So called “tenthers” are arguing these days that a range of laws and programs passed by Congress over the centuries are unconstitutional violations ofthe Tenth Amendment (technically known as "Article X" of the Constitution.
The 10th Amendment provides:
“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.”
A typical argument is that there is “no specific power in the constitution for Congress to adopt a ‘this’ program [such as Social Security]” and they point to the enumerated powers in Article II.
They gloss over three things:
First, Article X does not say “not specifically delegated to the United States....”
Second; Article II, as drafted and adopted by the “founding fathers [and mothers .... I’ll betcha there was lots of espousal ‘discussion’ around the kitchen table and some nights on the couch , about the draft Constitution] has a “here you guy, boys, go on out and play” clause in Section 8,
"The Congress shall have Power.... 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States....”
That is a specific delegation of a general, non-enumerated power to Congress.
Anyone who has actually worked on drafting a law has struggled with the issue of how “general” or how “specific” any particular provision should be.
Too general and you fail to provide necessary guidance to people (the “void for vagueness” doctrine) or not only open the barn doors, but tear the whole thing down as an enclosure; too specific and the law may not achieve the full desired effect, especially as conditions in a society change.
The FF/Ms knew of this balancing act: they avoided “too general” by tying the ‘necessary and proper’ clause to the powers granted by the Constitution, they avoided the too narrow a Constitution by including this general clause.
Third point: The “tenthers ignore the final provision in Article X:
“The powers not delegated to the United States ... are reserved to the States respectively, or to the people.”
How do “the people” exercise the powers “reserved? to them?”
The people can only exercise their power through their vote: by electing officials based on the vision of government and the programs they propose.
So, even Article I doesn't directly reach some program, the "reserved to the people" clause in Article 10 confers that power by the people exercising the vote.
There is, of course, a legitimate question as to how broad the powers of Congress (and the Executive) should be.
But Article X is not a sound basis on which to reach the conclusion that the powers are narrowly limited to only the powers specifically mention in Article I [Congress] (and Article II [the Executive])
[On Edit] See, also my more recent blog discussion of where the Federalist Papers explicitly reject this restrictive "tenther" reading)
Bonus point: If you are a “tenther,” you have to be opposed to immigration quotas - the Constitution does not confer any power to regulate immigration.
Section 8.4, does confer on congress the power to “establish an uniform Rule of Naturalization” but naturalization is not immigration - immigrants might seek to become citizens, which is what naturalization is, but “moving here” is not the same thing as “becoming a citizen here.
1. So what, exactly then, does Article X prohibit the Federal Government from doing?
ReplyDelete2. How about if I'm a "tenther" and agree that the U.S. cannot regulate immigration, but contend that any state can?
Hmm. I thought I had replied.
ReplyDeleteThere have been a number of congressional acts found to be unconstitutional on the basis of the 10th. The latest that I know of involved portions of the 2005(?) violence against women act: http://en.wikipedia.org/wiki/Violence_Against_Women_Act
Re state immigration powers.
At first glance, yep, that would be the logical consequence of the tenther position.
And because it would (likely) create a completely unworkable mishmash of contradictory state laws, it turns into a really good argument against the tenther position that Congressional powers are restricted to only those specifically named.
For example: what if Ohio allowed [close to] unrestricted immigration for migrant workers (there are plenty here) believing that easy entrance and exit and re-entrance is the best way to keep permanent migrant residency low.
But Nevada had really restrictive requirements.
Could an immigrant flying into Toledo Express Airport for Guadalajara under Ohio's law then travel to Nevada?
BTW: In Federalist Paper 37, Madison acknowledged that the Constitution, drafted by mere men, is imperfect.
It makes no sense to try to read it as a perfect, immutable, document to be read in only one strict way.
The Constitution AND the Federalist papers are completely silent on any requirement to use "original intent" in construing that doctrine -- so the original intent of the framers is not known and thus there is no original intent basis to use original intent as process for construing the Constitution.
The People are not limited to exercising powers/rights solely through the vehicle of government.
ReplyDeleteFor instance, many places in the US require a permit in order to have a large social gathering in a public space. However, this is contrary to the inalienable right of individuals to peaceably assemble. Acquiring a permit is an act of asking permission. If it is a right (defined as natural right), then one does not need to ask permission. If you need permission it is a privilege.
But, specifically regarding immigration issue... The Federal Government was granted power over naturalization. Naturalization is NOT the same as immigration.
And yes, this will result in states being different. But, really, why can't Vermont be Vermont and Texas be Texas? Why the desire for top-down uniform policy?
