You really should check out Slate magazine’s discussion of the Supreme Court term (beginning here), whose participants this year are Richard Posner, Dahlia Lithwick, and Walter Dellinger (who taught at Ole Miss law school in 1966-68). Posner on Miller v. Alabama and Dellinger’s most recent on US v. Arizona are particularly good. Posner takes a nice shot at originalism:
I don’t object to a loose construction of the Constitution; there isn’t any sensible alternative, given how old and out of touch the document is, how unrecoverable the actual thinking of its authors and ratifiers, and how vaguely worded so much of it is. But it would be nice if interpretation could be based on something more than gut.
He also notes that our criminal law system does not suggest a society growing toward greater decency:
Is the United States a maturing society? Surely not in the realm of criminal law, a real disaster area—we imprison a higher fraction of our population than any civilized nation (and than most of the uncivilized ones), many for trivial crimes involving mind-altering drugs less dangerous than alcohol or cigarettes; life sentences are imposed with abandon; prosecutorial discretion is very broad and often exercised irresponsibly; and judges’ sentencing discretion, also broad, is exercised much of the time in an intellectual vacuum.
Dellinger notes this about the soveriegnty of the states:
the one thing an advocate before the Supreme Court can never, ever do is to suggest in any way that the states are less than fully sovereign. Full state sovereignty has to be taken as an assumption, or a trap door will open beneath your feet and you will descend to some black hole deep in the basement of the court.
He concludes by reference to…
… Scalia’s notion that the court has no business subordinating the states to a president’s policies on enforcement of the immigration laws. Only Congress can make determinations that override the states on this subject, and there is no room for the exercise of presidential prosecutorial discretion, in Justice Scalia’s view.
So Justice Scalia thinks now. But Stanford Law prof. Pam Karlan, working on her greatly anticipated forward to the Harvard Law Review’s Supreme Court Term issue, noted to me that Justice Scalia took a different approach in his truly classic 1998 dissent in Morrison v. Olson.Back then, he argued that “law enforcement functions” have “always and everywhere” been an exercise of executive power; that “the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted” involves “the balancing of various legal, practical, and political considerations, none of which is absolute”; and that “[t]o take this away is to remove the core of the prosecutorial function, and not merely ‘some’ Presidential control.”
Justice Scalia had it right in Morrison v. Olson. And he got one thing right in his bench statement in this week’s immigration case. “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.” Motion seconded.
“But it would be nice if interpretation could be based on something more than gut.”
The majority of Posner’s respoinse was not a “shot at originalism,” but a criticism of the loose and unreliable analysis employed by the majority in Miller. I think Posner would agree that we now have very little idea of exactly what punishments are “cruel and unusual.” Rather, all we know is a particular case (or two) that felt wrong enough for five justices to decide the result was unconstitutional. It’s anyone’s guess what will satisfy this standard next.
The arguments that we are having on this board concerning whether we should have an all-powerful federal government or whether substantial rights were and are retained by the states has been going on for 225 years.
I could not disagree more with the portion of the Court’s ruling in U.S. v. Arizona overturning parts of Arizona’s law. I’m just stunned that anyone could object to a state passing laws that are either identical to federal law or else have the purpose of enforcing federal law. As a citizen I have the right to make a citizen’s arrest, so I don’t understand why our states can’t essentially exercise those same rights.
I find your comparison in a previous post of keeping illegal immigrants out of a state to enforcing segregation by keeping blacks from being in town after sundown to be a poor one. Illegal immigrants are in this country illegally. That’s why they are called illegal immigrants. They are not undocumented, because in most cases there are documents which clearly establish that they aren’t supposed to be here.
NMC, you want an all-powerful federal government, with the state legislatures reduced to the status of county supervisors. I want a relatively weak federal government, with states being free to provide the government their citizens want. Should a state government become to tyrannical, we can always more. But with all power in the federal government we really have no escape from tyranny. I think that’s really what liberals want, because what me and mine see as tyranny liberals see as necessary force to create a greater society. Well, my attitude is if this proposed society is so great, just create it in a few states and we’ll all move there. How has it worked in California, by the way?
