Usually when the topic of states’ rights come up posters usually talk bad about it saying it’s only used when states want to do bad things like deny individuals their rights (or they complain that the 10th amendment says “powers” not “rights”).
So, just out of curiosity, if you dislike the 10th amendment, how do you interpret it? As for me, I like it just fine, but I’ll give my interpretation anyway, which is pretty much what the language says.
For example, while I believe that moving drugs across state lines falls under federal jurisdiction, I disagree with the Supreme Court that Billy growing weed in his basement affects interstate commerce and so can be regulated by the federal government.
In what way do you believe the 10th Amendment precludes expansive interpretation of Art I, Sec 8, Clause 3?
Who “dislikes” the 10th Amendment? What is to dislike about it? The issue isn’t the 10th Amendment; it’s what do people want to assert are rights reserved to the states?
I complain about states’ rights because they don’t exist. States have powers not rights. Individuals have rights, as against the government. The various levels of government have different powers.
Talking of states’ rights creates a false impression that something fundamental is at stake, rather than an agreed upon division of powers.
I Googled that and came up with Commerce Clause. Why couldn’t you just say that?
Anyway I don’t believe that growing pot for your own consumption contributes to interstate commerce. I agree with the dissenting opinions of O’Connor Thomas Listed here
That’s the question I’m asking. Whenever I’ve seen states rights brought up, I’ll see posters say things similar to “States rights are are used for things like justifying slavery and keeping gay people from marrying,” or other remarks that make it appear that some posters don’t like the idea, or even believe that it’s legitimate. Yet, the 10th amendment does exist, so I’m just curious as to what posters thinks it applied to. What does or what should be solely under the jurisdiction of the states and not the federal government?
Well I have some major issues with the application of federal authority, but they tend to be more concerned with individual rights than the state-federal division of powers.
I think the Commerce Clause is a legitimate tool for allowing federal regulation, though it can be excessive. Wickard v Filburn pulls me in both directions. The Court, as it is wont to do, came to what may seem to be an odd decision in recognition of the political environment at the time, and to prevent greater inroads being made. Under Wickard, I don’t think I agree that private growth of marijuana for personal use “exerts a substantial economic effect on interstate commerce,” either directly or indirectly. The problem is there is no easy definition of substantial economic effect.
Anyone making that argument about gay marriage would be severely misinformed, since Congress and the President oppose gay marriage, whereas state powers permit a small but increasing number of states to allow it.
Again, I’m asking you. What does the 10th Amendment have to do with that case? Neither dissent was in any way invoking the 10th Amendment. What I’m asking you is this: how would you assert that the 10th Amendment limits the ability of the federal government to regulate so-called “commerce among the states”?
Okay, this is more clear than your OP, I think. Still, in what way do you think that those who talk about “states’ rights” are invoking the 10th Amendment, other than as an indication that there may indeed by powers not granted to the federal government and prohibited to the states?
My favorite opinion on this subject comes from Union general Pap Thomas, whose Army of the Cumberland beat the Confederates at the Battle of Chattanooga.
After the battle Thomas ordered a military cemetery laid out on nearby Orchard Knob. According to Civil War historian Bruce Catton, the chaplain who was going to be in charge of burial services went to Thomas to ask if the dead should be laid out by states - Ohioans here, Hoosiers there, Kentuckians over yonder etc. Thomas thought about it and said “No - no, mix 'em up, mix ‘em up. I’m tired of states’ rights.”
I believe that growing marijuana for personal use should not be regulated by the federal government and that it should solely be governed by state law because the federal government isn’t given any authority by the constitution, nor are the states denied that authority. The majority of the supreme court felt differently, obviously, and used the interstate commerce clause, but I disagree.
I’m asking what the 10th amendment means to those who have a negative view of states rights.
The Tenth Amendment simply says: if we didn’t give it to the feds, and we didn’t tell the states they couldn’t have it, then it’s either with the states, or the people.
That has nothing to do with the expansive interpretation of the Commerce Clause, or the expansive interpretation of the Taxing and Spending Clause, etc. In arguing that the federal government’s power to regulate “commerce … among the several states” shouldn’t extend to, inter alia, regulating the growth and use of marijuana, you have to discuss the meaning of the words “commerce … among the several states.” The words of the Tenth Amendment are irrelevant to that discussion.
And you still aren’t establishing why a person who wants to talk about “states’ rights” would invoke the Tenth Amendment, or why a person who is opposed to the concept of “states’ rights” (though you’d have to explain what you mean by being opposed to that concept, since clearly there are powers which are preserved to the states, so it would be hard to argue they don’t have them) would care about the meaning of the Tenth Amendment at all. No one is going to be able to answer your question if you don’t first clarify how you see the two as intertwined.
This is probably the greatest, or most enduring, definition of being an American as I can imagine. We had just gone through years in which we had tried to define who WASN’T an American, and Thomas, both effectively and militarily, made them one.
Choose ANY example you like. It won’t make a difference.
Expansive reading of the clauses in Article I, Sec. 8 (powers of Congress) has nothing to do with interpretation of Amendment X. Amendment X is what keeps the federal government from asserting any NEW powers it hasn’t had previously. Indeed, one can assert that it is the existence of Amendment X that forces the courts to expand the “reach” of things like the Commerce Clause so that the federal government can modernize and address issues our nation wants it to address.
