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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:

What is this [Commerce] power?

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.

Memo to Radley Balko, it was the Federalists who won the debate with the anti-Federalists during the Constitutional Convention and the ratification process.

Speaking for me only

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    Don't be confusin' (5.00 / 1) (#2)
    by Molly Bloom on Tue Sep 22, 2009 at 11:21:43 AM EST
    Don't be cunfusin' the John Tenthers and John Birthers and their grandfathers, the John Birchers with constitutional law!

    And there's the Tent amendment (5.00 / 2) (#3)
    by Dadler on Tue Sep 22, 2009 at 11:51:18 AM EST
    You have the right to remain silent, and if you choose not to exercise that right, Tent will be there to comment sharply and logically about what you've said and written.

    Keep it up.

    Law school moment (5.00 / 1) (#18)
    by Steve M on Tue Sep 22, 2009 at 12:34:21 PM EST
    Federalist Society president:  The courts are showing insufficient respect to the twin pillars of federalism, the Ninth and Tenth Amendments!

    Liberal con law professor (after hearing about the "twin pillars of federalism" for the umpteenth time):  Aww, poor little Ninth and Tenth Amendments, gettin' smaller and smaller!!

    Possibly you had to be there.  By the way, that twin pillars guy is now a federal appellate judge!

    Funny (none / 0) (#19)
    by andgarden on Tue Sep 22, 2009 at 12:37:51 PM EST
    What did he think of this?

    I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted, and that it embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution, is supported both by numerous decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment.


    Parent
    And of course, "the people" (none / 0) (#1)
    by andgarden on Tue Sep 22, 2009 at 11:16:52 AM EST
    elect Congress, which enacts their policy preferences. That a serious enough read for them? How about the 9th?

    I don't read Balko as arguing for nullification, (none / 0) (#4)
    by steviez314 on Tue Sep 22, 2009 at 11:51:21 AM EST
    but instead just a (very) strict reading of what the enumerated powers are.

    At least that seems more debatable than the silly GOP governors talk.

    Not one living person of any real influence (none / 0) (#5)
    by andgarden on Tue Sep 22, 2009 at 11:53:37 AM EST
    actually reads the Constitution strictly.

    Parent
    I think there's 4 of them on the Supreme Court (none / 0) (#7)
    by steviez314 on Tue Sep 22, 2009 at 11:55:45 AM EST
    who do, at least sometimes (at the wrong times).

    Parent
    No they do not (5.00 / 1) (#12)
    by Big Tent Democrat on Tue Sep 22, 2009 at 12:03:22 PM EST
    They only claim to.

    Parent
    Taken as a whole, they do not (none / 0) (#10)
    by andgarden on Tue Sep 22, 2009 at 11:58:42 AM EST
    The author at BTD's link admits this.

    Parent
    Got you: you ARE getting ready to (none / 0) (#8)
    by oculus on Tue Sep 22, 2009 at 11:58:10 AM EST
    start your own blog!

    Parent
    Then Balko is not understanding (none / 0) (#6)
    by Big Tent Democrat on Tue Sep 22, 2009 at 11:55:18 AM EST
    the ridicule that was directed at the Tenthers.

    Parent
    That seems about right to me-- (none / 0) (#9)
    by steviez314 on Tue Sep 22, 2009 at 11:58:14 AM EST
    he's fighting that ridicule, to gain support from that side, to make an argument that the 10thers aren't actually making themselves.

    Parent
    You argue he is being disingenuous (none / 0) (#11)
    by Big Tent Democrat on Tue Sep 22, 2009 at 12:02:50 PM EST
    Interesting defense.

    Parent
    Please--explanation, not defense. (none / 0) (#13)
    by steviez314 on Tue Sep 22, 2009 at 12:05:43 PM EST
    Fair enough (none / 0) (#14)
    by Big Tent Democrat on Tue Sep 22, 2009 at 12:07:55 PM EST
    Exceptions (none / 0) (#15)
    by ricosuave on Tue Sep 22, 2009 at 12:08:42 PM EST
    I thought the 10th amendment had specific exceptions for things relating to abortion, gay people, and end-of-life decisions?  Did you leave that part out of your quoted portion?

    Heh (none / 0) (#16)
    by Big Tent Democrat on Tue Sep 22, 2009 at 12:09:39 PM EST
    Indeed, no Tenthers argued against the ban on late term abortions.

    Parent
    Therefore... (none / 0) (#20)
    by Samuel on Tue Sep 22, 2009 at 01:54:15 PM EST
    "the theory of nullification was decided in 1865, when the North won the Civil War" - Constitutional debate is settled by violence?

    That debate was (none / 0) (#21)
    by Big Tent Democrat on Tue Sep 22, 2009 at 01:55:14 PM EST
    Are you advocating for nullification now?

    Parent
    Whoops (none / 0) (#23)
    by Samuel on Tue Sep 22, 2009 at 02:06:06 PM EST
    replied in a new thingy, sorry.

    Parent
    I'm not advocating anything. (none / 0) (#22)
    by Samuel on Tue Sep 22, 2009 at 02:05:48 PM EST
    You said "the problem with Balko's argument is twofold - (1) the theory of nullification was decided in 1865, when the North won the Civil War"  Are you suggesting that violence is what decides constitutional debates?  If my army kills your army then my argument is proven valid?  

