The 10th Amendment

[Listening]

This article sums it up pretty well.

10th Amendment, Federalism, and States' Rights | Intellectual Takeout (ITO)

My question is why does the GOP forget about the 10th when they have power at the federal level.

GWB disgusted me with several of his laws.

Prescription drugs

No Child Left Behind

TARP

A strict interpretation of the 10th would say none of this should have occured.

I believe the GOP would do well to start including this more in their talking points going forward.

Keep in low key, but slowly ramp it up.

I have to explain federalism to most of my adult friends. They think of government as the federal government.

Most can't tell you who their state senator state rep is.

But I digress....

If the GOP were to do this (provided they half meant it), I think the Tea Party and other conservative groups would rally to push for more localized government.

 

[C_Clayton_Jones]

This article sums it up pretty well.

10th Amendment, Federalism, and States' Rights | Intellectual Takeout (ITO)

My question is why does the GOP forget about the 10th when they have power at the federal level.

GWB disgusted me with several of his laws.

Prescription drugs

No Child Left Behind

TARP

A strict interpretation of the 10th would say none of this should have occured.

I believe the GOP would do well to start including this more in their talking points going forward.

Keep in low key, but slowly ramp it up.

I have to explain federalism to most of my adult friends. They think of government as the federal government.

Most can't tell you who their state senator state rep is.

But I digress....

If the GOP were to do this (provided they half meant it), I think the Tea Party and other conservative groups would rally to push for more localized government.

The Constitution exists only in the context of its case law, and that applies to the 10th Amendment as well.

Since the Foundation Era, therefore, the 10th Amendment has never meant what has been incorrectly perceived by the partisan right:

In McCulloch v. Maryland,5 Marshall rejected the proffer of a Tenth Amendment objection and offered instead an expansive interpretation of the necessary and proper clause6 to counter the argument. The counsel for the State of Maryland cited fears of opponents of ratification of the Constitution about the possible swallowing up of states’ rights and referred to the Tenth Amendment to allay these apprehensions, all in support of his claim that the power to create corporations was reserved by that Amendment to the States.7 Stressing the fact that the Amendment, unlike the cognate section of the Articles of Confederation, omitted the word “expressly” as a qualification of granted powers, Marshall declared that its effect was to leave 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 upon a fair construction of the whole instrument.”8

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 Act27 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 Stone[p.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

CRS/LII Annotated Constitution Tenth Amendment

From the beginning and for many years, the [Tenth A]mendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.

United States v. Darby

The GOP is at liberty to include whatever they wish in their talking points, provided they understand that rhetoric about the 10th Amendment existing as some sort of ‘veto authority’ possessed by the states to ‘nullify’ Federal statutes is completely devoid of merit, and has no basis whatsoever in the Constitution or its case law.

What effect this may have in a political context is open to debate, republican candidates ‘invoking’ the 10th Amendment would be lying, of course, and that’s a gamble they may want to take if they believe lying about the Constitution will benefit them at the polls.

But perhaps GOP candidates just might want to go with the truth and facts for a change and forego a ‘10th Amendment strategy.’

 

[Sallow]

This was basically settled before your court case, Mr. Jones.

By the Civil War.

No state authority does not exceed Federal authority.

 

[Listening]

This article sums it up pretty well.

10th Amendment, Federalism, and States' Rights | Intellectual Takeout (ITO)

My question is why does the GOP forget about the 10th when they have power at the federal level.

GWB disgusted me with several of his laws.

Prescription drugs

No Child Left Behind

TARP

A strict interpretation of the 10th would say none of this should have occured.

I believe the GOP would do well to start including this more in their talking points going forward.

Keep in low key, but slowly ramp it up.

I have to explain federalism to most of my adult friends. They think of government as the federal government.

Most can't tell you who their state senator state rep is.

But I digress....

If the GOP were to do this (provided they half meant it), I think the Tea Party and other conservative groups would rally to push for more localized government.

The Constitution exists only in the context of its case law, and that applies to the 10th Amendment as well.

