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tenth amendment

 
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fred rosenberger wrote:

I think smaller is better.


My larger point is - why is giving power to a State the right answer?


I don't know if it's the right answer, but I think it's a better answer than what we have now. And I picked state simply because that's the way the constitution was written before the federal government started grabbing power that it wasn't entitled to, using things like the Interstate Commerce Clause.

The tenth amendment says that any powers not delegated to the federal government by the constitution are left to the states. This has been largely ignored. It's time we get back to it. That may not be the best solution, but it's a good start.
 
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J. Kevin Robbins wrote: before the federal government started grabbing power that it wasn't entitled to, using things like the Interstate Commerce Clause.


Woah...who says they aren't entitled to it?
 
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It goes both ways -- some states (cough, Alabama, cough) think it's OK to just ignore federal constitutional rulings.
 
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Bear Bibeault wrote:It goes both ways -- some states (cough, Alabama, cough) think it's OK to just ignore federal constitutional rulings.


And let's not forget that the Federal government still says medical marijuana is illegal, while state after state seems to think it is OK to simply ignore that ruling.
 
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Yeah, that one's a real mess!
 
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fred rosenberger wrote:

J. Kevin Robbins wrote: before the federal government started grabbing power that it wasn't entitled to, using things like the Interstate Commerce Clause.


Woah...who says they aren't entitled to it?


The tenth amendment.
 
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J. Kevin Robbins wrote:

fred rosenberger wrote:

J. Kevin Robbins wrote: before the federal government started grabbing power that it wasn't entitled to, using things like the Interstate Commerce Clause.


Woah...who says they aren't entitled to it?


The tenth amendment.


Let's be specific: to determine if a power asserted by the United States under the Commerce Clause is a power actually reserved to the states by the Tenth Amendment, one must identify the power in question. Certainly, not all powers asserted by the United States are 10A "reserved" powers (else what powers would the United States have?).

Kevin, I think this goes to you: what's the best example you have of a power asserted by the United States that is actually a power reserved to the states by the Tenth Amendment?
 
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J. Kevin Robbins wrote:The tenth amendment.


The 10th 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.


The commerce clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

So if Congress says "We have the power to do this under the commerce clause", who is to say they don't? I would think it would be the SCotUS, not you or me.

Do you have an example of Congress doing something against the SCotTUS ruling?
 
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We've wandered far away from the original topic of term limits, so I've split this thread into a new topic. I'll be back to comment later; I have to go run payroll checks and move some code into the test environment.
 
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J. Kevin Robbins wrote: so I've split this thread into a new topic. I'll be back to comment later;


Good plan...and I look forward to your reply. This is a fun discussion!!!
 
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Stevens Miller wrote:
Kevin, I think this goes to you: what's the best example you have of a power asserted by the United States that is actually a power reserved to the states by the Tenth Amendment?


The powers granted to Congress are laid out in Article 1, Section 8. The power to levy taxes, coin money, maintain an army and navy, establish Post Offices, etc. Section 9 describes the things that the states can't do; they are pretty limited, having to do mostly with taxes and duties. Not many things were explicitly reserved to the states and that's the problem.

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.


"Powers" is not well-defined, and so much has been decided in the courts. The phrase "to the people" further complicates interpretation.

The undercutting of the tenth amendment started with the 14th amendment because state laws allowed slavery. It was further weakened by Chief Justice John Marshall who ruled on what would become the Commerce Clause. Congress has since used this to declare that it covers pretty much anything they want it to cover. The 16th and 17th amendments gave even more power to Congress, and FDR's New Deal even more. So over time the tenth has been weakened to the point where the states have nowhere near the authority that Madison saw them having.

Let's take a hot topic; abortion. I can't find anything in the constitution where it says Congress has the authority to rule on this issue. It was the courts who decided. Obamacare; where does it says Congress can pass a law requiring citizens to purchase health insurance? They tried to claim that this is an interstate commerce issue, but that's a weak argument at best, so now they claim that it's just a tax because the constitution does give Congress the power to levy taxes. Eighteen states have challenged the constitutionality of this, so it's up the courts.