One thing I do agree with you on is the terrible condition of our criminal justice system. We have reduced crime rates by locking up the burglars and petty thieves, which is fine, but we’ve also locked up a lot of petty drug users and other petty criminals in the process. More often than not the serious offenders get light sentences by “rolling” on others while the novice druggies have no one to rat on and often get long jail terms. Add to this the fact that many of our prisons are no better than medieval dungeons and it totals up to a national disgrace. And this is happening at both the federal and state level, so your notion of an all-powerful federal government being good certainly isn’t working here!
Col Reb, didn’t the South fight and lose a war with the North, in the 1860′s, attempting to advance your theory on federalism?
CRS sez: I want a relatively weak federal government, with states being free to provide the government their citizens want. Should a state government become to tyrannical, we can always more.
I’m not sure what those sentences say, but … don’t your views loop right back to what America had or was under the Articles of Confederation?
And as for your comment regarding state legislatures being reduced to the level of county supervisors: I don’t want states to have even that much authority.
“Col Reb, didn’t the South fight and lose a war with the North, in the 1860′s, attempting to advance your theory on federalism?”
Okay, the 10th Amendment has not been repealed. More importantly, the enumerated powers have not been retitled “A Non-exhaustive List of Examples of Federal Power.”
NotZachScruggs said: Col Reb, didn’t the South fight and lose a war with the North, in the 1860′s, attempting to advance your theory on federalism?
NotZachScruggs,
I would say partially yes and partially no. The civil war did not eliminate the 10th Amendment, and it has been found to be “alive” on numerous occasions. The civil war was essentially fought over the issue of whether or not slavery was going to be permitted in newly added territories, and if so to what degree. It was not fought to “end” slavery, and it’s important to note that the working-class whites in the North who opposed the extension of slavery were not so much against slavery as they were against black labor. So if the question had been reframed, “Should free blacks be permitted in newly admitted territories?” most Northerners would have said no. Only a fairly small religious and intellectual elite actually sought any type of equal rights for blacks.
Certainly the federal government had far more authority following the Civil War than before it. But the federal government has continued to grow in power since then. I think even the most ardent supporters of increased federal power in 1860 or 1870 would be shocked at the coring out of state sovereignty today.
Oh, and Ben, I’m not suggesting that I would seek a federal government as weak as that under the Articles of Confederation. But neither do I want one as strong and overbearing as it is today. There’s supposed to be some back and forth here, but some suggest that any movement of the Supreme Court that might allow any rights at all to be retained by the states is a disaster. I view it as a blessing.
Didn’t the immigration decision vindicate the right of the State of Arizona’s law enforcement officers to ask, “May I see your papers, please?” after a legitimate arrest? Isn’t that a sufficient retained right for a state? Then, if all the state is trying to do is help the Feds with enforcement of the immigration laws, can’t they just send word that they have a name and address that may be of interest to the Feds as they exercise their prerogative to enforce the immigration laws as directed by the President?
NotZachScruggs,
By federal law, legal immigrants are required to carry their immigration documents with them at all times. So how can this be unconstitutional when a state requires it, too?
Why can’t state police arrest those suspected of being illegal aliens when all of us have an inherent right to make citizen’s arrests?
And finally, how in the world is it unconstitutional for a state to pass a law making it illegal for illegal immigrants to hold jobs in a state? What part of “illegal immigrant” do these justices not understand?
Now I do understand that all of these things are unconstitutional because the Court now says they are unconstitutional. But it goes against my view of the Constitution. But in answer to your question, certainly the right of Arizona law enforcement to ask about and investigate legal status on probable cause is certainly a partial win for Arizona, and certainly the argument can be made that Arizona has won the biggest part of the case.
CRS, have you actually read Kennedy’s majority opinion? It may serve to answer your histrionic questions — or at the very least, it could provide some of the terms of discussing what the court actually ruled.
