Comment by dhd415
7 years ago
It's because of selective incorporation. (https://www.law.cornell.edu/wex/incorporation_doctrine). For example, the Second Amendment wasn't incorporated against the states until 2010 in McDonald v. City of Chicago.
7 years ago
It's because of selective incorporation. (https://www.law.cornell.edu/wex/incorporation_doctrine). For example, the Second Amendment wasn't incorporated against the states until 2010 in McDonald v. City of Chicago.
I can't for the life of me understand why the 10th amendment does not have a more prominent place in the American political system than it does. It is because government would be hamstrung if they respected it? It would seem to the layman that is the entire reason it exists!
Technically you're right. The 10th amendment has been largely neutered by selective incorporation, a very broad reading of the commerce clause, and other decisions.
That said, the world in which the 10th amendment is very strong and the fourteenth is weak is much worse for civil rights. Suddenly the states can declare official support for Christianity, ban dissenting speech, shut down newspapers they dislike, search you or even imprison you without a warrant, or quarter troops in your house.
"Quartering Troops" sounds archaic, but every now and then lawmakers propose it, like forcing private airlines to provide discounted or free arrangements for servicemen traveling. (As opposed to negotiating rates with them, or soliciting competitive bids). These proposals usually don't get very far, but it shows you that the Government still thinks it's OK to _force_ a citizen or private business to give free services or accommodations to soldiers.
(For example, see https://www.huffingtonpost.com/2011/06/08/congressman-bruce-... and https://www.huffingtonpost.com/2011/06/08/delta-troops-afgha... The Government should reimburse him, and try to negotiate the best rates from the Airlines. I'd be all for the Airlines offering a discount, but they shouldn't be forced to.)
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At the margin, people would begin moving to different states.
The current system has some pros (which you enumerate), but also some massive cons in the form of high exit costs, since you're exiting the entire federal apparatus rather than the government of a single state.
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It cuts both ways. One central government squishing civil rights or 50 states each having to squish civil rights? I do tend to agree to the supremacy of the bill of rights which is supposed to be just a restatement of natural rights and is a hands off to government in general.
Because the 10th provides little that is particularly concrete, and because the prevailing interpretation of other clauses has been fairly broad. That is to say, by and large the federal government has been acting withing the powers granted by the constitution, but at the moment those powers are held to be quite broad. Interstate commerce clause, in particular, means that the government can do quite a bit to regulate, so long as it is in some manner related to interstate trade. I don't personally agree with these interpretations, but they are the prevailing ones.
Likewise, incorporation doctrine is derived from the constitution. So anything that is considered barred by incorporation is therefore "prohibited by it[the constitution] to the States".
It has, in the past, been called "a truism" by the courts, and that's not a totally unreasonable read. Still, there issue has come up in court from time to time, and the wikipedia page ( https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... ) lists some examples.
Interstate commerce has been interpreted very broadly... So broadly that consuming things you grew yourself is under subject of interstate commerce.
https://en.wikipedia.org/wiki/Gonzales_v._Raich
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"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."
Generally, after ratification the 10th Amendment was treated as a truism: essentially a useless amendment that simply confirmed the federal system of government. The words of the man who drafted the amendment, and who opposed it's inclusion:
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.
For much of the 20th Century, the justification for most federal laws infringing on state activity has been the Commerce Clause, which was extremely broadly written.
Most recently, the 10th Amendment has been interpreted to mean the federal government cannot force the states to enforce federal laws (see, e.g., Printz and the recently decided Murphy).
>the Commerce Clause, which was extremely broadly written.
Not really, however in Wickard the Supreme Court simply ignored the entire words written, any context, and any rational thought processes around the words written to come up with a massive expansion of federal power that basic renders the enumeration clause pointless, and granting the federal government almost unlimited authority over everything
>>>>[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Seems narrow and precise to me, how 9 supposedly intelligent people came away reading in to the passage "Yes Congress can regulate how much wheat a man grows on his own farm for his own consumption" defy's all logic and reason
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Sorry, could you explain what the 10th amendment is? (The Wikipedia page has some assumed knowledge that I do not have as I'm not American.)
The basic reading would be, that unless the Constitution defines a power of the federal government, that power resides with the states and citizens. As mentioned in the Wikipedia article, its addition was basically CYA, as it was and is true regardless of its enshrining within the Constitution. As such, its existence does not really mean anything beyond what the Constitution already meant. It just provides a handy shortcut to say, "the federal government should not have had the power to enforce this on the states."