There are many more examples, but my real point is that the federal government has become too big and too powerful and needs to be reigned in. Using the tenth amendment as it was intended is one possible way of doing that. Although, I'm not hopeful about any attempts to reform our government. Way too much inertia.

I wish the founders had been more explicit in their choice of words in many of the amendments. It's the vagueness of terms like "militia" (2nd amd.) that has caused so much grief.
 
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fred rosenberger wrote:
So if Congress says "We have the power to do this under the commerce clause", who is to say they don't? I would think it would be the SCotUS, not you or me.

Do you have an example of Congress doing something against the SCotTUS ruling?


And that's the problem; it's been left to the courts to interpret the meaning of commerce and Congress finds a way to make just about anything interstate commerce. I can't think of anything where they've blatantly gone against the court. They do what they want and the states have to challenge it to get the courts to rule on it. (i.e. Obamacare). One example is Lopez versus the United States, where the courts ruled that Congress could not use the commerce clause to regulate firearms in school zones.

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”


That's from the Articles of Confederation. Madison and Jefferson also believed that the states had the power to interpret the constitution, and nullify any federal laws that they deemed to be unconstitutional. I see a movement among the states to do this more and more, and I think that's a good thing.
 
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J. Kevin Robbins wrote:Madison and Jefferson also believed that the states had the power to interpret the constitution, and nullify any federal laws that they deemed to be unconstitutional.


Let's be precise here. Madison did not support any sort of at-will option for a state to nullify. Here's what he said about the Virginia Resolution (which he wrote himself, 34 years earlier):

James Madison wrote:It appears still farther, that the efficacious interposition contemplated by the Legislature; was a concurring and cooperating interposition of the States, not that of a single State.


Madison believed that the states as a collective had the right to annul a blatantly unconstitutional federal statute (in particular, he had the Alien and Sedition Acts in mind). Madison did not believe that individual states could pick and choose federal statutes to annul. About nullification generally, he said this:

James Madison wrote:On the other hand what more dangerous than nullification, or more evident than the progress it continues to make, either in its original shape, or in the disguises it assumes. Nullification has the effect of putting powder under the Constitution and Union, and a match in the hand of every party to blow them up at pleasure: And for its progress, hearken to the tone in which it is now preached; cast your eye on its increasing minorities in most of the Southern States without a decrease in any one of them. Look at Virginia herself and read in the Gazettes, and in the proceedings of popular meetings, the figure which the anarchical principle now makes, in contrast with the scouting reception given to it but a short time ago.


If you have the stamina for it, you can read the full texts of those two documents here and here. (Or, you can buy my friend, Dr. Mike Signer's book on Madison, here .)
 
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J. Kevin Robbins wrote:Obamacare; where does it says Congress can pass a law requiring citizens to purchase health insurance?


Probably the same place where it said Congress could pass a law requiring hospitals to treat people regardless of their ability to pay (EMTALA).
 
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J. Kevin Robbins wrote:Not many things were explicitly reserved to the states and that's the problem.


Some say that's the solution. That is, if the constitution had made explicit reservations of rights, the risk was that these would be regarded as the only rights left to the states. 10A was to make sure that argument would fail.

The undercutting of the tenth amendment started with the 14th amendment because state laws allowed slavery.


You mean 13th, right? I know we're not defending slavery, but I think this observation actually shows that 10A was not being undercut. Without 10A, 13A wouldn't have been necessary. Congress could have illegalized slavery by statute. But, the states would have been in good position to argue that Congress lacked that power, and that their 10A rights were superior to any such statute. By incorporating abolition into the constitution itself, 10A remained respected.

The 16th and 17th amendments gave even more power to Congress


Agreed. But, weren't those amendments ratified by the states?

Let's take a hot topic; abortion. I can't find anything in the constitution where it says Congress has the authority to rule on this issue. It was the courts who decided.


Sure, but they weren't deciding a question of federal statutory constitutionalism. They were deciding a question of state law under the constitution.

Obamacare; where does it says Congress can pass a law requiring citizens to purchase health insurance? They tried to claim that this is an interstate commerce issue, but that's a weak argument at best, so now they claim that it's just a tax because the constitution does give Congress the power to levy taxes. Eighteen states have challenged the constitutionality of this, so it's up the courts.


