# F\*\*\* the Tenth Amendment? **URL:** \ **Category:** Great Debates\ **Created:** [July 7, 2001, 2:46pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588 "2001-07-07T14:46:16Z")\ **Posts on this page:** 19\ **Page:** 2
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [July 7, 2001, 7:08pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/21 "2001-07-07T19:08:21Z")
The courts can’t overturn 60 years worth of precedent? I submit to you McIntyre v Balentine, from the Supreme Court of Tenn, 1992. Since the begining of their court system they’ve had a (with few exceptions) contributory negligence system. That means that if the plaintiff was negligent, even if the defendant was even more negligent, the plaintiff could not recover. > [@](#): > > It is time to abandon the outmoded and unjust common law doctrine of contributory negligences and adopt in its place a system of comparative fault. Justice simply will not permit our continued adherence to a rule that, in the face of a judicial determination that others bear primary responsibility, nevertheless completely denies injured litigants recompense for their damages > [@](#): > > We recognize that today’s decision affects numerous legal principles surrounding tort litigation… Basically, the court recognized not only that they were overturning centuries’ worth of precedent, but that they were pretty much screwing up all tort litigation in progress. But they did it because they felt that it was the right thing to do. I, for one, agree with them. Clarence Thomas obviously believes that this, too, is the right thing to do. I don’t have an opinion one way or the other. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 7, 2001, 7:43pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/22 "2001-07-07T19:43:51Z")
**december** : [_Griswold v. Connecticut_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case=us=381=479) wasn’t a commerce clause case at all, since it didn’t involve the powers of Congress. Rather, the Court struck down Connecticut’s ban on contraceptives under the Due Process clause. Specifically, the Court invoked a long string of “substantive due process” cases that held the states couln’t interfere in individuals’ rights to bear and raise children as they wish. The idea behind substantive due process is that the Due Process clause not only prevents the government from railroading people procedurally, but also from railroading them through laws that are substantively wrong. It’s the source of many of the Court’s most controversial rulings, and even I tend to think they’ve gone overboard in the SDP analysis, but there’s still a textual basis there. Interestingly, if Congress _had_ passed a law requiring states to allow sales of contraceptives, it almost certainly could have done so under the Commerce Clause. Contraceptives, after all, move through interstate commerce, and thus can be regulated by Congress. Nifty, huh? (BTW, I always wondered why it is that fans of the 10th Amendment invariably focus on the reservation of rights “to the States respectively,” rather than the immediately following “or to the people.” Personally, I’d much rather have fit the Court’s substantive due process cases under the “to the people” part of the 10th Amendment instead of the Due Process clause. Oh well, guess it’s a little late now.) > [@](#): > > \*Originally posted by december \* > Nobody really wants to be guided by what the original meaning really was. If we did, we could look at the behavior of the people who wrote the Constitution during the first few decades of the country’s existence. They treated the Constitution as creating a very limited federal government. True enough, but the important question is what they thought Congress _could_ regulate, not what they actually regulated. So I’d say that looking to stuff they regulated is a good indication they thought Congress had such power, but that declining to regulate something doesn’t tell us whether Congress could regulate it. **Enderw24** : Sure, courts _can_ overturn precedent. They even do so on occasion, as _McIntyre_ demonstrates. That doesn’t mean it’s a good idea. ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [July 9, 2001, 2:52pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/23 "2001-07-09T14:52:18Z")
minty green wrote: > [@](#): > > In case anyone wants to read the whole case that **december** is quoting in the OP, it’s here: [_U.S. v. Lopez_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us=000=U10287), 514 U.S. 549 (1995). The link quoted above doesn’t work. Try: [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=u10287](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=u10287) instead. > [@](#): > > For the non-lawyers out there, it’s an absolutely pivotal case regarding the scope of Congress’ power to create laws. Lopez got busted for possessing a gun near a school, which violated the federal Gun-Free School Zones Act. The Supreme Court reversed the conviction because it concluded that Congress did not have the power, under the Interstate Commerce clause (Article I, section 8 of the Constitution) to regulate the possession of guns in such circumstances. The law that was rendered Unconstitutional by _U.S. v. Lopez_ was [18 U.S.C. 922(q)](http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=922). It should be noted, however, that when this case was handed down, Congress quickly passed a “new improved” version of 18 U.S.C. 922(q) in which every major occurence of the words: [li] “a firearm”[/li] … was replaced with: [li] “a firearm that has moved in or that otherwise affects interstate or foreign commerce”[/li]… thereby circumventing _U.S. v. Lopez_. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 9, 2001, 3:19pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/24 "2001-07-09T15:19:02Z")
