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.
You're going to 'report' me for failing to rebut what I consider an arcane, nitpicking & pointless claim made by inquest?
Feel free, by all means.
If there's any justice, you'll run into the little known abusing abuse rule, and be chastised for your own hypocrisy.
What kind of an oligarchy you got goin' on there?
There are many dry towns and communities across the United States. I suppose if I were to do some research, I could look up the various ordinances to find out the background and reasons for their decisions. Why? Would that make a difference to you?
Why do I have this feeling that no matter my response, it would be unacceptable to you? Tell me that you didn't just ask me to waste my time answering your question. Tell me that there would be some answer that you would find acceptable.
Fine. Then use that one.
I see. So the states are not bound by this? They may support their own state religion?
Legally speaking the original States that had them could make a good case to that effect. But seeing that all States must have a republican form of government, I think they would be denied that power by a USSC opinion. Supporting a State religion infringes on the rights of other State citizens. As Utah found out in its fight for Statehood.
You have a poor memory. You lost the argument.
Whatever.
Golly, tpaine, I guess I'll just have to take that chance.
One last time. inquest made an excellent point in his post #230 that no one but you would consider "arcane, nitpicking & pointless".
Address it or go down with your sinking ship, the USS Troll. I'm getting tired of you clogging up these threads with wild unsupported claims that serve no purpose other than to pi$$ people off.
As an aside, there is something about the use of that phrase that just doesn't rub well. I know what it is, as do all free men, but will let it pass for now.
Golly, tpaine, I guess I'll just have to take that chance.
I encourage you to do so.
One last time. inquest made an excellent point in his post #230 that no one but you would consider "arcane, nitpicking & pointless". Address it or go down with your sinking ship, the USS Troll.
You think its so great, rephrase the argument in your own words, [quoting mine in context] & I'll address it.
I'm getting tired of you clogging up these threads with wild unsupported claims that serve no purpose other than to pi$$ people off.
Tough. -- You can't counter my facts & logic, so you characterize my arguments as wild & unsupported. Poor little fella, you're getting all frustrated & emotional.
"Supporting a State religion infringes on the rights of other State citizens."
Right. And supporting a National religion infringes on the rights of other citizens. So you're saying the 1st amendment wasn't necessary.
The "context" of your quote is from #198. Anyone can go read it, and then read what I said about it at #230. Feel free to provide any additional context to your statement that you think is somehow necessary.
But if you fail to address it at all, then it'll be clear who's fleeing the field, and it won't be me.
So you're saying the 1st amendment wasn't necessary.
247 posted on 10/31/2004 9:18:07 AM
PST by robertpaulsen
______________________________________
I didn't say that. Why are you assuming I did?
Let's not. What is it about "should be allowed" that "just doesn't rub well".
For crying out loud, you're the one who said, "a proprietor should have the choice of whether or not to allow smoking or non-smoking".
Or maybe you're saying that he should have the choice, but only when it comes to smoking? That "fascism" (your word) in other areas of the proprietor's business is OK with you as long as it doesn't regulate smoking?
It's just fine the way it is. Answer it, troll.
I considered your claim arcane, nitpicking & pointless.
You think its such a great point, rephrase the argument in more detail [quoting mine in context] & I'll address it in kind.
Answer it, troll.
Look paulsen, I know you're trying to get this thread sent to the backroom, or even deleted, so don't expect me to rise to your baiting.
That's like saying that all our rights are in force except on Sundays, Mondays, and Tuesdays. Heh.
Okay, let's take another example:
Pretend for a moment that we live in a town of 100 people out in the badlands of New Mexico, era 1830.
Everybody wears guns because of the abundance of transient gun runts, thieves, robbers, bullies, etc., passing through town. We have not had a really bad shoot out for years on end. That is because nobody wants to get shot back at and die an instant death. (Excuse the grammar.)
Guns are as common as boots. Noboby pays attention to them any more than they would pay attention to someone picking their nose.
