DGS49
Diamond Member
The first thing that one must understand when trying to make sense of the Constitution is the meaning of the word, "State." A State is a synonym for a COUNTRY. For example, we speak often of a "two-state solution" in Palestine, meaning two separate countries, intertwined.
The United States was a consolidation of thirteen former colonies which each thought of themselves (after the Declaration) as separate states. Each had an autonomous government, laws, constitution, and so on.
The Constitution was the "agreement" whereby those separate, small COUNTRIES decided to consolidate, but only to the extent that consolidation was in their individual best interests. Beyond that, they demanded to be treated a separate STATES.
Consider the kinds of things for which consolidation would have been beneficial: Currency, common defense, patents and copyrights, treaties with other nations, INTER-STATE commerce, and so on. As you are considering this concept, look to Section 8 of Article I (the powers of Congress). It starts with a general statement that Congress shall have the power to raise money, and to pay the debts of the consolidated government, then it goes on to specifics. The section lists 17 or so separate "powers" granted to Congress (i.e., to the consolidated, central government), to wit, the power to borrow money on the credit of the consolidated government, the power to regulate commerce with foreign nations, the power to provide laws for naturalization and bankruptcy, and so on.
The other side of this coin, so to speak, is the Tenth Amendment, which says, in effect that the powers not specifically granted to the consolidated government are reserved to the individual States, or to the people.
One might observe the wording in Article I, that "Congress shall have power [to provide for the] general welfare of the United States..." and infer from those words that the limitations are moot; if Congress can provide for the "general welfare," then it can do whatever it deems beneficial, regardless of whether what it intends to do is covered by the 17 (or so) specifically-delegated powers. The Courts long ago cast this reading aside, concluding that if the Founders had intended such broad powers, they would not have listed the specifically designated powers, and they would certainly not have included the Tenth Amendment.
So there you have it: we are a collection of individual states, which have delegated certain limited powers to the central government, retaining all other powers to ourselves. Hence, real estate law, family law, common criminal law, and commercial law are essentially all retained by the States.
THIS IS WHY, when the Supreme Court is considering whether, for example, Congress can demand, under penalty of law, that every citizen buy health insurance, it finds that Congress cannot do so. Alternatively, said the court, Congress can impose a TAX on those who decline to enroll, and that's just dandy. But it cannot overtly require people to enroll. Clearly, the Court wants to defer to the wishes of Congress, and will twist facts and logic to the extreme in order to allow Congress to have its way (The congressional counsel arguing the case before the Court told them that this was NOT A TAX!)
Against this clear and truly undeniable background, it is nauseating and almost infuriating to hear Members of Congress screeching that, for example, "The Republican Plan doesn't guarantee insurance for 'families with children'" [i.e. "Welfare Queens"], knowing that Congress HAS NO POWER to provide taxpayer funding for health insurance for anybody except employees of government and retirees.
Think back to the days of High School Civics. The Federal Government is a government of limited powers, and the States have plenary powers. This is nothing new.
The United States was a consolidation of thirteen former colonies which each thought of themselves (after the Declaration) as separate states. Each had an autonomous government, laws, constitution, and so on.
The Constitution was the "agreement" whereby those separate, small COUNTRIES decided to consolidate, but only to the extent that consolidation was in their individual best interests. Beyond that, they demanded to be treated a separate STATES.
Consider the kinds of things for which consolidation would have been beneficial: Currency, common defense, patents and copyrights, treaties with other nations, INTER-STATE commerce, and so on. As you are considering this concept, look to Section 8 of Article I (the powers of Congress). It starts with a general statement that Congress shall have the power to raise money, and to pay the debts of the consolidated government, then it goes on to specifics. The section lists 17 or so separate "powers" granted to Congress (i.e., to the consolidated, central government), to wit, the power to borrow money on the credit of the consolidated government, the power to regulate commerce with foreign nations, the power to provide laws for naturalization and bankruptcy, and so on.
The other side of this coin, so to speak, is the Tenth Amendment, which says, in effect that the powers not specifically granted to the consolidated government are reserved to the individual States, or to the people.
One might observe the wording in Article I, that "Congress shall have power [to provide for the] general welfare of the United States..." and infer from those words that the limitations are moot; if Congress can provide for the "general welfare," then it can do whatever it deems beneficial, regardless of whether what it intends to do is covered by the 17 (or so) specifically-delegated powers. The Courts long ago cast this reading aside, concluding that if the Founders had intended such broad powers, they would not have listed the specifically designated powers, and they would certainly not have included the Tenth Amendment.
So there you have it: we are a collection of individual states, which have delegated certain limited powers to the central government, retaining all other powers to ourselves. Hence, real estate law, family law, common criminal law, and commercial law are essentially all retained by the States.
THIS IS WHY, when the Supreme Court is considering whether, for example, Congress can demand, under penalty of law, that every citizen buy health insurance, it finds that Congress cannot do so. Alternatively, said the court, Congress can impose a TAX on those who decline to enroll, and that's just dandy. But it cannot overtly require people to enroll. Clearly, the Court wants to defer to the wishes of Congress, and will twist facts and logic to the extreme in order to allow Congress to have its way (The congressional counsel arguing the case before the Court told them that this was NOT A TAX!)
Against this clear and truly undeniable background, it is nauseating and almost infuriating to hear Members of Congress screeching that, for example, "The Republican Plan doesn't guarantee insurance for 'families with children'" [i.e. "Welfare Queens"], knowing that Congress HAS NO POWER to provide taxpayer funding for health insurance for anybody except employees of government and retirees.
Think back to the days of High School Civics. The Federal Government is a government of limited powers, and the States have plenary powers. This is nothing new.