Ha! Didn’t know about that little fix Congress threw into the statute after _Lopez_, tracer. Thanks, and also for fixing my link. I just looked up the amended statute, and it appears Congress also added the findings section that the _Lopez_ majority complained was missing. In addition, at least one federal appeals court (the Eighth Circuit) has determined the amended statute is constitutional. No surprise there, since the courts have long acknowledged Congress has the power to regulate pretty much anything that actually flows through interstate commerce. Of course, now instead of an unconstitutional law, we’re left with a merely stupid law. I do wish Congress would get out of the business of federalizing as much local crime as possible. Unfortunately, when you’ve got a bunch of politicians in national office declaring that they’re gonna get tough on crime, the only way they can really do so is by passing laws that get the federal government involved. I hasten to add, though, that I oppose this trend because I think it is bad _policy_, not because I think Congress is generally exceeding its constitutional authority. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 9, 2001, 3:26pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/25 "2001-07-09T15:26:03Z")
BTW, now that someone’s bumped the thread, I wanted to point out that I was a bit confused in my comments above about substantive due process vs. the 10th Amendment’s “or to the people” language. What I was really thinking of as a source of individual rights was the 9th Amendment: “The Enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Unfortunately, the Supreme Court has basically rendered the 9th Amendment a nullity. ---
**Author:** ![Rmat](https://avatars.discourse-cdn.com/v4/letter/r/85e7bf/32.png) [@Rmat](https://boards.straightdope.com/u/Rmat)\ **Post date:** [July 10, 2001, 3:01am UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/26 "2001-07-10T03:01:05Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*[_Brown v. Board of Education_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=347&page=483) did not overturn [_Plessy v. Ferguson_](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=163&invol=537). The Court in _Brown_ did what Thomas was incapable of doing in _Lopez_: It distinguished the precedent \*\* Brown most certainly did not “distinguish” Plessy, and the exceprt quoted above does not even remotely suggest otherwise. Furthermore, I am well aware of the distinction between invalidating a statute and overruling precedent. Neither is a greater or lesser virtue or vice than the other. There are statutes that “deserve” to be invalidated and those that do not, just as there are precedents that “deserve” to be overruled and those that do not. One cannot say that Thomas’s concurrence in Lopez “blows as analysis” merely because he sought to discredit, rather than distinguish, “60 years of predcedent.” Not all precedent “deserves” to be “distinguished” (and assuredly Plessy would be one that did not); rather, they may “deserve” to be overruled. Stare decisis (somewhat like the rule that legislative enactments are presumed to be constitutional) is a venerable principle–but it is not an ineluctable rule. Trash Thomas if you like ON THE MERITS of his opinion–but not on his mere willingness to discredit authorities he deemed worthy of such treatment (unless, of course, you are prepared to show that those authorities were correct). ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 10, 2001, 4:30am UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/27 "2001-07-10T04:30:52Z")
Uh, did I somehow fail to trash Thomas “ON THE MERITS” of his opinion? I’ve identified his failure in _Lopez_ as an utter disregard of precedent. Sorry, but a cite to dicta in _Laughlin Steel_ doesn’t cut it when there are at least a dozen Supreme Court cases interpreting the Commerce Clause that go the other way. Thomas was so selective in his quoting in that opinion that it borders on dishonesty. Mayhap that explains why he couldn’t even get such an ardent Originalist as Justice Scalia to join him in that opinion? As for claiming that invalidating a statute on constitutional grounds is no better than failing to follow precedent . . . well, everyone’s entitled to an opinion, of course. But ever since _Marbury_ there’s only one body that’s charged with interpreting the Constitution in this country, and it darned sure ain’t the Nebraska legislature. Legislatures, by their nature, are entiled, even expected, to change their minds on policy every time they take a new vote. I happen to think that the Constitution, the very blueprint of our nation, needs a hell of a lot more stability than 535 snot-nosed politicians in Congress are likely to