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.
The problem was that there is no such thing as 'state rights'only individual rights.
All gov't (local, state and Federal) are for the purpose of defending the individual from arbitrary power of either of these governments.
Neither one is inherently better then the other, only easier to control since it is smaller (Local and State).
Most people mean powers of government not specifically delegated to the federal government when they talk about "states rights".
Inconvenient truth.
The problem was that there is no such thing as 'state rights'only individual rights.
Those of us that believe so are a very small minority at FR, surprisingly enough.
Most here have surrendered to the idea that if you can get a State to enforce 'the rules', [as you would have them] its 'right'.
-- It's also the Constitution turned on its head.
I think speaking of any branch of Gov't as having 'rights'confuses the reason why we have gov't.
The States have their areas of responsiblities and power as does the Federal gov't.
Neither have 'rights'.
This is what caused so much confusion before the Civil War.
This was Calhoun's notion that the State was itself a sovereign entity and had 'rights'to protect when it was, in fact, a part of the Federal system whose function was to protect individual rights.
Most people mean powers of government not specifically delegated to the federal government when they talk about "states rights".
Conveniently [there's that word again] ignoring that States are prohibited by the Constitution from infringing upon individual rights.
You say that the Cons prohibits the states from infringing on individual rights. This isn't quite true. The Cons pretty much leaves the states free to deal with civil liberties as they see fit. The prohibitions on the states are found in art 1 sec 10, and as you can see, those prohibitions are pretty thin. It's not that the framers didn't care or anything, it's just that the states were used to dealing with their own issues, and would have certainly had problems if the new G had come along and said, "Here now, we're the new boys in town and you will do this and this with your laws, and that's that."
That is because the South did a very good job in historical revisionism after the Civil War.
According to them, The war was not really about slavery but 'states rights'(war between the states etc)
Many conservatives accepted this as being 'gospel'and the civil rights movement (brought about in reaction to the Jim Crow laws) was yet an additional attack on the 'states'.
The South before the Civil War rejected the Declaration of Independence and its statement that áll men were created equal...ánd it was determined after the Civil War, to ignore it.
I said 'most people'. I know better.
Responsibilities is a much better description.
I think Sen.Calhoun began to use the term.
When in doubt ask the author. 'tis a pity how the true spirit of the Constitution is pretty much gone.
Ray: --- You say that the Cons prohibits the states from infringing on individual rights. This isn't quite true.
The Cons pretty much leaves the states free to deal with civil liberties as they see fit.
You're ignoring Art. VI and the Amendments.
The prohibitions on the states are found in art 1 sec 10, and as you can see, those prohibitions are pretty thin.
Our Bill of Rights is 'thin'?
It's not that the framers didn't care or anything, it's just that the states were used to dealing with their own issues, and would have certainly had problems if the new G had come along and said, "Here now, we're the new boys in town and you will do this and this with your laws, and that's that."
Yep, there was a lot of fancy language used, & compromises made, -- in order ratify our Bill of Rights, -- but they're still pretty clear to me.
Do you have a problem with States obeying them as the Law of the Land?
Convenience has become an entitlement.
When in doubt ask the author. 'tis a pity how the true spirit of the Constitution is pretty much gone.
I always like to ask some of FR's resident defenders of the "general welfare" to enlighten us all.
Art VI, unless I'm missing something, is not a prohibition on the states. The Bill of Rights is irrelevant. I am discussing the ORIGINAL cons, which was ratified w/out a BOR. Furthermore, the BOR did NOT apply to the states until after the Civil War. The BOR applied ONLY to the Federal Gov. Many of the states, for example, (VA included) actually had state supported churches. If you lived in VA,you paid taxes to support the state church. That simple. Again, the prohibitions in Art 1, sec 10 are indeed thin.
If "general welfare" means that the feds can legislate anything, then why bother enumerating the powers in Article 1, Section 8? I defer to Mr. Madison's explanation...I wish more would but I fear that most of todays voting citizens are blissfully ignorant of the limitations intended on the federal government.
You are correct. Additionally, why would the Framers have locked themselves in that oven in Philly for 3 mos if they were gonna produce a cons that said, essentially, "Oh, the G can do whatever it wants, whenever it wants, so long as they do it for the undefined, vague, hazy, mean anything general welfare." They could have done that in five mins.
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