    To be clear, I'm not asking at all in the context of the guy that edits Reason.  Just want to know if you think the winner in a violent competition is awarded logical consistency to his/her argument somehow in the process of violence.  If the answer is "no" then why would that sentence appear in your post?  Since the answer is most likely yes, at what point in time does violence turn into virtue, reason, logical consistency, etc?  

    Is there some other way to read what you said?  

    Gee whiz (none / 0) (#25)
    by Steve M on Tue Sep 22, 2009 at 02:14:07 PM EST
    How come you and I don't have to obey the latest Act of Parliament?  Because of violence!

    It is hardly uncommon for a nation's most contentious debates to be resolved through armed struggle.  We don't just have a council of philosopher-kings somewhere who has been laying down the law since time immemorial.

    If the South had won the Civil War then yes, we would have a political structure that looks much different.  So too if the British had won the Revolutionary War.  That's the way history works.

    Parent

    You're saying gee whiz. (none / 0) (#28)
    by Samuel on Tue Sep 22, 2009 at 02:16:23 PM EST
    Good.  

    Parent
    My point (none / 0) (#26)
    by Big Tent Democrat on Tue Sep 22, 2009 at 02:14:18 PM EST
    to restate the obvious, is that the nullification issue was decided in 1865.

    Parent
    And to be honest (none / 0) (#27)
    by Big Tent Democrat on Tue Sep 22, 2009 at 02:15:56 PM EST
    that was the only way to read it.


    Parent
    Looks like a (none / 0) (#29)
    by Samuel on Tue Sep 22, 2009 at 02:17:31 PM EST
    "yes" to me.  So you're saying that if the north consisted of 20% of the population but beat the other 80% into staying in the union - they're constitutionally justified?  

    Parent
    You're an idiot (none / 0) (#32)
    by Big Tent Democrat on Tue Sep 22, 2009 at 02:20:57 PM EST
    You're an intellectual titan. (none / 0) (#33)
    by Samuel on Tue Sep 22, 2009 at 02:25:46 PM EST
    Next time check before the mate.  

    So....

    2 + 2 = 4 but if I bunch 2 in the face enough, well look at that, it equals 5.  

    Parent

    You're still an idiot (none / 0) (#34)
    by Big Tent Democrat on Tue Sep 22, 2009 at 02:29:25 PM EST
    Secession is on the table according to you, idiot.

    Now get the hell out of my threads.

    You are suspended for a week.

    Parent

    Samuel (none / 0) (#36)
    by Big Tent Democrat on Tue Sep 22, 2009 at 03:38:40 PM EST
    You have been suspended.

    Originally for a week.

    But since you have not respected the suspension. It is now for a month.

    Next one will be permanent.

    and if it continues, I will ask for you to be banned.

    Parent

    You are permenently banned from my threads (none / 0) (#40)
    by Big Tent Democrat on Wed Sep 23, 2009 at 09:12:14 AM EST
    Do not comment any more.

    All of your comments will be deleted.

    Parent

    Just to be contrarian.. (none / 0) (#24)
    by gtesta on Tue Sep 22, 2009 at 02:11:36 PM EST
    I happen to think the consitution delegates national health care as a power of congress.

    U.S Constitution - Article I, Section 8 - The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    Welfare - n. 1. health, happiness, or prosperity; well-being.

    So, it's 'silent leges enim inter arma' time? (none / 0) (#30)
    by SeeEmDee on Tue Sep 22, 2009 at 02:18:31 PM EST
    "Law stands mute under force of arms." In other words, the guy with the guns makes the laws? That's what this sounds like:

    "...the theory of nullification was decided in 1865, when the North won the Civil War.

    By such arguments, one can claim that force majeure, = right. Haven't we had 8 years of that kind of crap, already?

    Yes, there's who-knows how much bloody water that's rushed under the bridge after monumental mistakes (like granting corporations personhood) are enshrined into law, but that doesn't make them morally right to leave them in place. Nor should Federal suzerainty remain unchallenged when it's overweening and corrosive of civil liberties. Or is that too 'quaint' a position for many here?

    The Lost Cause! (5.00 / 1) (#31)
    by Big Tent Democrat on Tue Sep 22, 2009 at 02:20:28 PM EST
    Some of you are so ridiculous.

    Parent
    that "nullification" (none / 0) (#35)
    by cpinva on Tue Sep 22, 2009 at 03:13:16 PM EST
    was an unconstitutional act, by the southern states, was self-evident, by any reading of the 10th amendment. unfortunately, it necessitated a war to bring those states back into compliance with their constitutional obligations.

    that the north was victorious had nothing to do with the correctness of their position, as a policeman's use of potentially lethal force has nothing to do with the illegality of the acts of the criminal so arrested. both are simply the means by which the non-compliant party is brought back into compliance.

    samuel's assertion that BTD's comment equates to superior force = right is therefore rendered null and void on its face.

    As I recall (none / 0) (#38)
    by jondee on Tue Sep 22, 2009 at 04:54:18 PM EST
    when it came the issue of making sure that thier runaway slave property was returned to them, the crackers back then were all FOR invoking the powers of the federal government. States Right and nullification my as*.

    And the sclerotically narrow self-interested hypocrites are still at it today.

    Parent

    you recall correctly. (none / 0) (#39)
    by cpinva on Tue Sep 22, 2009 at 08:43:15 PM EST
    the fugitive slave act pretty much ran roughshod over the rights of those states where it wasn't as vested. while they technically followed the law, those state gov'ts tended to turn an official blind eye to groups running the underground railroad.

    the indignant howls from the southern states could be heard everywhere.

    Parent