provide. Which leads me to my challenge to you, **Rmat**. I ask you to demonstrate where _Brown_ reverses _Plessy_. Let me give you a running start by quoting, in full, every single point where _Brown_ says anything at all about _Plessy_. > [@](#): > > This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. Nope, no overruling of _Plessy_ there, although it’s pretty clear that the meaning of _Plessy_ is in issue. > [@](#): > > In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of “separate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education. Hmmm, _Plessy_ is a Fouteenth Amendment case involving “separate but equal” in transportation. But _Brown_ is a separate-but-equal case involving public education. Gee, why would the Court mention the transportation/education distinction at all if they were passing on the entirety of separate-but-equal doctrine? > [@](#): > > And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education. Wow, they reserved judgment on whether _Plessy_ applies to public education in a previous case! > [@](#): > > In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Oh my, the Court says there’s a _difference_ between 1896 and 1954. Could they be “distinguishing” the two cases? > [@](#): > > Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [of actual harm to black children from segregation in public schools] is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. Gasp! There was different evidence in this case. Evidence that shows “separate” isn’t “equal” in education! I guess that means a plaintiff can show “separate” isn’t constitutional if it’s not really “equal,” huh? Quite a difference from _Plessy_, where the court decided that “equal” took care of any constitutional problems with “separate.” I’m not crazy enough to argue that _Plessy_ means much of anything in the wake of _Brown_. By recognizing that separate can be inherently unequal, the Court essentially killed that whole approach to race and the Constitution. But the Court most certainly did not overrule _Plessy_, which still stands for the proposition that separate and _truly_ equal (throroughly unlikely as that is), at least within the realm of transportation, is constitutional.\* \*Constitutional, yes. But still illegal by federal statute thanks to the Civil Righst Act and its many amendments. ---
**Author:** ![Rmat](https://avatars.discourse-cdn.com/v4/letter/r/85e7bf/32.png) [@Rmat](https://boards.straightdope.com/u/Rmat)\ **Post date:** [July 10, 2001, 5:19am UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/28 "2001-07-10T05:19:28Z")
This Plessy/Brown thing is getting silly. That Brown overrruled Plessy is beyong serious debate. Do you have access to Shepards Service or WestLaw Autocite or some other equivalent service? I guarantee you that it reports Brown as “OVERRULING” ruling PLessy, and that there are no fewer that a dozen post-Brown cases explicitly recognizing that fact, and scores of hornbooks and legal treatises that also characterize it in just those terms. Anyway, this is such a small point, and one that I’m happy to let it go if you are. If, however, you wish to insist that Brown did not overrule Brown and you are unwilling or unable to do the requisite research, I will – as a very special favor for you – do it myself and report the results here. But my offer stands: I’ll drop it if you will, and you can privately cling to your belief that Plessy was never overruled in Brown. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 10, 2001, 12:31pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/29 "2001-07-10T12:31:52Z")
::shrug:: ---
**Author:** ![Rmat](https://avatars.discourse-cdn.com/v4/letter/r/85e7bf/32.png) [@Rmat](https://boards.straightdope.com/u/Rmat)\ **Post date:** [July 10, 2001, 2:11pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/30 "2001-07-10T14:11:38Z")
And now back to what matters… Lopez is just one of a series of cases decided by the USSC in recent terms that reinvigorates federalist doctrine to a degree perhaps not seen since our nation’s founding. Throughout much of the past century in particular, it was the prevailing view among intellectual elitists (and this, in turn, a good segment of the federal judiciary) that there was no aspect of governance that could not be best performed nationally. The problem, of course, is that this point of view – whatever its validity in strictly operational terms – is wholly at odds with the model devised by the Founding Fathers for divided governance. Finally, we are no witnessing some restoration of the orginal model. I applaud it. Not that the states will govern with unfailing brilliance. (Which is also not that the feds have either.) But the Founding Fathers’ preference for divided governance was rooted only partly in a concern for vesting different policy choices in the hands of the most “competent” decisionmaker. Equally important was the concern was that power not be concentrated ANYWHERE. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 10, 2001, 2:35pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/31 "2001-07-10T14:35:47Z")
