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.
Absolutely and positively.
If the BOR was incorporated by the 14th amendment, then the WHOLE thing was incorporated.
'Incorporation' is not needed, when it is realized that the 14th simply reiterated that the BOR's always did apply to ALL levels of government in the USA, just as Article VI plainly says.
Incorporation is a legalistic fiction, invented by the USSC to increase its power.
As I noted somewhere else: either the 14th was meant or it was NOT meant to make the BOR apply to the states,
Reading the ratification debates from 1868 makes the issue clear. The 14th was meant to re-affirm that the BOR's applied to the states. Much of the debate centered on States that were infringing on former slaves RKBA's.
The BOR was never meant to apply to the states, and I thought your position was NOT based on that falsehood. See the one dozen cases below:
"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 gove. Other decisions during this period also refused to apply the BOR to the states, (Pervear v. Commonwealth, Twitchell v. the commonwealth, the justices v. murray, walker v. sauvinet, US v. cruikshank, hurtado v. CA, presser v. ILL, spies v. ill, mcelvaine vs. brush, o’neill v. Vermont, Maxwell v. dow,
Pg 391 of Constitutional Structures: Separated Powers and Federalism, Volume 1 of Amer. Con. Law, Louis Fisher, McGraw Hill, 1990
Why does the 14th amend fail to even mention the BOR?
Why does the 14th amend fail to even mention the BOR?
The 14th makes its points as written. It does not need to refer to previous Amendments in order to be understood.
Isn't a government violating a fundamental right by removing your means of defending yourself and your family?
We usually react to this philosophic/pragmatic disparity by saying, "I don't agree with the law, but that's the law." We then go about changing that law in the political arena.
If your State outlawed gun ownership, would you turn in your firearms?
"If your State outlawed gun ownership, would you turn in your firearms?"
Could be an interesting answer, seeing that database lives in CA, and they have indeed "outlawed" certain types of guns.
Did you turn in any 'assault weapons', db? -- More to the point, do you think anyone in our fair State did?
Nothing could be more incorrect. It does not need to refer to previous amendments to make its point??????????????????? Well it sure would have helped, since it is so incredibly unclear that you are about the only human being on earth who reads it the way you do.
I thought the Constitution was created to secure our rights? Looks to me like they provided a way to over-ride state laws and constitutions which infringed on rights with the 'notwithstanding' clause of Article VI.
< snip >
You already know that the Bill Of Rights granted no new powers to the federal government but further restriced the use what powers it had.
It's obvious that Amendment 1 says Congress shall pass no laws, etc. But that is peculiar to that amendment alone.
Amendment 2 appears to be a declaration to all governments, as it did not include the word, 'congress.' Again, the 'notwithstanding' clause should clarify the inclusion of state governments as well.
"No doubt you'll recall that Madison again tried to give the federal government that power to protect some rights from the states in the Bill of Rights, but again it was rejected by congress."
Then why did they include the 'notwithstanding' clause? Exactly WHAT did the clause prevent the state's and courts from legislating if it were not laws and amendments repugnant to and not in pursuance to the Bill of rights/Constitution (a seamless document)?
"The Founders recieve as little regard from people who want to find a federal protection of their RKBA as it does from those who want to find a federal protection of their "right to privacy"."
I suppose if someone wanted to sue for privacy, it would have to go to the SCOTUS. That's what happened, and they got their privacy.
BUT something is not consistent here. A few wanted to sue for keeping and bearing arms, but the SCOTUS would not hear the case. Something is amiss. Homicide is a state issue, so tell me why the Fedguv got involved with Roe? Seems to me their logic is faulty, unless the court wanted to encourage both the murder of the unborn and the unarmed. In either case, they violated the protection of life with Roe and left the people at the mercy of killers with gun control laws.
"But we just can't have a living constitution. Federal RKBA have to be found in the 14th Amendment's "privileges and immunities". Like it or not."
Sorry, but life is not a privilege or immunity decreed, pronounced and authorized by government. The people were engaged in self defense with weapons long before the 14th Amendment. The right to Life (which is not a right unless you have the means to protect that life) didn't start with the 14th Amendment. And law enforcement is not in the business of protecting your life, as a matter of record. If not them, who? Why you, of course. Think not that we can authorize policemen to arm themselves to protect their lives if we did not have the same right as individuals?
I am still waiting for you to provide one single piece of evidence for your positions. Just one. Also, is this your new fallback position -- that the 14th amend is the key to happiness? Have you given up on the BOR applying to the states from inception. Just in case you haven't, please read below. Below is what we call evidence, as opposed to repeating things over and over again.
Pg 391 of Constitutional Structures: Separated Powers and Federalism, Volume 1 of Amer. Con. Law, Louis Fisher, McGraw Hill, 1990
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 gove. 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. IL,
8. Spies v. IL,
9. McElvaine v. Brush,
10. O’Neill v. Vermont,
11. Maxwell v. Dow
Oh, here's some more evidence that was never responded to.