Some parents even let their kids wear guns or tote rifles, becoming adept and responsible in their use, care and handling.
One day somebody got drunk drinking my beer and accidentally shot himself in the foot and wasn't able to plow his field that fall.
His wife, really, really pissed because they wouldn't have the money to buy that fancy piano she always wanted, decided that enough is enough, ran for sheriff, won, and promptly posted a sign at the city limits and all over town that totin' guns in the street and in the beer halls and casinos was no longer allowed. Check your guns at the door from now on.
Soon thereafter, a band of cattle rustlers, rusty, crusty, and armed to the teeth passed through town one sunny day and immediately noticed that nobody was armed.
Well, you can imagine what happened if you've read enough phony western books or have a rack of old time western movies stashed next to your VCR.
The townsfolk counted their dead, replaced the windows at the bank, and voted to outlaw guns completely. Yup. That would work. It was a compelling state interest to coral all those guns that kept killing people, don'tcha know.
The town population began to dwindle, the undertaker was getting richer, and the cemetery was full, but few there was who could draw any correlation between the mortality rate and the absence of guns. Well, one of the residents decided that the town was going crazy and decided to wear his guns anyway lest the town decided to outlaw boot-wearing and nose-picking at some point.
Of course, he was arrested and thrown in jail. The law, you know. Strangely enough, he was the only free man in town, though he was the only one in jail.
Well, if supporting a State religion infringes on the rights of other State citizens, then surely supporting a National religion would infringe on the rights of other citizens.
Do you agree?
Now you posted that even though the state has the power to form a state religion, "I think they would be denied that power by a USSC opinion."
Did you not say that?
Then it logically follows that if the National government has the power, they too would be denied that power by a USSC opinion.
Don't you agree?
So, why have the Establishment Clause of the 1st amendment? Hell, according to you, anybody who forms a church will be overrridden by the USSC anyways.
The only logical answer is that the 1st amendment, all of it, only applied to the federal government. The states were free to form their own religion, and did. States that had their own religion in 1789 were admitted to the Union. They maintained these religions until the early 1800's, and disbanded them on their own.
Today, the 1st amendment, all of it, applies to the states, Justice Clarence Thomas' opinion notwithstanding.
But not incorrect, interestingly enough. And since you agreed to address it, it can't be that pointless.
You think its such a great point, rephrase the argument in more detail [quoting mine in context] & I'll address it in kind.
I'm not going to try to read your mind. It's up to you to request the specific detail that you think is missing from #230, and to provide the context to your statement that you think is necessary. But of course, you're not going to do that, because all you're really doing is looking for excuses to stall.
I responded again because you made like you were finally going to address the statement. But if you don't, then as before, you can babble to yourself, since you'll have effectively abandoned the argument.
Never heard of the "Blue Laws", huh?
As to your gun-totin' Wild West fantasy, bear in mind that some of these towns required visitors to check their guns at the Sheriff's office. So much for "everybody wears guns".
But, we do digress, don't we? And, my oh my, you're getting way behind in your answers to me.
In your post #240, you said, "Before I address your other points ...". Well, now it's time.
Any comments on my post #242 to you?
Plus, I insist on an answer to my post #251 to you. What did you mean by, "As an aside, there is something about the use of that phrase that just doesn't rub well. I know what it is, as do all free men, but will let it pass for now"?
--- all you're really doing is looking for excuses to stall.
Dream on.
I responded again because you made like you were finally going to address the statement.
But if you don't, then as before, you can babble to yourself, since you'll have effectively abandoned the argument
I've seen no effective argument from you. Clarify your statement, or see it ignored. The choice is yours.
It's no problem for me if you want to ignore the very clear statement at #230. It'll only further prove your tendency to run away from the consequences of your own words.
But if you're really going to insist that it isn't clear, then you're free to ask a specific question about it. You won't, of course, because you're just blowing smoke.
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