Uhm, yes it does. Whatever the CONSTITUTION says the federal government has powers over, or what the states DON’T have power over, is what the federal government has power over. You are correct in the sense that we could amend the constitution to change the power structure, but according to the constitution itself, the lines are clearly drawn. Of course, they have been changed over time in favor of the federal government, but according to the constitution, they shouldn’t have been.
Or, it would have taken too long and been too complicated to try and specifically list every item the federal government, state governments, and people have. And the language is just fine. Read the constitution, does it give the federal government power over something, or prohibit power to the states? If so, it’s in the federal government’s jurisdiction. Otherwise it isn’t.
That sounds like a clear and cut case for division of power, which you say doesn’t exist.
I’m not Stratocaster, but I’ll give my interpretation of the 10th amendment in more detail than I have already given.
Only items which are explicitly placed under jurisdiction of the federal government, or explicitly prohibited to state governments, falls under the jurisdiction of the federal government. Everything else falls under the jurisdiction of the states.
Or
The federal government only has the right to govern what is specifically spelled out for it to do so by the constitution, or what is specifically forbidden to the states. The states have the right to govern everything else.
It would seem to me to be an easy power grab to put marriage under the commerce clause. An Iowa gay married couple vacationing in Key West, FL run into some sort of trouble that doesn’t allow them to act as a married couple. Commerce? Sure, look at all of the interstate money spent on hotels, travel, dining, etc. That was one of the hooks for the civil rights act: That out of staters could use the facilities of the southern states that discriminated against them.
And how many out-of-staters get married in Las Vegas? That’s a clear cut case of interstate commerce. And fleeing criminals often cross state lines, surely this is an argument that all law enforcement be put under federal control? How about driver’s licenses? I don’t think I even need to spell out that argument. I mean we drive on interstates for Pete’s sake.
So, basically, the 10th Amendment means the states get the powers that the federal gov’t hasn’t claimed yet. Sounds like a real useful amendment there.
I can’t tell if you are being facetious or not, but yeah, I agree. That was the whole point I was making. It seems as if the case law will give the most feeble of connections to interstate commerce the thumbs up when it comes to federal regulation.
Some might point to Lopez and Morrison as two examples of how the Court protects states rights, but I call absolute bullshit. Those cases dealt with gun possession near schools and domestic violence respectively. They didn’t even deal with commerce at all, let alone interstate commerce, but they still got 4 minority votes to uphold them. Congress has reenacted the Gun Free Schools Law and has a host of other protection for Violence Against Women, so those two decisions have been gutted for all intents and purposes.
I would like someone to chime in and tell me what the vast and many powers that the states have that the feds cannot take from them; not the ones that they have been nice enough not to take…
It seems you just don’t understand either what DS is saying, or where to place the blame or whatever. Wherever the culprit is, it isn’t the tenth amendment. The tenth amendment says that powers not given to the federal government, or prohibited from the states are reserved to the states, or the people.
But the power you’re bitching about is specifically given to the federal government.
Your issue, I gather, is how they use it. That’s a policy decision, a political decision. It isn’t a tenth amendment issue. The precepts of the tenth amendment are met: the ability to regulate interstate commerce is specifically reserved to the federal government. I don’t see how you can gripe about it violating the tenth amendment when it very clearly does not.
To review:
*X Amendment says: powers not reserved the federal government . . .
*The ability to regular interstate commerce is reserved to the federal government by Article 1, section 8, clause 3. QED.
Now, for the more general question OP, it starts off with a false assumption.
States have no rights, only power. How constrained that power may be is entirely dictated by the people. That we collectively choose poorly is our own fault; we simply need to require more of our politicians.
I hate that I seem to be stuck with only the interstate commerce vs drug regulations issue, but since I am, I’ll address what you just said. In this particular instance, my point is that I do not believe that growing your own pot has anything to do with interstate commerce. My belief is that saying it does is just another way for the federal government to expand its power by taking away powers that should belong to the states. Obviously you, DSYoungEsq, and yes, even the Supreme Court disagree, but that doesn’t change my mind.
Rights, powers, I see this as quibbling over semantics.
The states have the right to legislate whatever is not given to the federal government or denied to the states.
The states have the power to legislate whatever is not given to the federal government or denied to the states.
Sure, it’s semantics. It is a “debate”. You say semantics like it’s an unimportant idea or something. In the law, semantics, well, it’s pretty important.
For instance, there’s a semantical difference between right and power. It isn’t just a matter of terminology (though to be sure it is that as well). How one reads a statute must depend on the words actually used. A right is something which can’t be just done away with willy nilly. A general power can shaped and modified ad hoc.