This is actually a rather important principle, and most people don't realize how many federal laws that work at the state level use funding carrots rather than criminal-punishment sticks for enforcement. For instance, the penalty for not following the unpopular and eventually dismantled "No Child Left Behind Act" was that your state would not receive federal education funding.
> The Act required states to develop assessments in basic skills. To receive federal school funding, states had to give these assessments to all students at select grade levels.
https://en.wikipedia.org/wiki/No_Child_Left_Behind_Act
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It means that anything not expressly prohibited in the constitution is up to the states to decide.
What most people don't get (even in the USA) is that the constitution doesn't grant powers to people. It only restricts the government from acting on the people. People were born with the right to speak freely and defend themselves as they see fit - the government can't change that for example.
So the 10th says if it isn't mentioned it is a power that belongs to the people or the states. For example, weed isn't mentioned in the constitution so technically it's a 10th issue for states to decide - HOWEVER - this is thing called the commerce clause...
Commerce clause means that if something moves from state to state, that sure does seem like a Federal matter. So it gets complicated. But... In the end, some states have legalized in the state in part referring to 10A, it's their right to do - but if you are in a "weed state" and light up at a DEA office - expect to be arrested and charged with a federal crime.
* The thing about commerce clause is that almost everything can move from state to state. So that's a little bit of an annoying topic depending on the issue and which side you're on. For example, I can manufacture a gun in my state that isn't legal in another state, commerce clause has been tried to limit 2A.
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The full text reads:
>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.
What, exactly, this means has been a matter of ongoing debate for much of the amendment's existence. Some of the more fervent states' rights advocates have considered it a hard check on the power of the federal government, while at other times it has been considered little more than a truism.
My own personal read on it is that it defines the nature of state and federal lawmaking power, from the perspective of the constitution. Federal law is strict. The constitution allows it certain specific powers and subjects it is allowed to govern, and it must stay within those. State laws, from a federal perspective, are permissive. The constitution bars certain powers from the states, but anything not banned they are allowed to regulate.
In practice, this means less than it might, because the constitution's powers allow the federal government a lot of room to regulate and govern. At the state level, incorporation doctrine also limits their powers a fair bit.
In terms of judicial history, the 10th is one of the less significant parts of the Bill of Rights, becoming an issue in court far less than, say, the First Amendment (freedom of speech/press/religion) or Fourth (limits to search and seizure/ warrant requirements). On the other hand, it has come up more often than the Third (forced quartering of troops during times of peace).
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The Supremacy clause of the constitution means that state law can’t be contrary to the constitution. So if the 8th amendment applies in this case, the state law is overruled.
The article says it's the due process clause (the 14th Amendment) which extends Constitutional law to the states.
Thanks for this link! I'm learning a lot that I never really even knew to know about.
It's a mess. It's probably the best mess they could put together - but it's still a mess.
Those are the cases that Supreme Court likes to take on.
>For example, the Second Amendment wasn't incorporated against the states until 2010 in McDonald v. City of Chicago.
No. The second amendment was always incorporated "against" (for) the states.
McDonald only clarified what was always the reality. That a state can not preempt federal laws with keeping and barring arms for self defense. Notice that last part, the SPECIFIC INTENTION of the case is for self defense.
Your own link makes note that selective incorporation doesn't apply to the bill of rights. Well, it does but not objectively. It's pretty ridiculous to make the assertion 2010's McDonald and not 2008's Hellar the "the 2A law". But that was your goal to find something that fit an antigun narrative.
"Your own link makes note that selective incorporation doesn't apply to the bill of rights."
No, it doesn't. In fact, it clearly states the opposite noting that the 3rd, 7th, 9th and 10th amendments in the Bill of Rights have not been incorporated.
On that page you can even find a table noting when each amendment in the Bill of Rights was incorporated. It quite clearly tells you that the 2nd amendment was incorporated in 2010 in McDonald v. City of Chicago.
Nothing you said in this comment is correct.
Oh I agree, the table on your site says that. It's extremely wrong. Would have been much less obvious if they had selected the more important SCOTUS case just 2 years earlier.
By pushing the agenda you implied with "2A against the states" you showed your cards to not care about the facts.
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You are incorrect, Sir. Grandparent is correct. May I recommend that you re-read the link? It says exactly the opposite of what you claim.
Someone at Cornell wrote that 2A was incorporated then, but that's ridiculous as if ANYTHING it would have been incorporated federally during 2008's Heller vs DC. If someone attaches the name of a university to something do you automatically take it as fact?
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