THE COMING CLASH; RISE OF 10TH AMMENDMENT

[Guest032516]

Originally Posted by CuteOldGuy

Well, Darby was incorrectly decided, and Justice Stone is wrong. The 10th Amendment was added for a reason, and that reason was to further prevent the federal government from overstepping its enumerated powers in the Constitution.

I'm amused by lawyers who think they are so far above the average person, and only they can understand the law. That's partly why I'm out of the profession. Can't take arrogant bastards anymore.

Sorry, but I have to agree with TexTushHog on this.

The 10th Amendment is true, but it is also redundant. The text is short:

"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 federal government is a government of enumerated powers. Unless a power is spelled out in the Constitution, the federal government doesn't have it. That power instead belongs to the states (assuming its not prohibited by the Constitution) or to the people. That is the way the Supreme Courts have interpreted laws and acts of Congress right from the start.

If Congress cannot find support for a law in the text of the Constitution, then Congress does not have that power - i.e., it is not "enumerated". You don't even have to cite the 10th Amendment to overturn the law.

The 10th Amendment doesn't really add anything to correct construction of the Constitution.

[CuteOldGuy]

The problem, ExNyer, is that the government has exceeded the boundaries set forth in Constitution by light years. Use of the 10th Amendment may be the one vehicle to bring them back within their enumerated borders.

[Whirlaway]

Didnt' Robert's give some acknowledgement to this in his Obamacare decision. If I recall he opened the door regarding Medicaid payments.

[Guest032516]

Originally Posted by JD Barleycorn

It was the same thing that led to the south seceding. You can argue about their motivation in so far as slavery goes but they also saw an erosion in their legislative powers. From the time the Constitution was ratified to about 1850 most presidents were southern democrats. The southern democrats had the majority power in the Senate and House. After 1820 that power started to drift away. Western states joined with the north and in violation of the Missouri Compromise the federal government restricted the creation of new government states. By 1860 the citizens and state legislatures knew they would either have to risk war or become vassals of the north.

So they were being out-voted? Isn't that the way democracy is supposed to work?

Why was it OK before 1820? And why did it become bad after 1820?

And don't forget, legislative power was already unfairly tipped in favor of the South by the 3/5ths compromise, which gave the South clout it never should have had in the first place and that enabled them to hold power longer then they ever should have. If anything, the Northern states were effectively the vassals of Southern states for decades. Not to mention, you know, black people.

Originally Posted by JD Barleycorn

You can try to make this about slavery as I know some of you will but the north was also passing tariffs that harmed the south only and their cotton industry.

That's the nature of ALL laws.

The South insisted on the 3/5ths Compromise, which harmed the north only. So there.

The burdens of laws never fall exactly evenly. Restrictions on offshore oil drilling negatively impact the Gulf States. That's no reason to think they have grounds to secede.

Originally Posted by JD Barleycorn

The federal government was also making it harder for the south to industrialize (to protect the northern industry) with new laws on property and patents.

Can you cite some evidence for that?

Patent laws are uniform throughout the country and they confer rights on individuals (or their companies) not on states.

And what were the new laws on "property"? Property laws are typically the realm of the states.

Originally Posted by JD Barleycorn

I can easily see why some states would rather go their own path than allow California, Illinois, and New York (by way of Washington) to force them to carry other states debts and eventually the IRS will make it harder to move your wealth from states like NY and CA to TX and FL.

And how is that going to happen?

The small states greatly outnumber the large states and therefore control the Senate. If House representatives of the 10 biggest states decided to vote to have the US bailout the 10 biggest states, how do they get the 80 Senators (out of 100) from the 40 smallest states to go along?

Also, even the biggest states are not uniform in supporting a bailout for themselves. Why would Texas (No. 2 in size) and Florida go along with that? They are in much better shape than CA, NY or IL. So, it would be cheaper for Texas and FL to pay their own debts than to chip money into the federal pot and get only part of it back.

Also, the right to travel (i.e., to relocate) is a fundamental right of US citizens under the privileges and immunity clause of the Constitution.

So, how can the IRS make it harder for a US citizen to move his or her wealth from NY to Texas? If the IRS restricts a person's ability to move his or her wealth, they necessarily restrict the ability of the person to move.

[Guest032516]

Originally Posted by CuteOldGuy

The problem, ExNyer, is that the government has exceeded the boundaries set forth in Constitution by light years. Use of the 10th Amendment may be the one vehicle to bring them back within their enumerated borders.

But HOW?

If a statute is not founded on an enumerated power, then it is unconstitutional even without referring to the 10th Amendment.

And if it IS founded on an enumerated power, then the 10th Amendment does not help you.

Give me an example of how you use the language of the 10th amendment to shoot down a Congressional statute that you could not already shoot down by saying it is NOT an enumerated power.

And consider the Obamacare individual mandate by way of example. Four liberal justices said it was permissible based on the Commerce Clause of the Constitution. Chief Justice Roberts said "No, the Commerce Clause doesn't support it, but the power to tax does support the individual mandate". So, it was upheld, 5 to 4.

If you howl and pound the table and point to the 10th amendment, which one of those 5 justices will change his or her mind and why? And do you not think they were already aware of the 10th Amendment when they voted?

[joe bloe]

Originally Posted by Whirlaway

I am sure out constitutional understanding of the 10th amendment will continue to evolve; much like the 2nd has. But we were citizens of the state well before we became citizens of a united republic.

With any luck, we will be again. The federal government is out of control. After the economy completely collapses, and the dollar is worthless, maybe they'll let the states secede. Hopefully, it won't take a civil war this time.

I think Texas, Oklahoma, and New Mexico would make a nice country.