Since the Foundation Era, therefore, the 10th Amendment has never meant what has been incorrectly perceived by the partisan right:

In McCulloch v. Maryland,5 Marshall rejected the proffer of a Tenth Amendment objection and offered instead an expansive interpretation of the necessary and proper clause6 to counter the argument. The counsel for the State of Maryland cited fears of opponents of ratification of the Constitution about the possible swallowing up of states’ rights and referred to the Tenth Amendment to allay these apprehensions, all in support of his claim that the power to create corporations was reserved by that Amendment to the States.7 Stressing the fact that the Amendment, unlike the cognate section of the Articles of Confederation, omitted the word “expressly” as a qualification of granted powers, Marshall declared that its effect was to leave 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 upon a fair construction of the whole instrument.”8

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 Act27 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 Stone[p.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

CRS/LII Annotated Constitution Tenth Amendment

From the beginning and for many years, the [Tenth A]mendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.

United States v. Darby

The GOP is at liberty to include whatever they wish in their talking points, provided they understand that rhetoric about the 10th Amendment existing as some sort of ‘veto authority’ possessed by the states to ‘nullify’ Federal statutes is completely devoid of merit, and has no basis whatsoever in the Constitution or its case law.

What effect this may have in a political context is open to debate, republican candidates ‘invoking’ the 10th Amendment would be lying, of course, and that’s a gamble they may want to take if they believe lying about the Constitution will benefit them at the polls.

But perhaps GOP candidates just might want to go with the truth and facts for a change and forego a ‘10th Amendment strategy.’

In most of what I've read regarding the 10th amendment, I rarely see anyone try to utilize the 10th amendment as a basis for nullification. I do know that such sentiments exist, but they seem to be in the minority and rare.

So, I'll just clarify by saying that is not what I meant in bringing this up.

Even if it were the majority of writings, nullification is an all or nothing strategy.

A true 10th amendment strategy would be much more subtle.

 

[Listening]

Oh, and thanks for pointing out that case law is the primary basis for considerations.

Keeping in mind that nothing is ever totally settled. Meaning, of course, that even if the framers has some idea that the 10th amendment wasn't to be as it reads....it could still be made to mean as much if the right people were in power.

Have a good day.

 

[Listening]

This was basically settled before your court case, Mr. Jones.

By the Civil War.

No state authority does not exceed Federal authority.

That is not what the 10th amendment says.

It defines who has what scope in terms of government reach. Where the feds have authority, they have full authority.

Where they have no authority....they have no authority.

 

[ShawnChris13]

Both parties have been abusing the constitution by constantly undermining the law until they can have free reign over government and the private sector. Which party supports the indefinite detention of Americans? Both. Which party supports warrant less wiretapping and collection of private data? Both.

The Republicans and Democrats have been working along side each other to secure their power. Just look at how the Center for Presidential Debates was formed. Or look at how congressional districts are drawn. Or look at restrictions on how to be placed on the ballot.

 

[Listening]

Both parties have been abusing the constitution by constantly undermining the law until they can have free reign over government and the private sector. Which party supports the indefinite detention of Americans? Both. Which party supports warrant less wiretapping and collection of private data? Both.

The Republicans and Democrats have been working along side each other to secure their power. Just look at how the Center for Presidential Debates was formed. Or look at how congressional districts are drawn. Or look at restrictions on how to be placed on the ballot.

Shawn,

I won't argue this point with you because I agree.

My point is that the 10th amendment does exist. It has been called upon when convenient by both sides. And just as readily ignored.

Historically, it has had sway. It was the reason Roosevelt got so pissed he proposed his court packing scheme.

There are a number of people who feel they know how things were supposed to fit together (and how they did, albeit not perfectly).

My question has to do with whether or not a subtle effort to start encouraging states to exercise their individual prerogatives in order to start moving back to a more federalist type of system (government within government).

Not as a means of defeating the other side, but as a means of keeping the issues more local.

When the 10th was written, there were 13 states and about 6 million people in the United States. Now there are 310 million. California and New York have cities that are larger than 6 million.

 

[eflatminor]

No state authority does not exceed Federal authority.

The 10th amendment says nothing of the sort. Have you read it?

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.

Clearly, the 10th is meant to reinforce the idea that the Federal government has a few, specifically enumerated powers in which it can involve itself. Outside of those powers, it's up to the people. Otherwise, the Constitution must be amended.

That both parties and their cronies on the bench have sought to sidestep this most basic concept is what has led to the central planning experiments that, particularly during the Progressive era, have done far more harm than good.