CRS, I have to join in your dissent of many of the comments that have appeared here recently concerning the federal government’s attempt to infringe on the rights of the states. I disagreed earlier on another thread when I read the concept that the War of Northern Aggression – ok, the Civil War – eliminated the 10th amendment. While the Federal Government took over many powers during the war and in the years thereafter, it did not in any way eliminate the 10th amendment from our Constitution.
What I find disturbing is the number of people that think anytime the Supreme Court rules in any way about the “rights” of a state, or the “soverignty” of our states, that it is a move by the ‘radicals’ that have taken over our courts and that the court has become a political pawn. It seems to me that they are just doing what they are supposed to be doing, enforcing (not changing) the Constitution.
ColRebsez:
Is there a time in American history where you feel the right balance was struck between the power of the federal government v. states rights? Pre-FDR, Pre-LBJ, etc. Your thoughts and comments are appreciated. JWG.
1962 (when Goldberg joined Warren) until 1968 (when Warren retired) were good years.
In reading over the article and the accompanying comments, two phrases keep coming to mind: In the case of Miller, the operative phrase should be “narrowly tailored.” With respect to debate over the Arizona decision, “Reserved Powers” (see Amendment X of the U.S. Constitution).
when I read the concept that the War of Northern Aggression
One of those rarely-fallible signs that one can just quit reading at that point.
Sorry your state didn’t get to secede, but *you* can leave this aggressor republic any time you like. Don’t let the border fence hit your ass on the way out.
Some odd things being opined here. It was written:
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War of Northern Aggression – ok, the Civil War – eliminated the 10th amendment.
While the Federal Government took over many powers during the war and in the years thereafter, it did not in any way eliminate the 10th amendment from our Constitution.
< <
No, it was the Fourteenth Amendment that radically changed the landscape.
How did the tenth amendment get into this discussion anyhow? The question in the immigration cases was whether the expansive legislation in the area of immigration by the federal government preempted what Arizona was trying to do. It did. Tenth amendment never came up; the only question was preemption. In the Health Care Act, the question is whether regulation of interstate commerce as it pertains to health insurance and health care comes within the power of Congress to regulate interstate commerce.
Having stated the question, I'm having a little trouble understanding why I'm so concerned the answer might be that regulating interstate commerce in insurance and health care does not fall within the commerce clause. But that the apparently close question to be decided tomorrow.
However it's decided, the tenth amendment has exactly nothing to do with that. Does Congress have that power within the commerce clause. Let's put it this way: If the 10th Amendment had never been passed we would be asking the exact same question framed in the exact same way, and even the answer would be the same-- Whether Scalia, Roberts, Breyer, Kennedy, Ginzburg, or Sotomayor (etc) write the majority opinion tomorrow, it will be about the commerce clause and not one bit about the tenth amendment.
So I ask again, how did the 10th amendment enter into this discussion?
The comment goes on further:
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What I find disturbing is the number of people that think anytime the Supreme Court rules in any way about the “rights” of a state, or the “soverignty” of our states, that it is a move by the ‘radicals’ that have taken over our courts and that the court has become a political pawn. It seems to me that they are just doing what they are supposed to be doing, enforcing (not changing) the Constitution.
<<
Reading this, I have to wonder if the author is aware that the Supreme Court ruled against the point of view that state sovereignty decided this, resolving that the state action was preempted.
The radicals weren’t writing majority opinions Monday. We’ll see about tomorrow, and whether the commerce clause still allows Congress to legislate regulating interstate commerce.
NMC said: How did the tenth amendment get into this discussion anyhow?
NMC, you said in the previous post that in your view the states did not retain sovereignty. I pointed out that the tenor of your posts is that you want an all-powerful federal government that would reduce the state legislatures to little more than county boards of supervisors. Ben said that left them with too much power. So that’s how we got there.
