Posted on 10/28/2004 6:03:10 PM PDT by tpaine
I. The Tenth Amendment and Enumerated Powers
The Tenth Amendment states: "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."
By its terms the amendment tells us nothing about which powers are delegated to the federal government, which are prohibited to the states, or which are reserved to the states or to the people. To determine that, we have to look to the centerpiece of the Constitution, the doctrine of enumerated powers.
That doctrine is discussed at length in the Federalist Papers. But it is explicit as well in the very first sentence of Article 1, section 1, of the Constitution ("All legislative Powers herein granted . . .") and in the Tenth Amendment's reference to powers "not delegated," "prohibited", and "reserved."
Plainly, power resides in the first instance in the people, who then grant or delegate their power, reserve it, or prohibit its exercise, not immediately through periodic elections but rather institutionally--through the Constitution. The importance of that starting point cannot be overstated, for it is the foundation of whatever legitimacy our system of government can claim.
What the Tenth Amendment says, in a nutshell, is this:
if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government.
At bottom, then, the Tenth Amendment is not about federal vs. state, much less about federal-state "partnerships," block grants, "swapping," "turnbacks," or any of the other modern concepts of intergovernmental governance. It is about legitimacy.
As the final member of the Bill of Rights, and the culmination of the founding period, the Tenth Amendment recapitulates the philosophy of government first set forth in the Declaration of Independence, that governments are instituted to secure our rights, "deriving their just powers from the consent of the governed."
Without that consent, as manifest in the Constitution, power is simply not there.
It is the doctrine of enumerated powers, then, that gives content to the Tenth Amendment, informs its theory of legitimacy, and limits the federal government. Power is granted or delegated by the people, enumerated in the Constitution, and thus limited by virtue of that delegation and enumeration.
The Framers could hardly have enumerated all of our rights--a problem the Ninth Amendment was meant to address.
They could enumerate the federal government's powers, which they did to restrain that government. The doctrine of enumerated powers was meant to be the principal line of defense against overweening government. The Bill of Rights, added two years after the Constitution was ratified, was meant as a secondary defense.
Yet today the federal government exercises powers not remotely found in the Constitution, leading lawyers and laymen alike to say, increasingly, that those powers are illegitimate. How then did we get to this point, where the federalism debate is increasingly a debate about the very foundations of our system of government?
I have discussed that question at length elsewhere. Let me simply summarize the answer here, then turn to an issue that seems to concern the subcommittee, and not without reason--the connection, historically and prospectively, between federalism and "states' rights."
II. The Demise of the Doctrine of Enumerated Powers
Our modern regulatory and redistributive state--the state the Framers sought explicitly to prohibit--has arisen largely since 1937, and primarily through just two clauses in the Constitution, the Commerce Clause and the General Welfare Clause respectively. It is striking that this is so, for if the Framers had meant for Congress to be able to do virtually anything it wanted through those two simple clauses, why would they have bothered to enumerate Congress' other powers, much less defend the doctrine of enumerated powers throughout the Federalist Papers?
That is the question that cries out for explanation.
The explanation, of course, is that the Framers intended no such thing. The modern state arose through judicial legerdemain, following Franklin Roosevelt's notorious 1937 Court-packing scheme.
In a nutshell, the Commerce Clause, which gives Congress the power to regulate commerce among the states, arose out of concern that the free flow of commerce among the states might break down if states, as under the Articles of Confederation, had the power to erect protectionist measures on behalf of indigenous enterprises. Thus, its principal aim was to ensure the free flow of commerce by giving Congress the power to regulate, or make regular, such interstate commerce.
Not remotely did the Framers intend that the clause would be converted from a shield against state abuse--its use in the first great Commerce Clause case, Gibbons v. Ogden -- into a sword, enabling Congress, through regulation, to try to bring about all manner of social and economic ends.
Yet today, following the Supreme Court's reversal in 1937, that is just what has happened as Congress claims power to regulate anything that even "affects" interstate commerce, which in principle is everything.
The General Welfare Clause of Article 1, section 8, was also intended as a shield, to ensure that Congress, in the exercise of any of its enumerated powers, would act for the general rather than for any particular welfare.
Here, however, Hamilton stood opposite Madison, Jefferson, and others in thinking that the clause amounted to an independent, enumerated power--albeit limited to serving the general welfare. But as Congressman William Drayton noted in 1828, if Hamilton were right, then whatever Congress is barred from doing because there is no power with which to do it, it could accomplish by simply appropriating the money with which to do it.
That, of course, is precisely what happened, which the Court sanctioned when it came down on Hamilton's side in 1936, then a year later went Hamilton one better by saying that although the distinction between general and particular welfare must be maintained, the Court would not itself police that distinction.
Congress, the very branch that was redistributing with ever-greater particularity, would be left to police itself.
With the Court's evisceration of the doctrine of enumerated powers, the modern regulatory and redistributive state poured through the opening. One result of the subsequent explosion of federal power, of course, was the contraction of state power where the two conflicted--and the attendant federalism dilemmas.
At the same time, individual liberty contracted as well--the preservation of which was supposed to be the very purpose of government.
And finally, questions about constitutional legitimacy never did go away. As government grew, the idea that a Constitution designed for limited government had authorized that growth of power became increasingly difficult to sustain.
