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.
Of course, the Founders already knew that, but they thought it wise to put it in writing lest future despots attempt to pursuade the people that the right to keep and bear arms is something that the government, either federal or state controls. (Deleted Article VI reference.)
You are correct on a philosophical level. I believe that the Almighty himself is offended by gun control, PERIOD!!! But THAT IS NOT the question we are debating. The question is -- did the BOR apply to the states before the inc. process? No. It did not. Would I have liked it to? With God as my witness, YES! I can still remember praying for the..., well, let's just say praying for bad things for Gov. Wilder when he had the balls to tell me that I could only buy X number of guns per month. Who, exactly, gave that filthy piece of monkey vomit such a right? Philosophically, of course, nobody did. Legally, however, it was quite constitutional. Just to let you know, whenever I want to tell somebody just how magnificent and great this country was at one time, I show them the old newspaper ad (1931)proving that at one time in this country YOU COULD BUY A GODDAM, F'ING MACHINE GUN THROUGH THE MAIL!!!!!!!!!!!!!!!!!!!!!!!!!!! Holy sweet, mother of Jesus! What does that tell you about our people and our government? I mourn for those days.
The enumeration refers to art 1 sec 8, not the BOR.
The ~peoples~ RKBA's is enumerated in our 2nd Amendment to the Constitution.
But, you are correct in saying that FEDERAL gun laws are unconstitutional.
And, I am correct in saying you deny that our RKBA's need not be protected by States like CA, or cities like Chicago.
Deep hole you've dug, ray. Why are you posting on a conservative site, dedicated in part to restoring respect to our Constitution?
Re: your,
"The question is -- did the BOR apply to the states before the inc. process? No. It did not."
Well, if the federal gummint acknowledged and recognized that the people had a pre-existing right to keep and bear arms, the application of Article VI, para 2, forces the states to recognize the same right. Why and how? Because anything that is in state constitutions and judges opinions to the contrary are null and void by virtue of a state's ratification of the Federal Constitution. And that was in effect from Day One. And of course, the Second Amendment keeps Congress from violating the right as well. Heh.
So what to do?
I guess we survive the best we can. Some will survive better than others, for they obey a higher law, I suspect. The law of survival. Sometimes it's a jungle out there.
Note that I'm not all that interested in having an arsenal full of guns. One for each reason and season is suffient for me, unless I wanted to deal in guns.
Will you PLEASE answer these questions?
1. If the BOR was intended to apply to the states, why did we have the inc. doctrine some 80 years after the cons came into being?
2. Why does the 1st amend say "CONGRESS shall make no law"?
3. Why did VA and others have state supported churches well after the cons came into being?
4. Did you not read the quotation from Barron v. Baltimore posted by that other guy?
5. If you disagree with that ruling, you still must accept as historical fact that for 80 years, the FED GOV, the Supreme Court, AND the state govs operated under the assumption that the BOR did not apply to the states. Were they all wrong for 80 years?
Please address James Madison, also.
In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
James Madison, Federalist 39 (emphasis in original)
I have addressed this several times. If the fed gov legally passes a law that it is legally entitled to pass (raising taxes for the army)then it is the law of the land. The supremacy clause does not say that the fed gov may pass any law that it chooses. The suprem cl does not in any way address, modify, expand, contract, or define JURISDICTION. And jurisdiction is what we are talking about. PLEASE answer the following q's. I have no idea why nobody will touch these.
1. If the BOR was intended to apply to the states, why did we have the inc. doctrine some 80 years after the cons came into being?
2. Why does the 1st amend say "CONGRESS shall make no law"?
3. Why did VA and others have state supported churches well after the cons came into being?
4. Did you not read the quotation from Barron v. Baltimore posted by that other guy?
5. If you disagree with that ruling, you still must accept as historical fact that for 80 years, the FED GOV, the Supreme Court, AND the state govs operated under the assumption that the BOR did not apply to the states. Were they all wrong for 80 years?
And address James Madison...
In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
James Madison, Federalist 39 (emphasis in original
More from the Framers...
An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.
Alexander Hamilton, Federalist 32 (emphasis in original)
And more...
Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.