I only dealt with the commerce clause because it was the issue most heavily discussed. And since it’s the prevailing law, it makes sense to start there.
Do I think that someone growing pot in their backyard affects interstate commerce? Absolutely not. Unless, of course, there’s a market by which pot is generally distributed interstate and growing your own somehow harms that market.
Hell, in that situation, one would think the government would be for people growing their own to hurt the overall market. Once that market dies out, well, the war on drugs will have be won*.
*except not.
I’m all for having as few laws as is necessary. But my opinion counts about 1/300000000. All that really matters at the moment is that the SC says it applies. So, it does. Want that changed? Voting is the way to go. All you need to do is to convince 75% of the States to alter the constitution. Or, get lots and lots of people elected who are pro-drugs, or rather anti-drug war.
I don’t do drugs. It’s just not my thing. But if you want to pump whatever into your system, I support that. Given the chance, I’d vote on decriminalizing all drugs. That doesn’t mean, however, that I’m going to go out trying to make it happen. The issue just isn’t important to me outside of the “fewer laws is better” kind of thing. But then with so many excessive laws, one doesn’t know where to start except for the causes one finds important.
Consider that I’m gay. Presumably, I have an interest in getting gay marriage legalized. Other than the fact that I’m being told that my relationships are inferior, I don’t really care. I have no desire to marry anyone as I find the institution to be, well, stupid. Do I think DOMA should be repealed? Yes. Am I going to go out campaigning for it? No.
But whether I like it or not, right now it’s what we have.
I don’t do drugs either, so my mentioning growing pot is just because of the principle of the thing. I’m not going to try to change anything either. As time goes on more and more powers are taken from the states and given to the federal government. It just seems to be the way it is.
True. There are a lot of laws we are all stuck with whether or not we agree with them.
I can’t help feeling that in the Great American Debate between the Jefferson approach making the federal government into some kind of powerless States arbitrator more like the League of Nations than the UN, and the Union approach, if Jefferson’s beliefs had won out, what is today the USA would probably have split into several Federations and quite likely a few independent countries bearing more socio-economic resemblance to South America or perhaps better, Australia than to its present might. Utah, or more likely Deseret further South would no doubt be a theocracy perhaps less free than Iran, while parts of the Deep South would be impoverished South Africas of the Apartheid period.
Nobody is talking about going back to before Gibbons v. Ogden here. I am just talking about having a minimum of meaning to the 10th amendment and saying that states have some reserved powers that can’t be taken away. Some posters here say that states have these vast powers yet can’t point to an inviolate one.
I think you overstate the religious intolerance of the south. Surely we are far less religious now than at any time in the past, and we’ve never come close to a theocracy. Do you honestly think that if given the rope that Alabama would start hanging witches?
Yes and no. Between 1789 and 1867, states were delimited in what they could do by certain passages in the Constitution “proper” (as opposed to amendments) – notably Article I, Section 10, and portions of Article IV. A state could not, for example, pass an ex post facto law or establish a dictator for life. But within these limits they were relatively autonomous.
With the passage and ratification of the Fourteenth Amendment, however, things changed. Prior to 1867 you were an American citizen because you were a citizen of South Carolina or Wisconsin, which were constituent states. They retained numerous powers, including the power to guarantee rights not identified in the Federal constitution. (Some states have specific individual rights to possess and carry firearms and the right to privacy specified in their state cfonstitutions, as opposed to the debates on whether such rights are guaranteed in the Federal one.)
With the Fourteenth, however, all citizens of the states were formally made citizens of the United States, with rights guaranteed by the Federal government. States then became legally incapable of violating those rights – which constituted a limit on their powers.
Some states, for example, had established churches until well after ratification of the Constitution – or so I’m told. But since 1867 they are bound by the First Amendment prohibition of establishments of religion. And while any state can and does regularly modify city boundaries (or enable cities to annex and abandon land), the courts decided that Tuskegee, AL, could not modify its boundaries in such a way as to exclude from the city limits nearly every black family formerly living within the previous boundaries.
So jtgain’s position here (as well as Nobody’s) is partially accurate and partially not. Anything a state chooses to do which is not specifically granted exclusively for the Federal government is permissible – unless it violates a right guaranteed to citizens of the United States – which has over the years become a very broad guarantee.
A fair point, but I would include this under the “nor prohbitied to the states” part of the 10th amendment. If Hawaii passed a law against jaywalking that made the fine $50 for whites and $100 for blacks, then that is clearly in violation of the 14th amendment, and is not a reserved power discussed in the 10th.
So, in that manner, the feds are given an additional oversight power in the 14th amendment, but I fail to see how this would interfere with the remainder of the vast powers reserved to the states under the 10th.