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Our View of the Tenth AmendmentThe Constitution applies to the federal government. Its sole purpose was to spell out what the government can do.
The key principle of the Constitution is quite simple: positive grant. Unfortunately, this is not a phrase that many of us hear in daily banter these days. But, it's not a complicated principle at all.
What it means is this - the US federal government is authorized to exercise only those powers which are specifically given to it in the Constitution. Nothing more, and nothing less.
Period. End of story.
The founders felt so strongly about this principle that they codified it in law as the Tenth Amendment:
"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."
Just a casual review of the activities of the federal government would make clear that there's very little that it does which is actually authorized by the Constitution.
For many, many years, we've allowed our politicians to interpret and bend the rules of the Constitution; ostensibly for good reasons. But, we have to face reality. When you allow politicians to do this over long periods, eventually you end up with leaders who feel that the law doesn't apply at all.
Sounds familiar, doesn't it?
If we are to have a free society for the future, we must reign in this out-of-control federal government, and return to our Constitution; with a special emphasis on the limitations imposed on government by the Tenth Amendment.
Ah, yes, the forgotten Amendment. It seems to be quite clear, doesn’t it?
Ping.
The tenth what? Thats crazy talk!
Everyone knows Social Security, federal flush toilet laws, and lightbulb bans are constitutional!
If the states weren’t intended to have rights there wouldn’t be any states at this point.
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Perhaps really organized folks (one of whom I am not) would start with the 1st and work consecutively forward each week. I'm starting with the 10th because it is very much in the news and our concerns. |
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I keep this at the top of my home page:
~ 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. ~
—Tenth Amendment to the U.S. Constitution—
“Any objective observer can see that the Tenth Amendment is the most widely violated provision of the bill of rights. If it had been enforced, America would be an astonishingly different country. Today’s atmosphere of big government, ever-expanding entitlement programs, and bloated spending threaten to undermine the very basis of American liberty and self-reliance.
To bring about positive social change and to strengthen our most effective and efficient social institutions, we must rein in government, reject calls for expanded entitlement programs, and demand that government intervenes in only very limited ways and only when absolutely necessary.
The greatest advances of civilization, whether in architecture or painting, in science and literature, in industry or agriculture, have never come from centralized government.”
~ Milton Friedman ~
Now it's fixed. The Constitution's original intent was to be a prohibitive instrument regarding federal power.
“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.”
Their comments don't track straight.
“For many, many years, we’ve allowed our politicians...”
Perhaps in some cases we’ve required our politicians to do such things, not merely allowed them to.
What it means is this - the US federal government is authorized to exercise only those powers which are specifically given to it in the Constitution. Nothing more, and nothing less. ... Period. End of story.The 10th Amendment isn't entirely dead. Though it is treated like a Red Headed Step Child and beaten like a rented mule whenever Congress can get away with it -- by incorporating the Commerce Clause into EVERY 'law' they can dream up.
Thankfully, the "Rehnquist Court" started to reign in Congress and their abuse of the 'CC' in US v Lopez. Justice Alito also tried in his dissent in US v Rybar (1) when he was on the Third Circuit Court of Appeals.
This is from US v Lopez ...
The Court's opinion focused on the third category—regulation of activities that substantially affect interstate commerce. The opinion rejected the government's argument that because crime negatively impacted education Congress might have reasonably concluded that crime in schools substantially affects commerce. The Court reasoned that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so.~~ snip~~
It is important to note that although the ruling stopped a decades-long trend of inclusiveness under the commerce clause, it did not reverse any past ruling about the meaning of the clause. Later, Rehnquist stated that the Court had the duty to prevent the legislative branch from usurping state powers over policing the conduct of their citizens. He admitted that the Supreme Court had upheld certain governmental steps towards taking power away from the states, and cited Lopez as a decision that finally stepped in to check the government's authority by defining clearly between state and federal powers.
'Lopez' was really HUGH. It killed Di-Fi's pet law, the 'Gun Free School Zone'. For years she had a long RANT on her senate web page about the decision being 'unfair' as the 'intent' of the law was what mattered because it was "for the children" and constitutionality shouldn't have mattered (you know, she really is quite nuts).
(1) Rybar and the 'CC' is why Turban Durban and the RATS tried to scuttle his appointment to SCOTUS.
...Pingin meself...
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...”
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.
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.
You know, I don’t think this Government IS acting in accordance with the Tenth Amendment. Any Part of it.
You rendered the Tenth Amendment to chat and godsgravesglyphs! I want Tenth Amendment stories in frontpage or editorial sidebars.
We are all 1895 Southerns.
But the Constitution is a living document, so the 10th Amendment is like the body’s appendix. It’s there, but it no longer serves a useful purpose, at least that’s what my college professor sez..../Heavy Sophomoric Sarc/
...And another thing! Lots of Folks here that claim to be conservative want strict interpretation, original intent. They bash the liberals for going against this, until it suits them to change the intent. For instance, Art.1 Sec.8 Para.11. The same people that hate the UN agreed, like congress, to give the potus the power to declare war...
...So much for sovereignty...