Anonymous, concerning your right versus privilege question: Rights are not absolute, they inherently cannot be in part because they sometimes conflict. Thus, freedom of the press is regulated by not allowing you to publish child pornography, freedom of speech in inhibited by laws about incitement to riot, a conversation that furthers a criminal conspiracy is not exempted from prosecution by the first amendment. Gun rights and voting rights are routinely denied to convicted felons. Rights are not absolute.
ReplyDeleteSo what are reasonable restrictions? If requiring a permit for a gathering of a hundred people is reasonable, what about changing the limit to 50? Or 10? Or 2?
That's why there is a judicial branch, to impartially judge what is reasonable.
That is also why precedents sometimes get overturned, because societal standards of what is reasonable change.
Anonymous: thanks for your comments
ReplyDeleteYou wrote:
>>The People are not limited to exercising powers/rights solely through the vehicle of government.
True. But exercising the reserved power through elections is one vehicle. (Note, however, that this theory of mine is, so far as I know, unique. One should be cautious, I believe, in buying into a unique theory which the centuries of great legal minds, scholars and practitioners and courts alike haven’t already considered.)
>>For instance, many places in the US require a permit in order to have a large social gathering in a public space. However, this is contrary to the inalienable right of individuals to peaceably assemble. Acquiring a permit is an act of asking permission. If it is a right (defined as natural right), then one does not need to ask permission. If you need permission it is a privilege.
Most if not all of the constitutional rights have conflicting considerations.
A purpose of the Constitution is to "insure domestic Tranquility" [Preamble at http://constitutionus.com/]
The state's obligation to preserve the peace and the people right to _peaceably_ assemble can seem to be in conflict.
To do it's job, the gov has to know what is going on and where, so that it the people fail to maintain the peace, the government can do it's job
When on tries to read any of the Bill of Rights as some sort of absolute, one runs (whether one recognizes it or not) into all sorts of contradictions and impossibilities.
“Free speech” does not include shouting “Fire!” in a crowded theater. (A "strict," absolutist reading would suggest otherwise.)
Constitutional law usually involves a balancing of the competing interests and arguments.
Should churches be taxed? To not tax them is a form of “establishment of religion.” The power to tax them is the power to interfere with them.
We, the people, acting through our representatives have decided that the risk of an “establishment violation” is outweighed by the potential to use taxes to unduly interfere with the free exercise of religion.
>>But, specifically regarding immigration issue... The Federal Government was granted power over naturalization. Naturalization is NOT the same as immigration.
>>And yes, this will result in states being different. But, really, why can't Vermont be Vermont and Texas be Texas? Why the desire for top-down uniform policy?
We the people ratified a constitution which establishes federal law as supreme (Article VI) and (ii) there are times when uniformity is essential.
Remember, right after the Revolution, we tried a very loose confederation with almost no federal power or uniformity. It was a disaster.
E.g., why not let states each establish a currency? Why not let states each set a standard for nationalization?
Just as with immigration, if each state sets its own rules for naturalization, should a person recognized as US Citizen by a state with ‘low standards’ have the rights of citizenship if he/she moves to a state where the qualifications are higher and would not have been met?
Law is more that a set of rules derived form some version of “natural philosophy.”
Law is the way we govern ourselves: the way we choose to set standards for getting along together.
To ignore the practical effect and necessity of laws and insist on “philosophical purity” is to dream of a world which simply doesn’t exist.
("Natural law" is not some fixed, immutable set of ideas which are so shiningly true everyone agrees with "them." It is just one set of opinions.)
Again, thanks for commenting and joining the discussion.
Anonymous: thanks for your comments
ReplyDeleteYou wrote:
>>The People are not limited to exercising powers/rights solely through the vehicle of government.
True. But exercising the reserved power through elections is one vehicle. (Note, however, that this theory of mine is, so far as I know, unique. One should be cautious, I believe, in buying into a unique theory which the centuries of great legal minds, scholars and practitioners and courts alike haven’t already considered.)
>>For instance, many places in the US require a permit in order to have a large social gathering in a public space. However, this is contrary to the inalienable right of individuals to peaceably assemble. Acquiring a permit is an act of asking permission. If it is a right (defined as natural right), then one does not need to ask permission. If you need permission it is a privilege.
Most if not all of the constitutional rights have conflicting considerations.
A purpose of the Constitution is to "insure domestic Tranquility" [Preamble at http://constitutionus.com/]
The state's obligation to preserve the peace and the people right to _peaceably_ assemble can seem to be in conflict.
To do it's job, the gov has to know what is going on and where, so that it the people fail to maintain the peace, the government can do it's job
When on tries to read any of the Bill of Rights as some sort of absolute, one runs (whether one recognizes it or not) into all sorts of contradictions and impossibilities.
“Free speech” does not include shouting “Fire!” in a crowded theater. (A "strict," absolutist reading would suggest otherwise.)
Constitutional law usually involves a balancing of the competing interests and arguments.
