Taking The Tenth Amendment Seriously
Radley Balko accuses those of us who ridicule the modern day John C. Calhouns in the Republican Party (see, e.g., Rick Perry and Tim Pawlenty arguing they can nullify federal legislation) as not taking the Tenth Amendment seriously. the problem with Balko's argument is twofold - (1) the theory of nullification was decided in 1865, when the North won the Civil War; and (2)the Tenth Amendment does not say what he thinks it does. Balko says we can look it up. Indeed we can. Here is what the Tenth Amendment says:
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 text makes clear that the key analysis is what powers were "not delegated to the United States." In essence, the Tenth Amendment is irrelevant to the argument. It is not "states rights" via the Tenth Amendment that determine whether the Congress can act, it is the rest of the Constitution that is at issue. Of course the main issues, given the jurisprudence, is the Commerce power. Tenthers like to ignore Gibbons v. Ogden, where Chief Justice John Marshall wrote:
< If Gen. McChrystal Threatens Resignation, He Should Be Removed | CBO: Wyden's Exchanges As Useless As Conrad's Co-ops > |