What about things that are explicitly mentioned, but not defined in detail, like the commerce clause, and the “necessary and proper” clause?
That’s where the Supreme Court comes in. As long as they interpret and not make shit up, all is well. There is a gray area, but there is also black and white.
Regards,
Shodan
It seems to me like there’s a lot of room for legitimate disagreements in those gray areas, along with opinions on which areas are actually “black and white”.
Sure, in the gray areas.
I am thinking of decisions like Kelo v. City of New London, in which he Supreme Court ruled that the government can seize your land for the benefit of a favored third party. And of course Roe v. Wade, and various lower court decisions changing the legal definition of marriage by fiat.
Regards,
Shodan
I agree that the Feds are limited (in theory, not de facto) by the Constitution - but that doesn’t apply here. According to your logic, a state can overrule 2 USC 2c and tell Congress “No we’re not using districts, we are electing at-large.”
Also, I don’t believe you can call yourself a textualist and believe Congress can’t legislate on this issue under the Supremacy Clause.
[QUOTE=Article I, Section 4, Clause 1]
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
[/QUOTE]
So as much as I hate it, Congress can make up any rule about how to elect Senators (post-Amend. 17) and Representatives.
I’m having to laugh at this on the sidelines, living in California. Because California has the exact same type of commission. And if the SCOTUS rules that the Arizona commission is unconstitutional, then the California one would be, as well. And the Republicans might get a couple more Republican Congressmembers out of it, but the Democratic legislature in California would be gerrymandering to create a whole bunch more of Democratic-dominated districts. This is a loser for the Republicans.
[QUOTE=U.S. Constitution, Article V]
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments…
[/QUOTE]
Under the theory, could voters in Arizona, or other states, pass an initiative calling for a constitutional convention?
Missed the edit window…or could voters, through the initiative process, ratify a proposed amendment assuming that Congress has specified legislative ratification (as has been done for all but one amendment)?
If not, then why does “legislature” mean something different in Article V than it does in Article I?
Well, OK, you’re just wrong. The federal government is not, in fact, quite as limited as all that. And the Tenth Amendment in its plain text does not forbid the People from delegating functions to Congress where that would be useful, for to forbid that delegation would be a denial of the right of the People to govern themselves in such manner as they deem effective and desirable.
But thanks for trying to help.
Regards,
How, specifically, is he wrong? Didn’t he just restate the principle enunciated in Mculloch v. Maryland?
What case are you relying on when you say he’s just wrong?
And what the hell is is this “where it would be useful” business? That’s not any kind of standard or test in the constitutional sphere I’ve ever heard.
He’s exactly correct. If the federal government makes laws that the Constitution does not grant them the power to make, those laws are invalid. In contrast, the states have plenary power to legislate in any area; there is no list of state powers.
Now, the Supremacy Clause says that when the Constitution DOES give Congress the power, its power is supreme…by which it follows that there are areas where the states don’t have power to legislate because the federal government has that power.
But the fact remains that the federal government must justify every single law it passes by showing what portion of the Constitution gives it that power. The states don’t need to do that.
That is the fundamental rule of federalism.
My cite for this proposition is McCulloch v. Maryland and about a kajillion cases that are its progeny. More recent cases that have affirmed this principle include U.S. v. Lopez and U.S. v. Morrison.
What cases say that he’s wrong? Specifically?
Are you actually proposing that we adopt a strictly literalistic interpretation of the Constitution? What would the consequences be? What, if any, widely accepted institutions of the Federal government would we have to disembowel? Do you advocate such changes, or are you simply smacking someone upside the jaw with your law degree?
I don’t think even the most “liberal” Justice on the SCOTUS would disagree with what Bricker wrote. IOW, there needs to be some justification in the Constitution for federal legislation-- it cannot legislate in a vacuum.
Bricker, your continued support of Wickard v. Filburn makes everything you said a nice history lesson but useless in practice. When asked by what authority the feds act under, they can simply say: Interstate Commerce Clause. Such a jurisprudence gives them, in effect, plenary powers.
Close, but not quite. The SCOUTS ruled just recently against Congress in National Federation of Independent Business v. Sebelius wrt the Medicaid Expansion issue.
But it was conceded that Congress could nationalize health care and it wouldn’t be a problem. The courts have picked around the edges and struck down different ways that the feds have enacted certain things, but there is no real meat in saying that they cannot do certain things. So far as I can see there has been only one real limit on federal power since the 1930s: U.S. v. Morrison.
The feds cannot give domestic violence victims relief in federal court.
That’s it.
Bricker, there is a huge difference between a constitution saying, “Congress has authority in these domains,” and one saying, “Congress can only pass such laws as are specifically and explicitly permitted to be passed by this document.” The latter would presumably reduce Congress to approving executive officials and setting tax rates, inasmuch as everything that could be passed would have been spelled out in the Constitution already. Clearly, given that Congress is authorized to ratify treaties and pass an indefinitely wide variety of laws, we do not have the latter type.
As for my contention that the people have reserved to them the right to delegate new functions to Congress at will, I base that on what I consider a reasonable textualist reading of the Tenth Amendment. To deny the right of the people to pass a law nationally is to deny the people a positive and practical right, and semiotically opposed to the text of the Tenth Amendment, even if it seems practically consistent for those who want the Tenth Amendment to have a measurable effect on the making of law.
This makes the use of the Tenth Amendment to shut down Congressional activity apparently consistent but philosophically questionable…and due to this paradox the Tenth Amendment has typically failed to be cited in case law. Because it logically forbids nothing to the People, not even the expansion of federal power in the People’s name.
If you wanted a treaty organization instead of a sovereign government, you should have phrased the clause better.
If Bricker actually had a hand in it, he would most likely have admitted it by now.
You are forgetting United States v. Lopez, which sharply narrowed the “call it interstate commerce!” justification.
Congress reenacted the GFSZA with findings that gun violence affects interstate commerce. Not much power behind Lopez.
Don’t forget South Dakota v Dole! Even if a power to legislate is not given to Congress, it really is if Congress is paying for it. Power of the Pursestrings. See also: NCLB for Congress using Tax & Spend to legislate outside of its enumerated powers.