Should churches be taxed? To not tax them is a form of “establishment of religion.” The power to tax them is the power to interfere with them.
We, the people, acting through our representatives have decided that the risk of an “establishment violation” is outweighed by the potential to use taxes to unduly interfere with the free exercise of religion.
>>But, specifically regarding immigration issue... The Federal Government was granted power over naturalization. Naturalization is NOT the same as immigration.
>>And yes, this will result in states being different. But, really, why can't Vermont be Vermont and Texas be Texas? Why the desire for top-down uniform policy?
We the people ratified a constitution which establishes federal law as supreme (Article VI) and (ii) there are times when uniformity is essential.
Remember, right after the Revolution, we tried a very loose confederation with almost no federal power or uniformity. It was a disaster.
E.g., why not let states each establish a currency? Why not let states each set a standard for nationalization?
Just as with immigration, if each state sets its own rules for naturalization, should a person recognized as US Citizen by a state with ‘low standards’ have the rights of citizenship if he/she moves to a state where the qualifications are higher and would not have been met?
Law is more that a set of rules derived form some version of “natural philosophy.”
Law is the way we govern ourselves: the way we choose to set standards for getting along together.
To ignore the practical effect and necessity of laws and insist on “philosophical purity” is to dream of a world which simply doesn’t exist.
("Natural law" is not some fixed, immutable set of ideas which are so shiningly true everyone agrees with "them." It is just one set of opinions.)
Again, thanks for commenting and joining the discussion.
Anonymous: thanks for your comments
ReplyDeleteYou wrote:
>>The People are not limited to exercising powers/rights solely through the vehicle of government.
True. But exercising the reserved power through elections is one vehicle. (Note, however, that this theory of mine is, so far as I know, unique. One should be cautious, I believe, in buying into a unique theory which the centuries of great legal minds, scholars and practitioners and courts alike haven’t already considered.)
>>For instance, many places in the US require a permit in order to have a large social gathering in a public space. However, this is contrary to the inalienable right of individuals to peaceably assemble. Acquiring a permit is an act of asking permission. If it is a right (defined as natural right), then one does not need to ask permission. If you need permission it is a privilege.
Most if not all of the constitutional rights have conflicting considerations.
A purpose of the Constitution is to "insure domestic Tranquility" [Preamble at http://constitutionus.com/]
The state's obligation to preserve the peace and the people right to _peaceably_ assemble can seem to be in conflict.
To do it's job, the gov has to know what is going on and where, so that it the people fail to maintain the peace, the government can do it's job
@ Anonymous
ReplyDeleteMy comments continued:
When on tries to read any of the Bill of Rights as some sort of absolute, one runs (whether one recognizes it or not) into all sorts of contradictions and impossibilities.
“Free speech” does not include shouting “Fire!” in a crowded theater. (A "strict," absolutist reading would suggest otherwise.)
Constitutional law usually involves a balancing of the competing interests and arguments.
Should churches be taxed? To not tax them is a form of “establishment of religion.” The power to tax them is the power to interfere with them.
We, the people, acting through our representatives have decided that the risk of an “establishment violation” is outweighed by the potential to use taxes to unduly interfere with the free exercise of religion.
>>But, specifically regarding immigration issue... The Federal Government was granted power over naturalization. Naturalization is NOT the same as immigration.
>>And yes, this will result in states being different. But, really, why can't Vermont be Vermont and Texas be Texas? Why the desire for top-down uniform policy?
We the people ratified a constitution which establishes federal law as supreme (Article VI) and (ii) there are times when uniformity is essential.
Remember, right after the Revolution, we tried a very loose confederation with almost no federal power or uniformity. It was a disaster.
E.g., why not let states each establish a currency? Why not let states each set a standard for nationalization?
Just as with immigration, if each state sets its own rules for naturalization, should a person recognized as US Citizen by a state with ‘low standards’ have the rights of citizenship if he/she moves to a state where the qualifications are higher and would not have been met?
Law is more that a set of rules derived form some version of “natural philosophy.”
Law is the way we govern ourselves: the way we choose to set standards for getting along together.
To ignore the practical effect and necessity of laws and insist on “philosophical purity” is to dream of a world which simply doesn’t exist.
("Natural law" is not some fixed, immutable set of ideas which are so shiningly true everyone agrees with "them." It is just one set of opinions.)
Again, thanks for commenting and joining the discussion.
@ Anonymous -- my comments continued: (part 2 of 3)
ReplyDeleteWhen on tries to read any of the Bill of Rights as some sort of absolute, one runs (whether one recognizes it or not) into all sorts of contradictions and impossibilities.
“Free speech” does not include shouting “Fire!” in a crowded theater. (A "strict," absolutist reading would suggest otherwise.)
