start with: One, get government at all levels out of financing and directing things aren't their job, and Two, stop the use of the tax code to finance social engineering at level of government.

[marsh2]

M’Culloch v. Maryland (1819) was the first step in stretching the enumerated powers: ...”We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transecended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”

On “implied” and “enumerated” powers Jacobson v. Com. Massachusetts, 197 U.S. 11 (1905):

“We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question ( 137, chap. 75) is in derogation of rights secured by the preamble of the Constitution of the United States. Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States, unless, apart from the preamble, it be found in some express delegation of power, or in some power to be properly implied therefrom. 1 Story, Const. 462.”

Justice Brewer in State of Kansas v. State of Colorado, 206 U.S. 46 (1907), establishes that the federal government has no Constitutional claim to power to legislate on issues of a “national character” beyond the specifically enumerated powers. Such undelegated powers are retained by “all the people of the states”:

“...counsel for the government relies upon ‘the doctrine of sovereign and inherent power;’ adding, ‘I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference.’ His argument runs substantially along this line: All legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that state; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the 10th Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ The argument of counsel ignores the principal factor in this article, to wit, ‘the people.’ Its principal purpose was not the distribution of power between the United States and the states, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it,-’we, the people of the United States,’ not the people of one state, but the people of all the states; and article 10 reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, and all powers of a national character which are not delegated to the national government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This article 10 is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning. As we said, construing an express limitation on the powers of Congress, in Fairbank v. United States, 181 U.S. 283, 288, 45 S. L. ed. 862, 865, 21 Sup. Ct. Rep. 648, 650:

United States v. Lopez, No. 93-1260, Decided April 26, 1995 on federal power under the Commerce Clause:
“Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U.S., at 114; Heart of Atlanta Motel, supra, at 256 (`[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.’ (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 (’[F]or example, the destruction of an aircraft (18 U.S.C. 32), or . . . thefts from interstate shipments (18 U.S.C. 659)’). Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U.S., at 37, i.e., those activities that substantially affect interstate commerce. Wirtz, supra, at 196, n. 27.

Justice O’Connor in New York v. United States 505 US 144 (1992) discussed methods by which Congress could “encourage” a State to regulate according to its wishes: “...’Congress may attach conditions on the receipt of federal funds.’ South Dakota v. Dole, 483 U. S., at 206. Such conditions must (among other requirements) bear some relationship to the purpose of the federal spending, id., at 207-208, and n. 3; otherwise, of course, the spending power could render academic the Constitution’s other grants and limits of federal authority. Where the recipient of federal funds is a State, as is not unusual today, the conditions attached to the funds by Congress may influence a State’s legislative choices. See Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum. L. Rev. 847, 874-881 (1979). Dole was one such case: The Court found no constitutional flaw in a federal statute directing the Secretary of Transportation to withhold federal highway funds from States failing to adopt Congress’ choice of a minimum drinking age. Similar examples abound. See, e. g., Fullilove v. Klutznick, 448 U.S. 448, 478-480 (1980); Massachusetts v. United States, 435 U.S. 444, 461-462 (1978); Lau v. Nichols, 414 U.S. 563, 568-569 (1974); Oklahoma v. Civil Service Comm’n, 330 U.S. 127, 142-144 (1947).”

..”if a State’s citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal grant...”

[Ken H]

Good point on the bastardization of the Commerce Clause. Here are a couple of writings on its original meaning:

James Madison to Joseph C. Cabell, 13 Feb. 1829

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces19.html

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Excerpt from Chief Justice John Marshall's opinion in Gibbons:

They [inspection laws] form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.

No direct general power over these objects is granted to Congress; and, consequently, they remain subject to State legislation.

-J. Marshall, Gibbons v Ogden, 1824

Since the New Deal, Congress HAS taken direct general power over many of these objects. Not only has the original meaning been violated, so has stare decicis.

[marsh2]

There were issues about banking and stock issuance among the states, about systems of commerce. I think that early on, the “among” the several states was meant to homogenize those systems, not to regulate commerce itself.

[ronnyquest]

It has to start in the States at the local level. The States have the power to reign in the nutjobs in Washington, D.C. and they can turn the liberals’ collective bargaining against them. If all the States passing these pro-10th resolutions actually stand together and say, “NO!” to the bloated monstrosity in D.C., good things may start happening.