The Civil War did not repeal the 10th amendment nor the basic principal of limited government.

 

[eflatminor]

... provided they understand that rhetoric about the 10th Amendment existing as some sort of ‘veto authority’ possessed by the states to ‘nullify’ Federal statutes...

No one thinks the 10th is about veto authority over the Feds. It's about the Feds being restricted to the enumerated powers. The 10th reinforces the idea of a limited federal government.

 

[martybegan]

No state authority does not exceed Federal authority.

The 10th amendment says nothing of the sort. Have you read it?

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.

Clearly, the 10th is meant to reinforce the idea that the Federal government has a few, specifically enumerated powers in which it can involve itself. Outside of those powers, it's up to the people. Otherwise, the Constitution must be amended.

That both parties and their cronies on the bench have sought to sidestep this most basic concept is what has led to the central planning experiments that, particularly during the Progressive era, have done far more harm than good.

The Civil War did not repeal the 10th amendment nor the basic principal of limited government.

To me the only limit on states when it comes to what they can legislate is based on the rights given in either thier consitution, or in the federal constituiton. So a state can say only people over 21 can drive, because there is no right to driving in any consitution, but it cannot ban the ownership of firearms by citizens, because that is protected by your rights as a US citizen.

 

[eflatminor]

My question is why does the GOP forget about the 10th when they have power at the federal level.

Because they, just like their counterparts on the other side of the isle, are just SURE they know what's best for everyone else. Those that would support limiting their own power are few and far between.

 

[jon_berzerk]

This article sums it up pretty well.

10th Amendment, Federalism, and States' Rights | Intellectual Takeout (ITO)

My question is why does the GOP forget about the 10th when they have power at the federal level.

GWB disgusted me with several of his laws.

Prescription drugs

No Child Left Behind

TARP

A strict interpretation of the 10th would say none of this should have occured.

I believe the GOP would do well to start including this more in their talking points going forward.

Keep in low key, but slowly ramp it up.

I have to explain federalism to most of my adult friends. They think of government as the federal government.

Most can't tell you who their state senator state rep is.

But I digress....

If the GOP were to do this (provided they half meant it), I think the Tea Party and other conservative groups would rally to push for more localized government.

the say the state had died with the 17th amendment

the next best course of action

is at the local level

 

[Listening]

My question is why does the GOP forget about the 10th when they have power at the federal level.

Because they, just like their counterparts on the other side of the isle, are just SURE they know what's best for everyone else. Those that would support limiting their own power are few and far between.

Effy....

So how would you propose that those who truly do believe in a decentralized government proceed.

You have something like the Tea Party carry this forward. They are already defined and anything they might do like this would get hooted down as crazy. Besides, they do tend to Bull Rush things.

I am thinking about how we might take a more subtle approach.

Anything thoughts ?

 

[Listening]

This article sums it up pretty well.

10th Amendment, Federalism, and States' Rights | Intellectual Takeout (ITO)

My question is why does the GOP forget about the 10th when they have power at the federal level.

GWB disgusted me with several of his laws.

Prescription drugs

No Child Left Behind

TARP

A strict interpretation of the 10th would say none of this should have occured.

I believe the GOP would do well to start including this more in their talking points going forward.

Keep in low key, but slowly ramp it up.

I have to explain federalism to most of my adult friends. They think of government as the federal government.

Most can't tell you who their state senator state rep is.

But I digress....

If the GOP were to do this (provided they half meant it), I think the Tea Party and other conservative groups would rally to push for more localized government.

the say the state had died with the 17th amendment

the next best course of action

is at the local level

I will bring a thread forward on the 17th sometime. And your statement is correct. The 17th was a total brain-fart on the part of the states.

 

[eflatminor]

My question is why does the GOP forget about the 10th when they have power at the federal level.

Because they, just like their counterparts on the other side of the isle, are just SURE they know what's best for everyone else. Those that would support limiting their own power are few and far between.

Effy....

So how would you propose that those who truly do believe in a decentralized government proceed.