III. Federalism and "States' Rights"
But what about the sorry history of "states' rights" as a doctrine that southern states invoked by way of defending slavery and then, after the Civil War, the reign of Jim Crow? Does this not give weight to the question, "Why doesn't Washington trust the states?" Indeed it does, but here too there has been substantial misunderstanding over the years, with a seminal Supreme Court case at its core.
The tragic compromise that led the Framers to accept slavery in their midst is well known. It took a civil war to abolish that institution, and the Civil War Amendments to secure the legal rights of the freed slaves.
Unfortunately, no sooner had those amendments been ratified than the principal vehicle for insuring substantive rights against state action, the Privileges and Immunities Clause of the Fourteenth Amendment, was eviscerated by a deeply divided Court in the Slaughter-House cases.
The clause has never been successfully revived.
On Blackstone's view, the clause referred to our "natural liberties." The Civil Rights Act of 1866, which Congress reenacted in 1870, just after the Fourteenth Amendment was ratified, made it clear that the clause was meant to protect the very rights Jim Crow went on to deny.
The demise, then, of the Privileges and Immunities Clause had nothing to do really with the Tenth Amendment or the doctrine of enumerated powers. It was a blatant case of judicial abdication that eviscerated the clause, thereby leaving the freed slaves in the South to the mercies of state legislatures.
Nor is there anything in current efforts to revive the Tenth Amendment and the doctrine of enumerated powers that should give pause--provided only that we are clear, and the judiciary is clear, that the Fourteenth Amendment gives the courts, through section 1, and the Congress, through section 5, the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States.
Were the Congress to move to do that, the promise of the Civil War Amendments would at last be realized, not in opposition to federalism, but in harmony with it as perfected through those amendments.
Yes, I realize that. I was only placing emphasis on the unconstitutionality of it because it was not given the litmus test of constiutionality before the amendment was passed. Which was later repealed. Which proves that it was of a light and transient reason and should not have been considered. My second point was that it is unconstitutional to remove a part of the supreme law. When the amendment was repealed, that's just what they did. Another violation, albeit a necessary one.
But in so doing, they established a precedent for removing parts of the supreme law.
But in so doing, they established a precedent for removing parts of the supreme law.
I don't quite understand your reasoning there. The whole point of the process of amendment is adding to or removing parts of the supreme law. It was necessary to pass an amendment because enacting prohibion would have been unconstitutional without it.
That's the typical robertpaulsen, robertpaulsen, robertpaulsen, tactic.
He ignores whatever he doesn't care for, then comes back tomorrow with the same specious argument he had yesterday.
Getting a constitutional amendment passed is difficult, I would think getting one removed would be also.
Words have meaning.
The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding".
This is a fact, not my interpretation.
Harder, actually. AFAIK there is no process for removing an amendment once it's ratified and passed.
It seemed when FDR got elected, it got repealed.
The passed another amendment which nullified the first one.
THE NATIONAL PROHIBITION LAW HEARINGS, 1926, ( those interested in the WOD should check it out) [Free Republic]
Address:http://www.freerepublic.com/forum/a3ae8489003ca.htm
Thanks.
Your link did not work
And my point was that the amendment itself was unconstitutional, regardless of what the majority of the states or people wanted. It infringed upon the 'pursuit of happiness' (property rights). As i stated a bit ago,:
"The prohibition of the sale of intoxicating liquors in the United States was repugnant to the supreme law which protects private property and the disposal and sale thereof."
I will always be of the opinion that even if everyone in the country voted that it is illegal to sell cream soda, it will still be my right to do so.
As far as your point in removing parts of the supreme law, that's a 'no-no.' We can add to the constitution as long as what is added is in pursuance to the rest of it. But we cannot remove roadblocks to insure pursuance.
Okay. Do you have any historical background to support that interpretation?
Weird.
It works from my link page, but not here.
You could probably get the article through an FR search. It was posted in 2001.
THE NATIONAL PROHIBITION LAW HEARINGS, 1926, ( those interested in the WOD should check it out) [Free Republic]
But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a Foederal Government. It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood though it had not been expressed. - Alexander Hamilton, Federalist, no. 33
It was hoped that the process would be so difficult that bad amendments would be avoided.
The difficulty lies in determining who would have the authority to declare a constitutional amendment unconstitutional, and how you would prevent abuse of that authority.
In that you weren't specific, I'll be general. Article VI, para 2, as we all are aware of by now, is the supreme law of the land. At least it delineates how the supreme law should be applied.
In that we the people wrote the constitution to provide a mechanism to secure our rights, it should be self-evident that our rights are the supreme law. Why should be write a constitution that removed our rights? Well, we didn't.
We just got through fighting the king's men to proclaim them.
So life, liberty and the pursuit of happiness was the promise of the American Revolution. The right to self-determination and personal sovereignty. Every man a king under his own fig tree. (generically speaking, these days.)
Our charter was worded to express that ideal. In that individuals sometimes encroach on another's rights or space, we created a legal mechanism to punish each other when we went astray.
In the simple wording and logic of Article VI, para 2, (the supremacy clause) it is shown that neither the state nor federal government can infringe upon or impair that ideal, as Congress can make no law which is not in pursuance to that ideal. Nor can the state.
Otherwise there would have been no need for the American Revolution.
That is about as historical as I'm going to get right now.
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