I don’t support the expansive view of the Commerce Clause that you do. I think the Court got it wrong in Wickard v. Filburn and everything since. In other words, I don’t think Congress should be allowed to regulate those things that have only an incidental effect on interstate commerce. We can hope that the Court will put some limits on the Commerce Clause tomorrow. We have little to lose and everything to gain by limiting federal power.
p.s. I don’t know why my entire post is in italics.
The Tenth Amendment got injected into this discussion because it is one of the states’ rights fetishists favorite objects of adoration. It makes no difference whatsoever whether it’s relevant to the Arizona ruling or to the ACA ruling. If the federal government is involved, they’ll cite it like it’s the Passion on Easter Sunday.
There have always been people in this country who simply cannot be content with the middle class and upper-middle class privileges in the richest and freest society that has ever existed. For them, it’s not enough. There must also be fear, and not just any fleeting fear: there must be the existential, even eschatological fear that at any moment — tonight, perhaps, while you sleep — you and your family might be enslaved by the American government. Literally enslaved, like an ancient people at the hands of an aggressor army. For most of us that is clearly a paranoid delusion. For others it’s a political philosophy, a fetish, a theology. It leads some people to believe and declare things like “We have little to lose and everything to gain by limiting federal power,” without acknowledging that American “federal power” has fairly recently liberated millions from the tyrannies of their state and local governments.
Apologies if I’ve posted this quotation from Charles Simic already on this board, but ever since I saw it a few months ago, I can’t find any evidence to refute it:
“The new American Dream is to get to be unbelievably rich and still be regarded as a victim.”
That’s how the Tenth Amendment got dragged into this.
CRS:
The Tenth Amendment has absolutely nothing to do with this discussion unless you are attending to the noises in the right wing echo chamber, as opposed to legal analysis.
Here are two legal questions that show why:
Does the Commerce Clause authorize a particular Congressional action?
Does the Commerce Clause authorize a particular Congressional action, and TENTH AMENDMENT, TENTH AMENDMENT, TENTH AMENDMENT!?
I ask you to tell me what language in those questions is not needed to answer the legal question involved? Pretty easy, isn’t it. You and I may disagree about the Commerce Clause, BUT that’s the disagreement. The Tenth Amendment has no relevance to answering that question. If the Commerce Clause says “yes, it can be done,” over and out. It’s allowed. If not, not. We don’t have to resort to the Tenth Amendment to answer; it doesn’t even help.
So I’ll ask again: How did the Tenth Amendment get into this discussion anyhow?
If those two questions seem equally valid, in addition to other facts-of-life, the current version of the right wing mind is resistant to Ocam’s Razor.
One of the aspects of political debate that come pretty close to enraging me is the inability of folks on the other side to even hear what is said. My post about Scalia was based literally on what he himself wrote, and I called him out on it. I got attacked for imputing racism to him when he had cited with approval a lot of dark moments in American history.
My question about the Tenth Amendment was about just what I said here, yet CRS, who I know to be reasonably intelligent, started ranting about federal power instead of attempting to read and understand what I said.
I’ll repeat: WTF has the Tenth Amendment got to do with the question of the scope of the Commerce Clause?
NMC,
In your earlier post you criticized the use of the word “Sovereign,” and in response to Ben made mention of it as being something connected with Ross Barnett. I guess my point was that it is far more than that.
Someone else originally brought up the 10th Amendment issue and I responded to it, but as a practical matter the expansive Commerce Clause and the Tenth Amendment are diametrically opposition to one another. If one goes as far as you do on the Commerce Clause, then there really is no 10th Amendment any more. I do agree that your view on the Commerce Clause is much closer to recent judicial pronouncements, but if the Court should back off a bit you shouldn’t act like it’s some type of five-alarm fire.
I am aware that the Arizona case is really about preemption. I do not agree with the notion that the federal government may decline to enforce a law, and thus I don’t agree that Arizona’s law preempted federal law. I confess that I have only skimmed both the Kennedy opinion and the Scalia dissent (I have skimmed through them though), and I intend to read both in full soon, but my view will not be changed by reading either.
