Determining constitutionality is an extremely tricky thing. Yes, for most day to day issues, a presumption of constitutionality is reasonable. But take such issues as the Nixon tapes and the Clinton refusal to provide documents. It was, in both cases, the courts that made the final determination.
None of the courts were asked by the litigants to determine the constitutionality of any of the matters before them
Therein lies probably the most critical issue. In 2001 attempts to bring the issue to the federal courts were properly met with negative rulings, since there apparently was no 14th Amendment rights violation proved. But later, when the Congress passed a bill to require the federal courts to intervene, of course, they did, but only to the extent of rebuffing federal attempts to make this a federal issue on its face.
Be interesting to see what they'd say about a county judge having authority to execute someone without any of the safeguards now in place to protect convicted criminals.
Well, I'm sure you realize that the issue was not considered execution, but complying with the wishes of a terminally ill brain damaged woman. Right or wrong, and good people disagree on this, that was the issue, plain and simple. But, having said that, I believe that the Schiavo case will probably eventually bring the federal government into the whole area of living wills, death wishes, medical technology, differences between life support and feeding mechanisms, etc. I hope not. But at the same time, I hope the states take a serious look at all of these issues.
Not to keep harping on the 10th Amendment, but it does empower the states with all of those rights not set aside for the federal government. And empowerment is a critical word. If a person is empowered, he is able to do things you may not approve of. If he can only do those things you approve of then of course, there is no empowerment. So it is with the states. Unless specific rights are violated, and so determined through courts of law, then the federal government, IMHO, has no business intervening. We so frequently accuse the courts of trying to legislate, in this case Congress was guilty of interfering with the legal process.
Obviously you and I would have been on different sides at the beginning of the Civil War. Then, later on, you would have discovered the tyrants in Richmond had betrayed your trust, and only then would you desert to the forces of righteousness.
That is a really interesting amendment. A good summary of its history and actual effect at limiting COngressional incursion into state power is available at:
http://www.gpoaccess.gov/constitution/html/amdt10.html <-- Link
One thing that struck me is that the 10th is toothless in fact, because it can be molded to suit the outcome the Supreme Court desires. US v. Darby, 312 U.S. 100 (1941), notes that the 10th Amendment is nothing but a truism.
In 1941, the Court came full circle in its exposition of this Amendment. Having returned four years earlier to the position of John Marshall when it sustained the Social Security Act\27\ and National Labor Relations Act,\28\ it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States v. Darby.\29\ Speaking for a unanimous Court, Chief Justice StoneThe summary of the legal effect of the 10th (as between feeral and state power) continues from there, and in fact, reaches the opposite conclusion that you do. The federal government has lots of power, but it can't prevent a state from acting as a state. The commerce clause and others provide more powerful restriction on the exercise of federal power than the 10th Amendment does,[[Page 1513]]
wrote: ``The power of Congress over interstate commerce `is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' . . . That power can neither be enlarged nor diminished by the exercise or non- exercise of state power. . . . It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attended the exercise of the police power of the states. . . . Our conclusion is unaffected by the Tenth Amendment which . . . states but a truism that all is retained which has not been surrendered.''\30\\27\Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).
\28\NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
\29\312 U.S. 100 (1941). See also United States v. Carolene Products Co., 304 U.S. 144, 147 (1938); Case v. Bowles, 327 U.S. 92, 101 (1946).
\30\312 U.S. 100, 114, 123, 124 (1941). See also Fernandez v. Wiener, 326 U.S. 340, 362 (1945).