Well, they claim it's a tax because that's the basis upon which SCOTUS upheld the law. Yeah, the ICC defense was a loser, but that only goes to show that not everything the Congress does requires reliance on the ICC, doesn't it? Not sure which 18 states could be challenging this, as the constitutionality of the ACA penalty as a tax was upheld in NFIP v. Sebelius. Do you have a different case in mind?

There are many more examples, but my real point is that the federal government has become too big and too powerful and needs to be reigned in. Using the tenth amendment as it was intended is one possible way of doing that. Although, I'm not hopeful about any attempts to reform our government. Way too much inertia.



It certainly would be interesting to hear what the authors of The Federalist Papers would have to say, if they could see what we've become.

I wish the founders had been more explicit in their choice of words in many of the amendments. It's the vagueness of terms like "militia" (2nd amd.) that has caused so much grief.


Oh, I dunno... the vagueness you see may be more in the nature of deliberate generalization, for the purpose of avoiding a document so specific as to quickly become obsolete. For example, no one has any trouble expandig the 1A meaning of the word, "press" to include "television," right? But there's still some question about whether or not "speech" in 1A includes some forms of action, like waving your arms around, dancing, dancing while naked, and so on. If the founders had said, "Let's be specific here, so no one has any trouble knowing exactly what their rights are," they might have written it thus:

Alternate Founders with OCD wrote:Congress shall make no law requiring or prohibiting the practice of Christianity or Judaism; or abridging the right to say things out loud, but only in your indoor-voice, or of putting any words in ink onto paper (but Franklin's trashy doodles are his problem); or the right of the people to stand quietly in one place at the same time, and to send us e-mails we can ignore in any quantity they like, after Al Gore invents the internet.



Sure, we argue endlessly over what some of the generalized/vague terms mean, but I rather think that's a healthy consequence of their decision not to be too picky. The alternative would be, I think, to replace our freedoms with very narrow licenses, outside of which we'd be slaves to the state.

I think your concern, from what I've been reading, isn't really with the state of 10A. Seems to me that you're more concerned with judicial review. If so, we can talk about that too, but we'll need another thread...
 
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Stevens Miller wrote:Madison did not believe that individual states could pick and choose federal statutes to annul.


I did some more reading on this, and you are correct the nullification theory was intended for the states as a collective, not as individuals. Of course, back then there were only 13 of them so reaching a consensus was a bit easier.

Jumping back a few messages, Igor Paranin is a Russian author who, in 1998, predicted that the United States would disintegrate into six separate countries "following a civil war triggered by mass immigration, economic decline, and moral degradation" (sound familiar?). He predicted it would happen in 2010, but maybe he just missed the date. It's interesting stuff, but unfortunately you can only read about his work as I've been unable to locate an English translation of the original.
 
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Stevens Miller wrote:
You mean 13th, right? I know we're not defending slavery, but I think this observation actually shows that 10A was not being undercut. Without 10A, 13A wouldn't have been necessary. Congress could have illegalized slavery by statute. But, the states would have been in good position to argue that Congress lacked that power, and that their 10A rights were superior to any such statute. By incorporating abolition into the constitution itself, 10A remained respected.


Oops. Sometimes the thoughts come faster than I can type. I need to slow down and check my sources.

The 16th and 17th amendments gave even more power to Congress


Agreed. But, weren't those amendments ratified by the states?


Actually, several states never ratified the 17th, including yours, Virginia. I think repealing it would help strengthen states rights and reduce the power of the federal government.

Let's take a hot topic; abortion. I can't find anything in the constitution where it says Congress has the authority to rule on this issue. It was the courts who decided.


Sure, but they weren't deciding a question of federal statutory constitutionalism. They were deciding a question of state law under the constitution.


Okay, I have to admit you lost me here. I can't think in "lawyerese" enough to understand the difference so I'll just concede this point.

Obamacare; where does it says Congress can pass a law requiring citizens to purchase health insurance? They tried to claim that this is an interstate commerce issue, but that's a weak argument at best, so now they claim that it's just a tax because the constitution does give Congress the power to levy taxes. Eighteen states have challenged the constitutionality of this, so it's up the courts.