“[B]ut my view will not be changed by reading either.”
Then why bother?
CRS, your view that the federal government cannot refuse to enforce a law (based on what provision of the Constitution, anyway?) is at odds with Gibbons v. Ogden, wherein Chief Justice Marshall accepted the view that a government’s refusal to regulate in an area in which it has regulatory authority is an exercise of power equal in kind to the enactment of a regulation in that area. Of course, Marshall’s decisions are not sacrosanct — in fact, I’d argue that the originalist/strict constructionist school essentially opposes the heft of Marbury v. Madison — but it seems to me that you and Scalia have to address that principle head-on and stop eliding it with your worship of what sovereignty meant in the 1750s. (That’s where Scalia lovingly starts his analysis. You’ll not be surprised to hear that it does not find its way out of that era, his survey of the constitutional legitimacy of racial apartheid notwithstanding.)
Madison:
“I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.”
The “no harm” amendment.
The NPC Clause is an enumerated power, btw.
CRS, you literally are reading challenged. You write:
>>
as a practical matter the expansive Commerce Clause and the Tenth Amendment are diametrically opposition to one another.
< <
No they are not. The Commerce Clause does what it does. It covers the ground it covers, and we have to read it, construe it, and decide what that is. That being done, the analysis is over. Either Congress has authority or it doesn't. If it does, then the 10th Amendment has nothing to do with anything. If it doesn't, then the 10th Amendment isn't needed to conclude Congress overstepped its bounds.
If you can't see that, then you did not learn to "think like a lawyer" in law school. I can't say it any nicer.
You also wrote:
>>
I do not agree with the notion that the federal government may decline to enforce a law
<<
Executive discretion (prosecutorial discretion) is deeply imbedded in our system. A good idea? Probably, actually. We can debate it, I suppose. But your disagreement runs against centuries of law.
I’m having trouble being patient, but I’m going to explain this really slowly so those who are reading challenged have a chance to understand. Here is what the 10th 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.
<<
I’m going to suggest that any reasonable reader would conclude that if a “power” was “delegated to the United States by the Constitution” then the 10th Amendment doesn’t pertain.
So.
If the commerce clause empowers a particular legislation, then the 10th Amendment by its terms does not apply. That power is “delegated to the United States.”
So.
The only question is whether the commerce clause empowers the legislation. If it does, end of discussion. 10th Amendment doesn’t apply. If the commerce clause doesn’t, congress has no power to act. No need to invoke the 10th amendment.
I’m going to repeat what I keep saying; Talking about the 10th Amendment in this context demonstrates a specific kind of cluelessness.
Part of what has me being so harsh here is that I think dialogue is important, but that I think it is impossible when folks fail to understand what they are saying. The question isn’t what the 10th Amend says. it’s what the commerce clause says.
Tom: the 10th Amendment has, in recent years, been “discovered” by a few otherwise uninformed souls … like they turned over a stone no one else ever noticed and “found” a magnificent uncut diamond. This diamond has become their talisman … they wear it much as a Comanche warrior might have worn a bison skull and horns to ward off evil spirits and to vanquish their opposition. I was going to say that they wear the talisman as Wonder Woman wore her magic bracelets: to shield incoming bullets, but that would be according the 10th Amendmenters more glamor than they deserve. You might as well debate with an ex-spouse … or Antonin Scalia.
NMC, say it as slowly as you like, then consider this.
The 10th Amendment assumes that there ARE powers that do not belong to the federal government (if you disagree with this notion, then we’re not proceeding further in the discussion). When you take the expansive view of the Commerce Clause that some do, and that the Court has (like that it prohibits the growing of marijuana in your own house for your own use), then you run the risk of having the Commerce Clause encompass everything imaginable. When that happens, there are no longer any powers left that are reserved to the States, thus making the 10th Amendment meaningless.