I’m missing the point too, then. I’d appreciate the education, not being a constitutional scholar. How can any “expansive reading” or interpretation that expands the boundaries of Federal power not be at least implicitly within a context that this does not run afoul of the tenth amendment? Why is it the federal government’s role or duty to address issues that the Constitution (the voice of the people) would otherwise prohibit them from doing? Not trying to be snarky or contrary–it just seems on point to me.
In general, to answer the OP, I believe that state’s rights, those defined by the tenth, are any rights the people of an individual state say they are (or aren’t), so long as the right in question does not compromise another’s right as defined by that state’s or the U.S. Constitution. Period. If the US Constitution is silent on a particular matter, it is completely up to the states to decide what “right” deserves protection or not. It needn’t serve my sense of justice, and often it does not. But I accept the fact that my state may decide certain “rights” deserve legal protection, and since the USC is silent on it, it’s up to the local jurisdiction.
Take the Commerce Clause as an example. Article I, Sec. 8, Clause 3 says that “Congress shall have the power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. So here is a “power” which is delegated to the United States. So it is not a power which, under the Tenth Amendment, is reserved to the States (or the People, don’t forget them!). But what does “Commerce … among the several States” mean? At one time, it might have meant only actual buying and selling of goods between the various states. Now, it may mean any situation where something CAN be bought and sold between the states. Is that an “expansion” of the power? Yes. But the Tenth Amendment isn’t implicated, because the power was delegated to the Congress right up front.
Which isn’t to say that you cannot (or even should not) complain about that expansion. But you cannot claim that the Tenth Amendment is implicated.
I’ll only note here that the Tenth Amendment says nothing about “rights.” States do not have “rights.” The Tenth Amendment is about naked power. Who gets to make the rules? Who gets to enforce them? Who gets to decide them? What limits are there on those powers?
Your examination of the issue has nothing to do with the Tenth Amendment.
But what it has come to mean, as opposed to its original meaning, is an expansion that necessarily impinges upon a power, or potential power, that a state could exercise. If the Feds assume the power to regulate any activity where something COULD be bought and sold between the states, then the states’ power has been diminished. The fact that the Commerce Clause clearly gives the Feds regulatory power does not mean that any expansion of that power is necessarily okay relative to the tenth, right? The Commerce Clause is not a “foot in the door” that legitimizes anything done in its name, simply because some power was clearly delegated to the Feds. Just because the Feds have the power to regulate doesn’t mean any regulation they infer is correct and not a usurping of states’ powers.
This is a semantical distinction without a difference. Change my words to say, “The states may exercise any power not explicitly prohibited by the US Constitution (or their own).” I don’t think it changes the meaning at all. And the exercise of state power is a de facto establishment and/or elimination of rights. There are no limits on the states’ powers except to the extent that the state’s or the US’s constitutions limit those powers, typically by virtue of an explicitly enumerated and protected right. That’s what “state’s rights” mean, or some variation on it. Pointing out that states “don’t have rights” is a quibble, ISTM. The tenth, in plain English, naturally leads to the states determining what rights exist, within the boundaries noted (or it should).
I think this is an excellent OP, and I can’t understand why some posters are being dismissive. Obviously the 10th amendment sees a scenario where the federal government has a few powers and the vast remaining powers are given to the states or the people.
The expansive view of the commerce clause that puts virtually everything, if not absolutely everything under the direction of the federal government is very much at odds with the 10th amendment, and is excellent evidence that the current view of the commerce clause shouldn’t be that expansive.
Not to speak for the OP, but I take his question to be: If you agree with the current commerce clause jurisprudence, then how do you reconcile that fact with what the 10th amendment says? If the feds have virtually unlimited power due to the commerce clause, then why the 10th amendment? Why the list of other powers? Why pretend that there is any kind of substantive limitation or that the states have any type of reserved powers?
The fact that the Commerce Clause is being over-expanded, if you will, does not implicate the Tenth Amendment. The same is arguably true about the Taxing and Spending Clause (which, frankly, is being abused far worse that the CC is; it’s why you must wear seat belts, for example). Yes, power is being diminished, but the Tenth Amendment doesn’t say: here is where the power lines are drawn and that cannot ever change. The Tenth Amendment says: here is the superset of governmental power. We’ve named some subsets, and handed them off to the federal government. The other subsets belong to the states, unless we told the states they cannot have a given subset either. I do not for a mintue believe that the framers of the Constitution, or the Tenth Amendment, thought that this would mean that the size of the subsets would not be subject to drift as needed, else they could have been much more specific in defining the power subsets.
Let’s give an example to see what the Tenth Amendment DOES mean.
Marriage.
The power to determine what is or is not a marriage is not in the purview of the federal government. If we read the laundry list of things the government can do, we do not find the ability to establish/give preference to a legal relationship between parties called marriage. So, it would be a violation of the Constitution for the federal government to pass a statute, applicable in the states, setting up a mechanism for getting married, issuing licenses, setting the boundaries of who can and can’t get married, etc. (we have to qualify this because it’s perfectly valid for them to do this for the territories that they control directly, like, say, the D. of C.). Why is it a violation? Because the Constitution does not say: Congress has the power to regulate marriages. So, since this power is not delegated to the United States, and is not prohibited to the states, the power resides with the states. What guarantees that the states have it? The Tenth Amendment.
Ok, let’s do a simple substitution of “power” for “right” in your second paragraph of your first posting:
Now, if you please, since we both know that this simple substitution is not what you intend, explain how the Tenth Amendment has anything to do with a “right” that a state has, even in the sense that you are really talking?