> [@](#): > > Equally important was the concern was that power not be concentrated ANYWHERE. Three cheers for the Articles of Confederation! Hip hip, hooray! Like it or not, the founders were creating a system of government that concentrated much more power in a centralized federal government. Of course, that power has some limits, as _Lopez_ demonstrates. But if the founders wanted to avoid all concentrations of power, why would they have written a constitution that gives the federal government unfettered power over everything **erislover** listed in the second post to this thread, plus a myriad of other exclusive powers? Whether or not the federal government exercises those powers depends on who the voters send to D.C. Nevertheless, there is no question that the federal government does have those powers under our Constitution, and that the individual states by and large play anything more than a supporting role at the whim of the federal government. And I guess that’s really the answer to **december** ’s question about what should limit the federal government today. The Constitution _does_ give the feds huge amounts of power. Whether or not they exercise it is a function of who we elect to serve in Washington. Welcome to our democratic republic! ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [July 10, 2001, 3:32pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/32 "2001-07-10T15:32:08Z")
I had written a long discussion concerning _Plessy_ and _Brown_, but the Web ate it, so to sum up: **minty** and **rmat** , you are both right. The facts and issues addressed in _Plessy_ dealt solely with transportation, and _Brown_ did not touch that. Indeed, as demonstrated by the Freedom Riders, for example, transportation, at least in the South, remained segregated after _Brown_. However, _Brown_ invalidated _Plessy’s_ rationale - that seperate could be considered equal without a factual investigation into whether the particular public facility was in fact equal. And, of course, any such investigation would reveal that seperate is not and cannot be equal. As for overruling precedent itself, Justice O’Connor laid out what I think is a very good rule in _Casey_. In _Casey_, the Supremes were invited to overrule _Roe_. O’Connor declined, noting that “[n]o change in _Roe’s_ factual underpinning has left its central holding obsolete, and none supports an argument for its overruling.” O’Connor went on to explain that in the cases where the Supremes had overruled earlier precedent, “the facts or our understanding of the facts” had changed. _Casey_, 505 U.S. 833, 835-36. This is a good rule - precedent should stand until and unless its factual predicate has been demonstrated to be invalid. **minty** , I think your reading of Art. I, Sec. 8 is a bit off. The Constitution does give a large number of powers to the Congress, but it wasn’t expected that these powers would be all that important. It’s the law of unintended consequences - they set up the rules in an era of an agricultural economy with no plans to establish a standing army. The same circumstances don’t apply today, but that doesn’t change the powers invested in Congress, and it can strongly be argued that the fact that these powers invested in Congress allowed for the conditions that exist today - heavy commercial activity, general prosperity, and a strong military. Sua ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 10, 2001, 4:12pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/33 "2001-07-10T16:12:12Z")
Yeah, **Sua** , you’re probably right that the changing economic conditions of the USA have led to greater exercise of power on the part of Congress. After all, giving Congress the power to regulate interstate commerce in the 1780’s didn’t necessarily give it a great deal of actual power, since there was comparatively little interstate commerce going on. A couple centuries later, though, there’s a whole lot of interstate commerce, and all of it can be regulated thanks to that same Interstate Commerce clause. Still, the guys who wrote the Constitution were doing so with the goal of expanding federal powers, as the weak federal government under the Articles had led to all kinds of problems. The taxing power and the regulation of interstate commerce were especially crucial to their idea of how the new federal government should function, which is why they created such broad powers. That the Congress of today has exercised those powers far more than the founders would have preferred seems pretty clear, but that by no means indicates Congress has exceeded its authority in doing so. ---
**Author:** ![Rmat](https://avatars.discourse-cdn.com/v4/letter/r/85e7bf/32.png) [@Rmat](https://boards.straightdope.com/u/Rmat)\ **Post date:** [July 10, 2001, 5:18pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/34 "2001-07-10T17:18:36Z")
> [@](#): > > \*Originally posted by minty green \* > \*\* That the Congress of today has exercised [its enumerated] powers far more than the founders would have preferred seems pretty clear, but that by no means indicates Congress has exceeded its authority in doing so. \*\* It most certainly does mean that if one assumes, as we must, that the Founders gave their “preferences” prescriptive force in the Constitution. I confess I am somewhat baffled by the reference to the Articles of Confederation. Concentration of power is not an absolute condition, but one that exists in degrees. That national powers are more concentrated under the Constitution than they were under the Articles is beyond dispute, but that hardly establishes that the Constitution provides for no diffusion of power, or even very little diffusion of power (except in a relative sense) Indeed, as Lopez and other recent cases show, it provides for a good deal more diffusion than we have witnessed in the last two generations or so. Again, I applaud this, no so much because I think it will necessarily make the nation run more smoothly or equitably, but because it is faithful to the Founder’s vision–a vision with which we are “stuck” (and I don’t mean that pejoratively). ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 10, 2001, 5:33pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/35 "2001-07-10T17:33:44Z")