[ForGod'sSake]

Reping for marker.

[Right Brother]

I stand corrected. I was referring to the bill of rights.

[djsherin]

Ah I see.

What I find interesting is that some federalists (like Madison I believe, but don’t quote me) actually believed the bill of Rights was redundant since the idea behind the 10th Amendment was implied and explicitly reserved by at least Virginia’s ratifying convention. The other Amendments too protected rights that the government couldn’t take away anyway since they served no federal interest in the delegated powers Article I Section 8 and the suspension of said rights was not “necessary or proper” for carrying out the delegated powers.

Although seeing as the government has so ignored the Constitution, I’m glad they decided to have a Bill of Rights.

[ForGod'sSake]

I'm going to drop this here since it's the most recent thread on the subject of states' rights/10th amendment.

I have taken it upon myself to create a ping list for articles and discussions relating to recent developments within several states concerning states' rights, and in particular 10th amendment issues. I went over previous threads til I was bug-eyed to pick up names of Freepers that visited these type threads over the last few days. I know I probably missed some so if you're not on this ping, let me know and you'll be added. Conversely, if you received this ping and would rather not participate, let me know and I'll remove you from the list. If there is enough interest, we can proceed, if not then we'll drop it.

I don't expect this will be a high volume ping list in any case, UNLESS the states become more diligent in their duty to reclaim their rights under the 10th. We'll see. I feel strongly it is incumbent on us as conservatives to support these efforts in any way we can and to that end we should stay informed on any current activity. I also believe it may be our last and best hope to recover our Republic.

BTW, the graphic is a link to all articles tagged with the keyword "10thamendment". The "10thamendment" keyword was settled on for a number or reasons, but if anyone likes something different I suppose we can discuss it. Also, if anyone happens to run across any FR articles on the subject that don't have the "10thamendment" tag, please add it for future reference.

There's another item that's slipped my mind(senior moments) but maybe will come to me. Questions, comments and (mildly)derogatory remarks welcomed.

[Danae]

You know, I don’t think this Government IS acting in accordance with the Tenth Amendment. Any Part of it.

[unkus]

Thanks ForGod’sSake.

[Liberty Valance]

Makes for a great tagline ;0]

[coon2000]

Thank you for the ping list.

[ForGod'sSake]

OK, a "duh" moment. The most important thing about the ping(I shoulda been a rapper) is that you should ping me to any pertinent threads so that I can employ the, er, pinger.

Picked up a few more names; if you want off just say so.

[neverdem]

You rendered the Tenth Amendment to chat and godsgravesglyphs! I want Tenth Amendment stories in frontpage or editorial sidebars.

[MeekOneGOP]

Yes !!!!

[ForGod'sSake]

You rendered the Tenth Amendment to chat and godsgravesglyphs!

Not really, Civ did that, but he probably didn't have much choice. Non-news articles are moved to general/chat personal/bloggers automatically. I know because it's happened to me. It just happened to be the latest article posted and I needed to drop it somewhere.

I want Tenth Amendment stories in frontpage or editorial sidebars.

I'd like nothing better, but apparently the big dog himself would have to say grace over that.

[wastedyears]

Thanks for the work you did and the ping.

[ForGod'sSake]

Waiting on Texas session to open. We’ll see just what our Texas boys are made of. I’d like nothing better than on the first day one of our state patriots submits a resolution, or better yet a bill, for consideration. whOOt! Will be making some phone calls to some of the locals to apprise them of 10th amendment developments just in case they aren’t aware of ‘em   ;^)

[roses of sharon]

(from Walter Williams today)

http://www.ibdeditorials.com/IBDArticles.aspx?id=319076189169608

In explaining the Constitution, James Madison, the document's acknowledged father, wrote in Federalist Paper 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce.”

Has the Constitution been amended to permit Congress to tax, spend and regulate as it pleases or have Americans said, “To hell with the Constitution”?

FGS: Do you think we should concentrate our efforts in our States now? We are getting nowhere with phone calls to our Fed Reps.

Maybe if enough State Republicans use some muscle, we can get some national publicity, and the public's attention. A public that sorely needs some civic and constitutional education.

We must get them away from the spell of Obama....soon.