Well, they claim it's a tax because that's the basis upon which SCOTUS upheld the law. Yeah, the ICC defense was a loser, but that only goes to show that not everything the Congress does requires reliance on the ICC, doesn't it? Not sure which 18 states could be challenging this, as the constitutionality of the ACA penalty as a tax was upheld in NFIP v. Sebelius. Do you have a different case in mind?


I may have the number wrong; I was reading about this one.


There are many more examples, but my real point is that the federal government has become too big and too powerful and needs to be reigned in. Using the tenth amendment as it was intended is one possible way of doing that. Although, I'm not hopeful about any attempts to reform our government. Way too much inertia.


It certainly would be interesting to hear what the authors of The Federalist Papers would have to say, if they could see what we've become.


I suspect they are whirling dervishly in their graves.

I wish the founders had been more explicit in their choice of words in many of the amendments. It's the vagueness of terms like "militia" (2nd amd.) that has caused so much grief.


Oh, I dunno... the vagueness you see may be more in the nature of deliberate generalization, for the purpose of avoiding a document so specific as to quickly become obsolete.....Sure, we argue endlessly over what some of the generalized/vague terms mean, but I rather think that's a healthy consequence of their decision not to be too picky.


That's a good point, and one worth considering. I've just always been frustrated by the constant debate over "militia" and wish they had picked a better phrase like "all legal citizens" or something. But you raise a good point.

I think your concern, from what I've been reading, isn't really with the state of 10A. Seems to me that you're more concerned with judicial review. If so, we can talk about that too, but we'll need another thread...


Yeah, we might be wandering off into the ditch, but my real concern is a monolithic federal government that is becoming more and more intrusive into our lives and our businesses. Supporting states rights seems to be the only way to push back against the federal juggernaut.
 
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The 16th and 17th amendments gave even more power to Congress


Agreed. But, weren't those amendments ratified by the states?


Actually, several states never ratified the 17th, including yours, Virginia.


But, again, those states did all ratify the constitution itself, which spells out the process for future amendments, so they knew they might have to live with future amendments they would vote against. A deal's a deal, you know?

Let's take a hot topic; abortion. I can't find anything in the constitution where it says Congress has the authority to rule on this issue. It was the courts who decided.


Sure, but they weren't deciding a question of federal statutory constitutionalism. They were deciding a question of state law under the constitution.


Okay, I have to admit you lost me here. I can't think in "lawyerese" enough to understand the difference so I'll just concede this point.


Yeah, I got a bit wordy. You said Congress lacks authority to rule on abortion. I agree. Roe v. Wade wasn't decided by Congress, though, nor was it a decision about federal law. It was a SCOTUS decision about a state law. Roe is one of a very few cases that make significant use of the Ninth Amendment, which is to people what the Tenth is to states. (Kinda surprised you haven't brought that up before, actually .) My point is that Congress hasn't had much to do with abortion directly, but the Roe decision has a lot to do with the supremacy of the federal constitution.

Obamacare; where does it says Congress can pass a law requiring citizens to purchase health insurance? They tried to claim that this is an interstate commerce issue, but that's a weak argument at best, so now they claim that it's just a tax because the constitution does give Congress the power to levy taxes. Eighteen states have challenged the constitutionality of this, so it's up the courts.


Well, they claim it's a tax because that's the basis upon which SCOTUS upheld the law. Yeah, the ICC defense was a loser, but that only goes to show that not everything the Congress does requires reliance on the ICC, doesn't it? Not sure which 18 states could be challenging this, as the constitutionality of the ACA penalty as a tax was upheld in NFIP v. Sebelius. Do you have a different case in mind?


I may have the number wrong; I was reading about this one.


Actually, that one's not about whether the individual mandate is a tax or not. That question was settled in NFIP. You're looking at King v. Burwell, which is about whether or not subsidies can be extended to ACA insureds who bought their policies in states that did not choose to operate their own exchanges (meaning the insureds bought them on federally run exchanges). The question is whether or not the word "state," in the part that authorizes subsidies means, "one of the states of the union," or does it mean, "government." We'll have to wait and see, but I predict the court will agree with the latter choice (and the ACA will be unaltered as a result).

It certainly would be interesting to hear what the authors of The Federalist Papers would have to say, if they could see what we've become.