Those that speak about the 10th Amendment do so because we make the assumption that Constitutional clauses and amendments mean something. We assume that the Commerce Clause leaves room for some powers to not be “delegated to teh United States” and, thus, “reserved to the States.” When you take an overly expansive view of the Commerce Clause, you don’t do this and you, in effect, say that the 10th Amendment doesn’t mean shit.
But yes, you’re right that the 10th Amendment does not enter into the legal analysis of Commerce Clause cases. However, I submit that the reasoning it represents – that some powers are for the States and some are for the federal government – should inform the process.
then you run the risk of having the Commerce Clause encompass everything imaginable
But that’s false. The Commerce Clause is limited, for instance, by the First Amendment. And “running the risk” is not a basis
… I would qualify NMC’s statement that it’s only about the Commerce Clause; NPC too. But in fact, it turns out it’s REALLY about the taxing power.
I’ve only just started to go through the Healthcare opinion, but this stood out in one of the first paragraphas:
“In our federal system, the National Government possesses
only limited powers; the States and the people retain the remainder.”
That sounds strangely familiar.
First Amendment – reserved to “the people.”
In my opinion, it’s really about John Roberts not wanting his legacy defined by the perception of a nakedly partisan invalidation of the ACA. And he should worry about that. These people are, for all their pretensions, political actors.
One wonders if the conservatives who conceived and championed the individual mandate for, oh, 15 years or so, including Mr. Romney, are secretly relieved. I’d say not, since they’ve missed a luscious chance at a perceived humiliation for the president, their raison d’etre.
Is the Tenth Amendment good for anything now?
I’m with you on this one, PB
The 10th Amendment never *was* good for anything.
See that Madison quote above.
“The 10th Amendment never *was* good for anything.”
Well, Roberts and the dissenters both referenced it in their analysis. So a majority of the Supreme Court seems to think it has some value.
NMC,
I would point you to the Garcia minimum wage ruling, where it was clearly a case of Commerce Clause versus the 10th Amendment. The Court had ruled 10 years before in the League of Cities case that the 10th Amendment made state and municipal governments not subject to minimum wage laws. So a more expansive reading of the Commerce Clause essentially trims states’ 10th Amendment rights.
Likewise, U.S. v. Lopez implicitly recognizes that an expansive Commerce Clause has the power to completely eliminate the 10th Amendment. For that reason the Court overturned a federal law imposing penalties for having guns within a certain distance of schools. The Court ruled that Congress had overstepped its authority.
We the Commerce Clause to be used as it was originally intended, namely to regulate actual commerce and not as a catch-all to permit any congressional law-making, then I would agree with you that there is no connection between the Commerce Clause and the 10th Amendment. But many people, including you in my opinion, see it as providing authority for virtually unlimited Congressional authority, and to that end I see the two working in opposition to each other.
You say that you are surprised that I see any connection between the two. But the Court does. I’m surprised that you don’t see it.
Well, if the Tenth Amendment is worthless, it should be repealed.
CRS:
Quote me the language in Lopez that says it’s got anything to do with the 10th Amendment.
[I pause a moment. Then another moment.]
Ok. We can agree it doesn’t say anything about the 10th Amend, right? What it says is that someone carrying a pistol near a school is not doing something “in commerce” and therefore not subject to regulation via the commerce clause, right? WIthout reference to the 10th Amend.
As you noted, the other case you want to talk about has been squarely overruled. When it was overruled, Justice Blackmon only mentions the 10th Amend in stating the question as framed by the cert petition. In dissent, Rehnquist (who wrote Usery) does not mention the amendment, but Powell in dissent does:
“today’s decision effectively reduces the Tenth Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause. “
“I’m going to repeat what I keep saying; Talking about the 10th Amendment in this context demonstrates a specific kind of cluelessness.
Part of what has me being so harsh here is that I think dialogue is important, but that I think it is impossible when folks fail to understand what they are saying. The question isn’t what the 10th Amend says. it’s what the commerce clause says.”
NMC, any desire to revisit these sentiments, considering five justices of the Supreme Court find the 10th Amendment pertinent when discussing Commerce Clause questions?
