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To: rustbucket
Also, let's review statements by various Constitution ratification conventions.

Yes lets. Four of the statements make the assumption that only those powers expressly reserved to Congress or denied to the states. You quoted your Constitutional expert, Jefferson Davis, let me quote mine. Chief Justice John Marshall, certainly no Constitutional slouch himself, wrote: "Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people"; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding."

In three of the cases you mentioned, their wording of the 10th Amendment was not adopted. In South Carolina's statement, their assumption that only expressly listed powers were reserved to Congress or denied to the states was simply wrong.

1,428 posted on 06/03/2007 6:11:16 AM PDT by Non-Sequitur (Save Fredericksburg. Support CVBT.)
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To: Non-Sequitur
Chief Justice John Marshall, certainly no Constitutional slouch himself, wrote: "Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people"; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument.

The old Federalist was a sharp cookie (he was my blood cousin, after all), but he left the door open to ambiguity, something I wouldn't have done.

1,431 posted on 06/03/2007 6:26:33 AM PDT by rustbucket (Defeat Hillary -- for the common good.)
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To: Non-Sequitur
From Madison:

Clear as the position must seem, that the federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine, which opens another source of federal powers, not less extensive and important, than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking, that in all the cotemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended, on the ground, that the powers not given to the government, were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, "that 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."

Our present 10th amendment was, of course, the 12th Amendment on the original submission of the Bill of Rights. Two of the original amendments did not pass.

1,434 posted on 06/03/2007 7:37:06 AM PDT by rustbucket (Defeat Hillary -- for the common good.)
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