I suspect they are whirling dervishly in their graves.


Me too, but I'm sure we are imagining them revolving in opposite directions.

I've just always been frustrated by the constant debate over "militia" and wish they had picked a better phrase like "all legal citizens" or something.


Heh. I get you. Then again, I do think they were pretty good at picking words. Where 2A is concerned (and I write this as the unapologetic owner of a shotgun, a .380 pistol with a Terminator-like laser aiming guide in it, and a concealed-carry permit), I think "militia" is not where the focus should be. I think it should be on the word "people." The Founders knew what "people" were, and they knew what a "person" was. (See 4A for a clear demonstration to that effect.) They could have said, "...the right of a person to keep and bear arms..." but they didn't. If they had, there would never have been any question about 2A being a personal right, as it obviously would have been. But "people" and "person" don't mean the same thing, so I see the Founders' wording as actually being pretty clear. (Heller says I'm wrong though, so what do I know?)

I think your concern, from what I've been reading, isn't really with the state of 10A. Seems to me that you're more concerned with judicial review. If so, we can talk about that too, but we'll need another thread...


Yeah, we might be wandering off into the ditch, but my real concern is a monolithic federal government that is becoming more and more intrusive into our lives and our businesses. Supporting states rights seems to be the only way to push back against the federal juggernaut.


No, I don't think that is a ditch at all. I think you are interested in transferring power away from the feds, back to the states, but that reliance on 10A isn't how to do it. I don't know if this has ever been addressed authoritatively, but I would say that a good example of a 10A right in action was when individual states granted voting rights to women. The constitution didn't say the states could do that, but it didn't say they couldn't either. By the logic of 10A, the states retained that power. But I would not say that 10A was ever intended to grant a license for nullilfication, certainly not by any one state in in its individual capacity.

Moreover, here in Virginia, I'm not at all confident that moving power from Washington to Richmond is the way to protect my civil liberties. Our legislature has done a lot of things lately that, to me, threaten individual freedom. Heck, as a county supervisor, my critics occasionally claimed that I threatened individual freedom. So I'm not at all sure that size correlates with quality, when it comes to government, except for Madison's belief that a bigger polity makes it harder for any one faction to oppress all the others. (Where, of course, "harder" != "impossible.")

When they wrote it, I don't believe the Founders intended 10A to empower the states with constitutional review authority. But, they also weren't explicit about giving that power to the federal judiciary, either. The subsequent history of federal judicial review includes a lot of objections to the notion that SCOTUS has such power. I'm in the camp that says it does have that power, but I also think it's a case of "pick one." That is, even if final say on the constitutionality of something were given to a periodic convention of the states, that would be fine by me too. Just pick some functioning system and move on. The judicial review that we get from SCOTUS may not be flawless (see Heller, for example ), but it works well enough, and has been working well enough for over 200 years that I'm not convinced transferring that power of review to the states would be an improvement.

But, I'm open-minded. Whenever anyone wants to suggest a sweeping change to the structure of government in America, I always ask the same question: can you offer me an example, present-day or historical, of a successful implementation of the alternative you have in mind? My friends who are communists particularly hate it when I do that (and thank-you for that, Kim Jong-un ). But communists are idiots. Not everyone who disagrees with me is an idiot, so I ask this question in complete sincerity. Anyone who can show me superior alternatives gets my attention. Got anything in mind?
 
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Stevens Miller wrote:
But, I'm open-minded. Whenever anyone wants to suggest a sweeping change to the structure of government in America, I always ask the same question: can you offer me an example, present-day or historical, of a successful implementation of the alternative you have in mind? My friends who are communists particularly hate it when I do that (and thank-you for that, Kim Jong-un ). But communists are idiots. Not everyone who disagrees with me is an idiot, so I ask this question in complete sincerity. Anyone who can show me superior alternatives gets my attention. Got anything in mind?


I wish I did; I would run for office. I still think that the system we have is the best in the world. I wouldn't want to live anywhere else. But that's doesn't mean it's perfect. There is lots of room for improvement. The problem is, we can't get 217 million adults to agree on what those improvements would be. In the meantime, we make the best of it that we can.
 
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