James Madison, Federalist 40 (emphasis added)
And still more...
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State government are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.
James Madison, Federalist 45
One more. Pg 391 of Constitutional Structures: Separated Powers and Federalism, Volume 1 of Amer. Con. Law, Louis Fisher, McGraw Hill, 1990
An exact quote, except for the abbreviations.
"As finally drafted and ratified, however, the first ten amends to the cons – the bor – limited ONLY THE FED GOV. In 1833, the Supreme Court explicitly held (Barron V. Balt) that the BOR restrained ONLY THE FED GOV, not the states… The idea of imposing a national standard on the states was REJECTED by the Sup Ct. in 1873 when it held that the primary purpose of the Civ War amends was to guarantee freedom for blacks. Moreover privs and immuns were to be protected BY THE STATES, NOT THE NAT GOV. Other decisions during this period also REFUSED TO APPLY THE BOR TO THE STATES.
1. Pervear v. Commonwealth,
2. Twitchell v. the commonwealth,
3. the justices v. murray,
4. walker v. sauvinet,
5. US v. cruikshank,
6. hurtado v. CA,
7. presser v. ILL,
8. spies v. ill,
9. mcelvaine vs. brush,
10. o’neill v. Vermont,
11. Maxwell v. dow,
How much more evidence do I need?
The Congress shall have Power...
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
The arming of the Militia is a power of Congress, if it so chooses.
In the matter of arming citizens, the role of States is defined by the underlined portion. IOW, the States have no authority to override a power delegated to Congress.
You are 100 percent correct!!! But, telling the states how to handle their gun laws is not a power given to congress.
True.
. "The suprem cl does not in any way address, modify, expand, contract, or define JURISDICTION.
False. As an example, the laws that Congress passed concerning the Migratory Bird Act in 1918 (based on treaties) passed jurisdiction from the state government to the federal government. The question is, though, were those laws made in pursuance to the supreme law -- did those laws infringe upon the right of a hunter to kill a migratory bird? Before the treaty, you could kill a migratory bird, but not after.
One could argue that the Act did not violate gun rights, but only regulated what you could shoot at. So why did Congress value the life of a migratory bird and pass a law against killing them and not pass a law against killing a person? (Unless it was a federal employee). Because of the 'offenses against the laws of nations' clause, as the birds were trans-national creatures.
But the Bird Kill Act was only the beginning. The fedguv has completely altered the jurisdictional playing field through various devices. Treaties, Commerce clause, 'compelling interest' BS, Welfare clause, ad infinitum. And of course, the jurisdictional playing field was tilted with the 14th Amendment when the federal overlay and federal citizenship was created.
At present, I can't think of one square inch of ground in the U.S. where the fedguv does not have some input over its use or development. State gummints traded its sovereignty for a fist full of dollars.
"And jurisdiction is what we are talking about.
"PLEASE answer the following q's. I have no idea why nobody will touch these.
1. If the BOR was intended to apply to the states, why did we have the inc. doctrine some 80 years after the cons came into being?
Somebody more familiar with that doctrine can answer. I read somewhere that it was fraudently imposed and noboby came against it.
2. Why does the 1st amend say "CONGRESS shall make no law"?
Looks to me like the founders didn't want the federal government to censor speech or get involved in regulating religion. Not sure it worked out right, as 'speech' is being re-defined continually by the courts and religion is being subsidized (faith-based stuff) and is being regulated by the IRS. Hey, where there's a will, there's a way. Something the fedguv has proven over and over with other regulations and powers over municipalities through treaty laws.
"3. Why did VA and others have state supported churches well after the cons came into being?"
I believe they were grandfathered in. According to what I read, some states wouldn't ratify the Federal constitution without that temporary provision. Could be wrong.
"4. Did you not read the quotation from Barron v. Baltimore posted by that other guy?"
Don't remember. What was the essence of it?,
"5. If you disagree with that ruling, you still must accept as historical fact that for 80 years, the FED GOV, the Supreme Court, AND the state govs operated under the assumption that the BOR did not apply to the states. Were they all wrong for 80 years?