Well, uh, what Stephen said!
The language in Lopez may not have mentioned the 10th Amendment, but it certainly did not stop lots of people from noting that it was there. For example, a Google search turns up a Pepperdine Law Review Note entitled “United States v. Lopez: Artificial Respiration for the Tenth Amendment.” Numerous others see it the same way, but I respect that you don’t.
Oh, and congratulations on your party’s win today at the Court. I hope we can yet smack you down at the ballot box in November, though!
Tenth Amendment “jurisprudence” = tin foil hat!
I was taught the Tenth Amendment was a dead duck. That some occultists are trying to bring the dead duck to life does not make it any less dead. That any number of Supreme Court Justices find it “pertinent” shows just how far the Court has wandered into the intellectually dishonest by building on the intellectual dishonesty of Eleventh Amendment jurisprudence. I expect this madness shall pass in 20-30 years.
Stephen, show me where in the court’s analysis (majority or dissent) a principle originating in the 10th Amendment enters into the logic of any opinion. Sure, there’s a passing reference, but that passing reference makes Justice Douglas’s “penumbras” look tangible, concrete, and explicitly supported by the text.
I can tell you exactly how the logic creating the “penumbra” comment works. You can’t tell me (no one has, anywhere in this thread) what principle originating in the 10th Amendment has to do with this case. The question (as I keep saying) for both sides of the debate is this: Does the commerce clause give the Congress the power to do this? If it does, then Congress can act, no need to invoke the 10th Amendment. If it doesn’t, then Congress can’t act, no need to invoke the 10th Amendment. On this outing, 5 votes said “can’t act,” and that was that. 4 votes disagreed. But the question was purely the reach of the commerce clause.
Tenth Amendment advocates use it as shorthand for “State’s Rights,” which really translates to “defiance of any outside authority that demands change from the status quo circa 1858.” To me, the crux of the Tenth Amendment is reservation of uncommitted rights to “the people.”
Despite what the Tenther’s claim, they really have no desire for the states to have all residual power not delegated to the federal government. That’s just substituting one jackboot for another one even closer to home, without hope of relief.
As a lifelong Mississippian, I trust the decisions of Washington over almost anything our legislature and governors have done in my 60+ years of life. We were last in the nation when I was born and we’re even further below the median than we were then in almost every category from personal income to infant and maternal mortality to life expectancy. The only thing that hasn’t changed is that the same class of dumb sons of bitches is still in charge.
And we, the people, keep electing them.
somslawyer, for the win. An eloquent and incisive post.
The only thing that hasn’t changed is that the same class of dumb sons of bitches is still in charge.
The exception being the city fathers of Jackson and the Hinds county board of supervisors, therefore soms’s argument is invalid. Thanks for playing.
WTBAL. It certainly appears to me that, “the same class of dumb sons of bitches is still in charge” is broad and inclusive enough to allow membership to any person. SOMS was recognizing that some of us don’t discriminate in our use of the term; regardless of race, ethnicity, color, creed, national origin, religious affilitation, political party, educational backgroud, age, gender, sexual orientation or veteran status.
The sobs in charge are just that, sobs, for not really improving Mississippi in ANYTHING for a long time, if ever. And we continue to tolerate it.
I was speaking of the STATE government level, since that’s where the power of the State resides. I also didn’t segregate my argument on racial grounds. I don’t think the color of one’s skin determines whether he is dumb or a son of a bitch. Hinds County and the City of Jackson are problems crying out for a solution, and it’s not due to racial preferences in voting (see, e.g., Barbara Dunn, Circuit Clerk). It’s due to people electing dumb sons of bitches to office.
So, WTBAL, your supposed counter was wrong. But keep trying.
Until the people of this state decide that they need to elect the brightest, best qualified person to every office, regardless of race or party – people willing to work together to solve the problems we face as a state – we’ll continue to be stuck with the lowest common denominator. And we’ll stay stuck at the bottom until they do.