> [@](#): > > \*Originally posted by Rmat \* > It most certainly does mean that if one assumes, as we must, that the Founders gave their “preferences” prescriptive force in the Constitution. And thus did a conservative argue that we should read stuff into the Constiution that isn’t in its text. 😃 ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [July 10, 2001, 5:52pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/36 "2001-07-10T17:52:19Z")
I think that when courts overrule earlier cases, they frequently pretend that they are merely “distinguishing” those cases so as to pay homage to the principal of stare decisis. If anyone seriously believes that _Plessy v. Ferguson_ has not been overruled, I invite them to consider what would happen if the State of Louisiana passed a “Separate Car Act” today (with the blessing of Congress). Perhaps a better example is the so-called “Lochner Era,” in which the Supreme Court invalidated all kinds of minimum wage laws and similar laws on the basis of the constitution. I believe that one or more of those “Lochner” decisions have been explicitly overruled. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [July 10, 2001, 8:23pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/37 "2001-07-10T20:23:44Z")
> [@](#): > > \*Originally posted by Rmat \* > > > [@](#): > > > > \*Originally posted by minty green \* > > \*\* That the Congress of today has exercised [its enumerated] powers far more than the founders would have preferred seems pretty clear, but that by no means indicates Congress has exceeded its authority in doing so. \*\* > > It most certainly does mean that if one assumes, as we must, that the Founders gave their “preferences” prescriptive force in the Constitution. Good lord, **Rmat** , that’s a mighty stretch. The beauty of the Constitution is that the FFs realized that things may change, and accounted for them. Let’s look at the source of so much dispute, the Commerce Clause. As I noted, the primary reason the FFs included the Commerce Clause was fear that the seaboard States would impose tariffs on goods transported from the inland states for export. Thus, they inserted the Commerce Clause (and, for the same reason, placed all navigable waterways of the U.S. under the control of Congress). However, if **all** the FFs wanted to do was prevent internal tariffs, then the Commerce Clause would have read “No State shall impose tariffs or excise taxes on goods and commerce imported to or exported from that State.” (Course, they would have made it sound more archaic. ;)) They did not take this option. Instead, the FFs gave Congress exclusive jurisdiction to regulate interstate and foreign commerce. Their “original intent” was to allow Congress the exclusive authority to deal with other issues relating to interstate and foreign commerce not foreseen by the FFs. If you wish to determine the Original Intent of the FFs look to the language of the Constitution - **and think about what they could have written instead**. The FFs were very precise - almost everything in it is a much-debated compromise. Sua ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 10, 2001, 9:11pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/38 "2001-07-10T21:11:42Z")
> [@](#): > > \*Originally posted by SuaSponte \* > (Course, they would have made it sound more archaic. ;)) Nah, they just would have capitalized all the nouns. 🙂 ---
**Author:** ![Rmat](https://avatars.discourse-cdn.com/v4/letter/r/85e7bf/32.png) [@Rmat](https://boards.straightdope.com/u/Rmat)\ **Post date:** [July 10, 2001, 9:51pm UTC](https://boards.straightdope.com/t/f-the-tenth-amendment/71588/39 "2001-07-10T21:51:22Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\* The beauty of the Constitution is that the FFs realized that things may change, and accounted for them. > > Sua \*\* Well, sure. To a point. But whatever unforeseen circumstances the FF hoped their model would provide the means to resolve, any future ALTERING of the fundamental balance between state and national power was beyond their contemplation. Changing times arguably justify a little tinkering with constitutional doctrine on the margins; if that’s your idea of a “living constitution,” you’ll get no argument here. But the constitution of, say, William Brennan (for whom I have ample admiration, btw) would be unrecognizable to the FF. The one of today – post-Lopez, post-Seminole Tribe, etc. – would be somewhat more familiar [Previous page](https://boards.straightdope.com/t/f-the-tenth-amendment/71588.md?page=1)