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)
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)
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)
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
Well Madison said they didn't.
He wanted them to- maybe he should have lied and said they did?
Oh, I seem to be slipping. Refer to the Louis Fisher quote and notice again, that the SC ruled that the Civil War amends (13, 14, and 15th) were held NOT to incorporate the BOR.
As a matter of history and fact, the 14th was passed in order for the the federal government to bestow priviliges and immunities (heretofore called 'unalienable rights') upon non-Citizens who just walked off the plantation, free as a bird by virtue of Amendment 13.
Our government cannot bestow 'rights,' per se, so it did the next best thing when it realized the states were going to be slow in recognizing non-Citizens were of equal stature and status. Even Lincoln didn't want non-Citizens living in his neighborhood. No one will argue that the states provided protection for non-Citizens, nor were they compelled to admit them to their Citizenry as equals under existing laws.
If the states were not going to protect them, then the federal government had to protect them. In order to do that, they had to create a new identity for them and a federal zone and jurisdiction for them to live where federal law would protect them -- which it did with the 14th which allowed them to exist as citizens of the federal United States, and of the states in general, bestowing upon them similar benefits as free men enjoyed.
Just because slavery was abolished, that did not automatically confer any special privileges or rights to the slaves. Those privileges had to be conferred and recognized through federal legislation in conjunction with the 14th Amendment which served as the launching pad.
The new designation for these people was referred to as 'citizen,' -- a federal identifier. The 14th did NOT apply to Citizens, whose unalienable rights were not questioned, and were, in fact, already recognized and protected and required no such amendment to protect them further.
"To a great extent the 14th Amendment brought Madison's original constitutional scheme to completion by giving the feds a power to protect people from their states."
So long as Citizens traded in their sovereign status to the federal government by contract to be henceforth known as a federal citizen.
But why would they do that? But some did, and still do every day.
I am still waiting for you to provide one single piece of evidence for your positions. Just one.
This thread has all of the evidence you need to understand my positions. Your refusal to 'see' those posts is ludicrous.
Also, is this your new fallback position -- that the 14th amend is the key to happiness?
Whatever.
Have you given up on the BOR applying to the states from inception.
Of course not. The fact is, you just can't 'see' the connection. Tough.
Just in case you haven't, please read below. Below is what we call evidence, --
No, it's a method called cut & paste spamming. -- We've all seen these quotes before.
-- Come up with some valid new points on the subject, or be ignored.
You are the single most pathetic human being I have ever encountered. You are amazing to behold. You say the thread possesses all necessary evidence. Here's a clue for you -- repeating something over and over is NOT evidence. I await a single textbook, court ruling, authority, legal text, judge, historian, etc. who supports your position. I notice you didn't answer the question about your new fallback position. Wonder why? I cite 12!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! TWELVE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! court cases that support my position, plus the words of a historian who wrote one of the world's most circulated textbooks, plus FOUR!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! quotes from Madison!!!! and Hamilton!!!! and you say it is not evidence, it is spam. Would it count if I mailed or telegraphed the information to you? Would it stop being spam then? You tell me to come up with "valid NEW points" or be ignored!!!!!!!!!!!! You pathetic fool!!! You haven't come up with even ONE!!!!!!!!!!!!!!!!!! point. Your stupidity is breathtaking. And your cute little quote from Tom Paine, designed to make you look like a deep, intellectual thinker ain't fooling anybody. You are a lightweight of the first order. So sorry.
Also, I wish you WOULD ignore me. Twice before you said you were done with me, but you always come back for more punishment. How bizarre.
Oh, here's some more. You wanted new?
Forrest McDonald explaining the states after the Cons was ratified. This is paraphrased.
All states (except Rhode Island) imposed legal restrictions on various religious sects, and penalties for dissenters, apostates, blasphemers and idolators were numerous and severe. Jews were not allowed to hold political office anywhere.
Novus Ordo Seclorum, The Intellectual Origins of the Constitution, Forrest McDonald, University Press of Kansas, 1985, page 42.
Too bad you weren't around to tell "all the states" that the BOR prevented this, lightweight.
What now? I agree -- if the court is going to come up with some bizarre way to apply part x and part y and z of the BOR to the states, then they damn well better apply the whole thing. That, however, is NOT what you have been discussing with me. You have continued to say that the BOR has always applied to the states and that is what was intended. Both of which are false. As I stated earlier -- because the CONS has been utterly destroyed by both the Congress and the SC since at least 1937, and is now completely dead, I favor gun rights by ANY MEANS WHATSOEVER PERIOD NO HOLDS BARRED AT ALL. I don't care if the SC says we all get guns because the Monroe doctrine as described by Jeffersonian agrarians and promulgated by the Amphicitionic Confederacy dictates it. I WANT MY GUNS!! AND I DON'T CARE HOW I GET THEM. I will not, however, pretend that the BOR dictates it. Now does that convince you that I love guns? Or am I still just a faker?
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