By means of ordinary statute: no."Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?"
This is actually the clearest statement made of the intent and function of the language in the "privileges or immunities" clause of the 14th Amendment."That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress reenacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment."
This is where Field was intentionally confusing the distinction between "Privileges and Immunities" and "privileges or immunities". As I said, it's all a matter in how these are founded."The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.
"What, then, are the privileges and immunities which are secured against abridgment by State legislation?
"In the first section of the Civil Rights Act, Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right'to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.'"
Among any powers not delegated to Congress could there have been a more needful ability at the time in question than requiring the several States to respect unalienable rights that they should have honored anyway?If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?
Thanks Rurudyne. 10th Amendment topic.
I have read both of your detailed and thoughtful responses to my question, and I must say that I will need to spend some time and attention digesting these treatises.
I greatly fear that a majority of our “public servants” have decided for themselves to replace “servant” with “commander” or “custodian” or more plainly, “prison guard”.
Lindsey Graham provided the single Republican vote needed to pass the Sotamayor nomination out of committee. That vote was a LOT MORE of a betrayal that just an inexplicable bad decision. I read recently that without at least one minority vote, the nomination would have to go without a recommendation for approval. That minority vote was originally going to come from the usual turncoat, Senator Specter, but when he changes sides they needed a substitute and Senator Grahamnesty stepped right up.
Lamar Alexander voted FOR the “porkulous” bill - one of three Repubs. He claimed that it provided essential benefits for Tennessee that made his vote necessary. I told him that NOTHING justified trying to buy my vote with my own money.
Not long after, he voted FOR CLOTURE on the nomination of Harold Koh to State Dept legal counsel, and then cast a MEANINGLESS vote against the actual nomination, which passed easily. But since that vote, his office flunkies are insisting that he voted AGAINST the nomination. When I verified my original accusation, I called back to call them - and the Senator - the liars they certainly are.
I intend to visit every public appearance of every congresscritter I can afford to during this recess - with a broom and a “poop scooper” with signs attached to let them know what they face if they continue their arrogance. I hope others will do the same.
Again, I (unlike the current President and ... just about every Democrat in Congress) always welcome criticism.
Ok, the begged question was Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it? but I dont see that the people and/or the States retained right and/or reserved power to require part is clearly addressed. It seems to be just sort of assumed away with no more than mention of non specific objections and doubts. What did I overlook?
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Among any powers not delegated to Congress could there have been a more needful ability at the time in question than requiring the several States to respect unalienable rights that they should have honored anyway?
I cant think of one.
That matter was addressed in the Declaration of Independence with the words: all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it
So, there is a Right of the People to alter or to abolish stated in the Declaration of Independence, which right would, I think, be one of the others retained by the people as stated in the Ninth Amendment.
And according to the First Amendment, the people have a right to petition the Government for a redress of grievances.
Accordingly, they could submit to Congress some form of petition for a redress of grievances said grievances being violation of unalienable rights by particular State governments and said redress, in accordance with the right of the people to alter being requiring the several States to respect unalienable rights that they should have honored anyway. (Stealing some of that from your post)
In Congress, the House of Representatives (on behalf of the people) and the Senate (on behalf of the States at one time but not now) would determine the merits of the petition and the disposition regarding redress.
That still leaves open the question of a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it.
If the right exists, the disposition of the redress by Congress acting on behalf of the people and the States, could be to take action to alter State government by requiring the several States to respect unalienable rights that they should have honored anyway. If the right does not exist, Congress could take no such action legitimately and the disposition of the redress would have to be something else.
If the right does not exist and Congress could not act on the noted requirement, the people submitting the petition for redress of grievances would either have to submit to a government destructive of these ends or try to exercise their right to alter or abolish it. That could be defined as insurrection which might put Congress in the interesting position of providing for calling out the Militia to suppress an insurrection the aim of which was to alter or abolish a government that had become destructive of the ends it was supposed to secure and which Congress, as a branch of a government which is also established to secure those ends, is supposed to help secure.
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If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?
The question implies Congress acting on its own initiative in regard to the pressing need. What might be sufficient is a requirement levied by the people if they have a retained right and/or reserved power to levy such a requirement.
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This is where Field was intentionally confusing the distinction between "Privileges and Immunities" and "privileges or immunities". As I said, it's all a matter in how these are founded.
The former, "Privileges or Immunities",
I assume you meant "Privileges and Immunities".