History teaches us that all centrally planned societies eventually fail, typically following the devaluation of currency followed by war, civil or otherwise. Sure I'd like to stop our progress towards that eventuality, but I'm not counting on it. In the mean time, vote for Rand Paul I guess or one of the very few other leaders not seeking to impose their will on others. However, should reasonable attempts to curtail our march towards tyranny fail, I believe Thomas Jefferson put it best:

"And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure."

You have something like the Tea Party carry this forward. They are already defined and anything they might do like this would get hooted down as crazy. Besides, they do tend to Bull Rush things.

In my experience the TP is made up of half limited government libertarians and half big government conservatives (supporting Social Security for instance). The TP isn't the answer any more than the Republicans are. We have yet to see the right movement and won't I suspect until those sucking on the government tit, from entitlement individuals to crony corporations, are cut off due to economic realities.

I am thinking about how we might take a more subtle approach.

Anything thoughts ?

Let's hope a subtle approach works. I've seen zero evidence to suggest it will, but I remain hopeful. If witnessing the crumbling of every major centrally planned society around the world, the economic woes of those countries that moved in that direction, and the relative prosperity of those that did not isn't enough to stop this entitlement freight train, I don't know what it. Apparently, there's something within humans that wishes to impose their will on others and a corresponding urge among the masses to be told what to do. Personally, I find it pathetic, but that doesn't change the way people vote.

 

[Steven_R]

... provided they understand that rhetoric about the 10th Amendment existing as some sort of ‘veto authority’ possessed by the states to ‘nullify’ Federal statutes...

No one thinks the 10th is about veto authority over the Feds. It's about the Feds being restricted to the enumerated powers. The 10th reinforces the idea of a limited federal government.

Between the court rulings on the scope of Interstate Commerce (Wickard v. Filburn and Gonsalez v. Raich) to the court rulings on the Necessary and Spending Clauses to the nebulous idea of just what the Due Process Clause of the 14th Amendment means, the courts just rendered the 10th Amendment null and void. The truly sad thing is the states just rolled over and did nothing. No push back, no calls for a Constitutional Convention, they just went along with it.

I've said it before and I'll say it again, centuries from now, when historians honestly look at what happened in the United States they will conclude that the biggest problem wasn't that the people elected idiots or the parties were in it for themselves or that government got in bed with big business but that the courts just renounced their responsibility to act as a check and balance to government powers. They let anything go.

 

[Listening]

How many of you have been to a city council meeting in the last 5 years ?

 

[Steven_R]

That's an interesting point. People bitch about politics, but they mostly mean what's happening in DC. There are any number of other political arenas close by. City council meetings, planning commission meetings, school board meetings, county commission meetings, utility commission meetings, state legislature events and so on and so forth. Why are we so apathetic about those political levels but so passionately divided about what goes on in DC?

 

[Listening]

That's an interesting point. People bitch about politics, but they mostly mean what's happening in DC. There are any number of other political arenas close by. City council meetings, planning commission meetings, school board meetings, county commission meetings, utility commission meetings, state legislature events and so on and so forth. Why are we so apathetic about those political levels but so passionately divided about what goes on in DC?

And that is the point.

I once did an experiment where I went to ten City Council meetings in a row. In two of them, there was no one else (but me). In five of them, there were developers. In three cases there were complaints (rezoning to allow a dance school into an industrial area....houses that were flooding.....and I can't remember the third.

In one meeting, one of the Councilmen griped that there were no citizens there and they needed to do more to get some "fresh ideas" coming to them...they didn't want to dreams stuff up themselves.

This city is probably more moderate than anything. But there are a fair number of conservatives around. Where are they. Our sales tax is one of the highest in the county.
Why ? Doesn't anyone care ?

I've been to open forums with my state legislators. I know them by name and they know me...I've worked for them. They might represent 30,000 people.....and five show up. And there are some pretty good discussions. FIVE freaking constituents !!!!

Where are the conservatives ? They are to busy bitching about abortion and they forget everything else.

I was at a meeting where the House Speaker got up and said, that if "conservatives were not going to run for school board....don't come to the capital and expect us to fix the education mess". Where conservatives have run for the board, they've won (but they get pretty bloody doing it....the NEA does not mind hitting below the belt....often)....and yet we still can't get people to run in other districts.

If the conservatives of this world are about local government...why are they not running or helping more ?

That is the idea behind a 10th amendment strategy.