Personally, I think if the founders wanted the doctrine of incorporation operational from the beginning, they would have said so in very explicit terms so there would have been no mis-understanding or mis-interpretation later on. I don't think it entered their mind, as the Constitution was written to be understood by the un-educated as well. With no hidden nuances.
"And address James Madison... In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. James Madison, Federalist 39 (emphasis in original
Yes, objects, not subjects. The states are subject to the people. The federal government is subject to the states (or at least they were before the 17th Amendment), and the people are subject to a jury of its peers who judge the law and the facts.
My, how things have changed and gotten out of hand. That's why we are involved in restoring our Constitution. It can only be done (peacefully) by placing qualified people in government. We've strayed from first principles for over 200 years. Let's hope it doesn't take that long to get back to basics.
I apologize if I was not specific enough for your questions. I'm more of a conceptual person that a detail guy. ;>
I'm convinced you're a retard, but that's not the point. I love how dumb little retards say, "I won't counter you in detail, because it's not worth my time." You think the whole world can't see that you've got no case!!!!???? I DEFY you to answer those question, or show me where they've been answered before. I DARE you! You can't! Here's a question, retard, cite me ONE!!!!!!!!!!!!!!!!! ONE!!!!!!!!!!!!!!! con authority, ONE!!!!! textbook, ONE!!!!!!!!!!!!! Sup court case that says the BOR applied to the states before the inc. doctrine. JUST ONE! I've got 12!!!!!!!!!!!!!!!!!!!!!!!! sup court cases on my side, and state state legs of at least 7 of the orig 13 states. Answer the q -- Why did the sup court come along and say, 80 years after the cons came about, "From now on, this particular rite in the BOR applies to the states" if that right applied all along. I await your reply.
And the States were delegated a specific and limited role in the matter of arming citizens.
If I'm 100 percent correct, then the States may not interfere with arming citizens, yes?
The bird stuff is irrelevant,as it involves a TREATY, with super majority requirements for passage. Again, the SUP CLAUS does not give the fed gove rites to pass laws that are beyond the enumeration.
You write... The fedguv has completely altered the jurisdictional playing field through various devices. Treaties, Commerce clause, 'compelling interest' BS, Welfare clause, ad infinitum. And of course, the jurisdictional playing field was tilted with the 14th Amendment when the federal overlay and federal citizenship was created.
You are agreeing with me here. The fed gove has taken over EVERYTHING!!!! You do agree that that is wrong? Again, the question is was the BOR to apply to the states, not "What has the fed gove done over the years."
AT LAST!!! The questions.
1. You are rite, applying the BOR to the states WAS fraudulent. It was never intended and the method by which the BOR was applied was fraudulent.
2. Again, you are rite! The 1st amend says "CONGRESS" because the bor was meant to restrain, well, CONGRESS!!!!!!!!!!!!!! Not my state leg.
3. You are half rite. There was no grandfathering or temporary anything: the cons is short, read it and see. The part you are rite about is that the states would not have ratified the cons if the fed gove was empowered to tell them how to handle their civil rites and such.
4. Chief Justice of the Sup Ct. explaining in detail that the BOR DOES NOT APPLY TO THE STATES.
5. You are again 100 percent rite. If the framers had wanted the BOR to apply to the states, they would have said so. They didn't say so because they didn't want it to apply.
You write... Yes, objects, not subjects. The states are subject to the people. The federal government is subject to the states (or at least they were before the 17th Amendment), and the people are subject to a jury of its peers who judge the law and the facts.
Don't know what to say about this. Madison is referring to "enumerated objects", again, the Fed gove can legislate on enumerated objects only, and you won't find telling the states how to handle their gun laws in that enumeration. You say the fed gove is subject to the states? I thought you've been saying just the opposite, that the sup claus makes the fed gove supreme?
Congress may tell the states how to "Discipline" their militias does not mean that the BOR applies to the states. Are you saying that congress could pass a law saying, "We discipline your militia by demanding that you have no gun restrictions."???
Sorry, I posted before finishing. This is ENTIRELY irrelevant to the conversation. The question is did the BOR apply to the states? If you can prove that another part of the cons outlaws gun restrictions, fine and beautiful, but having part X of the cons say "no gun laws" is not the same thing as saying the BOR applies to the states.
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