[Guest032516]

Originally Posted by Whirlaway

I am sure out constitutional understanding of the 10th amendment will continue to evolve; much like the 2nd has.

Holy flip-flop, Batman! Whirly turned into a liberal!

Do you really want the Constitution (or our understanding) to "evolve". Isn't that the "living document" bullshit the left spouts off every time the Constitution gets in their way?

Be careful what you wish for, you just might get it. What if it evolves in ways you don't like?

The Constitution has been amended 27 times since 1789. THAT is how it evolves.

[joe bloe]

Originally Posted by ExNYer

Holy flip-flop, Batman! Whirly turned into a liberal!

Do you really want the Constitution (or our understanding) to "evolve". Isn't that the "living document" bullshit the left spouts off every time the Constitution gets in their way?

Be careful what you wish for, you just might get it. What if it evolves in ways you don't like?

The Constitution has been amended 27 times since 1789. THAT is how it evolves.

I've always thought it was ironic that the surest way to kill the Constitution is to view it as a living document.

Interpreting according to original intent is the only legitimate interpretation. Anything else is nonsense. We've got judges that admit they consider international law in making their rulings.

According to Mark Levin, the court doesn't even have constitutional authority to do judicial review. Every ruling on interpretation since Marbury v Madison has been made without constitutional authority, according to Levin. I guess if SCOTUS were pure originalists, they'd have to rule that they don't have the power to interpet. I'm pretty sure that's a paradox.

http://www.claremont.org/publication...pub_detail.asp

[Jackie S]

The first ten Amendments, the Bill of Rights, were all put in place for a specific reason, and the opinion of some dipwad Supreme Court Justice does not alter that fact.

Each of the ten is just as important as the others. And each carries the same weight of the Law.

[CuteOldGuy]

Originally Posted by ExNYer

But HOW?

If a statute is not founded on an enumerated power, then it is unconstitutional even without referring to the 10th Amendment.

And if it IS founded on an enumerated power, then the 10th Amendment does not help you.

Give me an example of how you use the language of the 10th amendment to shoot down a Congressional statute that you could not already shoot down by saying it is NOT an enumerated power.

And consider the Obamacare individual mandate by way of example. Four liberal justices said it was permissible based on the Commerce Clause of the Constitution. Chief Justice Roberts said "No, the Commerce Clause doesn't support it, but the power to tax does support the individual mandate". So, it was upheld, 5 to 4.

If you howl and pound the table and point to the 10th amendment, which one of those 5 justices will change his or her mind and why? And do you not think they were already aware of the 10th Amendment when they voted?

Actually, you do have a point. Congress has ignored their enumerated powers limitation with the full complicity of the SCOTUS. However, the 10th Amendment does provide a rallying point for states to try to turn back the imposition of federal power.

[Laz]

Originally Posted by ExNYer

And consider the Obamacare individual mandate by way of example. Four liberal justices said it was permissible based on the Commerce Clause of the Constitution. Chief Justice Roberts said "No, the Commerce Clause doesn't support it, but the power to tax does support the individual mandate". So, it was upheld, 5 to 4.

The individual mandate does not exist anymore. The item that was allowed was congress being able to tax you for not having approved health insurance. The end result is the same but it does recognize that the commerce clause does not give congress unlimited powers. Maybe that will continue if states push issues based on the 10th amendment. However, if Obama gets to replace one conservative judge then the court would probably say that the federal government has unlimited powers.

[JD Barleycorn]

First, the 10th amendment demonstrated to the world that the Bill of Rights was used to constrain the federal government and not to give it powers. It is pretty plain; anything not specifically mentioned for government powers belong to the states and not the federal government.

Timing is everything (or used to be). Case in point. Up here in a little town called Desoto, KS is a man who fought a 30 year battle with the county and the state. Seems that his mother was a member of the Fox tribe and the land she left him was given to the tribe back in the 1830s. It is tribal land dating to before Johnson County or the state of Kansas existed. Jimmy sold fireworks year round and cigarettes without any state or local tax stamp. After 30 years the courts found in his favor. His land claims predate both the county and the state therefore he cannot be compelled to pay those taxes.

As for X Yorker; no where do I agree with what the south did I am merely pointing out what is recognized by several scholars on the subject. You fail to realize that states were more important than the federal government in those days. As a region that was codified with the Mason/Dixon line they did have a singular identity. The Missouri Compromise stated that any state created below the southern most border of Missouri would become a slave (therefore a southern) state. When California entered the Union southern politicians insisted that it be divided into two sections and the southern one would be slave. The north reneged on a 30 year old agreement. What do you think would happen if the members of a business were constantly out voted by another faction even though you faction is nearly half of the business. Your business would probably collapse and break in two. That is what happened to the government in the 1850s and 60s. Southern interests were not going to be taken seriously and the south would be out voted everytime treaties be damned. It is recognized that the south had two choices; secede or be ruled by New York and Chicago.

[Yssup Rider]

TTH I'm more amazed when they discover spellcheck... An automatic function even of a hooker board.

Fucking idiots!

[I B Hankering]

Originally Posted by Whirlaway

I am sure out constitutional understanding of the 10th amendment will continue to evolve; much like the 2nd has. But we were citizens of the state well before we became citizens of a united republic.

Not so much “evolving” as it is “returning” to its original intent, as an examination of some recent court cases can attest. Jefferson and Madison’s remarks have been noted.

A Senate subcommittee of the 97th Congress wrote this report: “The Right To Keep And Bear Arms Report Of The Subcommittee On The Constitution Of The United States Senate Ninety-Seventh Congress.” (It's an excellent source document for those of you who have not read it.)
http://www.constitution.org/mil/rkba1982.htm

[Yssup Rider]

I think you had a dude read it to you while you were busy sucking his dong, right?