Constitutional law usually involves a balancing of the competing interests and arguments.
Should churches be taxed? To not tax them is a form of “establishment of religion.” The power to tax them is the power to interfere with them.
We, the people, acting through our representatives have decided that the risk of an “establishment violation” is outweighed by the potential to use taxes to unduly interfere with the free exercise of religion.
>>But, specifically regarding immigration issue... The Federal Government was granted power over naturalization. Naturalization is NOT the same as immigration.
>>And yes, this will result in states being different. But, really, why can't Vermont be Vermont and Texas be Texas? Why the desire for top-down uniform policy?
We the people ratified a constitution which establishes federal law as supreme (Article VI) and (ii) there are times when uniformity is essential.
Remember, right after the Revolution, we tried a very loose confederation with almost no federal power or uniformity. It was a disaster.
E.g., why not let states each establish a currency? Why not let states each set a standard for nationalization?
Just as with immigration, if each state sets its own rules for naturalization, should a person recognized as US Citizen by a state with ‘low standards’ have the rights of citizenship if he/she moves to a state where the qualifications are higher and would not have been met?
Part 3
ReplyDeleteLaw is more that a set of rules derived form some version of “natural philosophy.”
Law is the way we govern ourselves: the way we choose to set standards for getting along together.
To ignore the practical effect and necessity of laws and insist on “philosophical purity” is to dream of a world which simply doesn’t exist.
("Natural law" is not some fixed, immutable set of ideas which are so shiningly true everyone agrees with "them." It is just one set of opinions.)
Again, thanks for commenting and joining the discussion.
Seriously, you say the 10th Amendment is toothless because it doesn't say "specifically?" The lack of specifically is the crux of your argument? A delegated power is a delegated power, all others are reserved. Simple as that. If I tell my son to go to bed at 8 pm, I don't have to say "go to bed specifically at 8 pm." He is to go to bed a 8 pm. Why take the time to list 18 enumerated powers when the FF really just wanted to allow the all knowing, all powerful General Government to do what ever they wanted? Specifically, that is moronic.
ReplyDeleteSecondly, the 18th clause of Article 1, Section 8 says "foregoing Powers." That phrase refers to the other 17 enumerated powers. It is right there in the clause. This clause isn't even an enumerated power, it simply states the conditions under which Congress can pass laws to support the enumerated powers. They must be necessary and proper. Example, if it is necessary to build a fort for the Army (an enumerated power), it is necessary and proper to buy wood, bricks, tools, and labor to build the fort. There can be no necessary and proper laws passed that do not tie back to the previous 17 enumerated powers. I missed the part in the Constitution that says legislating over education, health care, FDA, etc. are enumerated powers. Therefore, how can there be any necessary and proper law supporting these services/departments? This is much like missing the "and subject to the jurisdiction thereof" in the 14th Amendment.
Powers are reserved to the States because for many years (some for over 100 years) they had rules themselves. In the Declaration of Independence, they were declared free and independent. King George cited each specifically in the Treaty of Paris. During the time of the Articles of Confederation, they were free and independent. Yes, there were flaws w/the Articles, but the Constitution does not strip power from the States, it merely transfers delegated powers from the sovereign people of the States from the State legislatures/executive to the General Government. The FF knew the people of the States would not approve a form of government that radically altered their way of life (the Constitution itself was radical enough). The 10th also says "or to the people" because the people are ratifiers of the Constitution and any amendments. Only through a Constitutional amendment can the verbiage and meaning of the document be changed. Don't confuse framers and ratifiers. The framers suggest, the ratifiers approve. The people of the several States approved the Constitution and any amendments, not the State legislatures/executive or General Government. That is why it says "or to the people." That is part of Natural Law you seem to dismiss so quickly...the individual is sovereign.
BTW, I didn;t say the 10th amendment is toothless - There was a big debate at the Con Convention in which at least some of the framers took one of two positions: the 10th was a strict limitation to the specific enumerated powers or the necessary and proper clause gutted the 10th.
ReplyDeleteThe reality is somewhere between the two, as our constitutional law history has shown.
How can the "necessary and proper" clause gut the 10th? Which came second? The 10th. Which handcuffed which? The 10th handcuffed the General Government.
ReplyDeleteThink about it. I already explained how you misunderstand the necessary and proper. According to Jefferson (someone you have quoted before) he said "absolutely necessary and absolutely proper."
What does the 10th provide protection against if not a strict limitation of the General Government to the enumerated powers?
Constitutional law is concerned w/case law...precedent. Precedent is a judgement or a decision taken by a court in some previous case, which would form a basis of all similar cases or trials in the future. What happens when the court is wrong? Should bad precedence be used to decide future cases? Be careful relying on constitutional law history.