I’m not an American, so perhaps don’t understand the issues the same way as someone in the US, but I was brought up once again by a comment I read in a recent thread, talking about how the Constitutional powers not explicitly delegated to the federal government belong to the states.
I have always wondered about this states’ rights v.s. federal government issue being presented as a two-party issue. The 10th Amendment to the US Constitution quite clearly says “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.”
Why are the residual powers covered by this section assumed to belong to the state governments rather than to ‘the people’? And why can’t ‘the people’ decide to delegate them to the Feds through Congress passing legislation? Is this a legal/constitutional issue which has been definitively answered to the point where it is a given and therefore not included in any arguments, or is it glossed over based on the fact that the usual suspects in this sort of argument are Federal v.s. state politicians, neither of whom are normally interested in letting any of these powers out of their own hands?
(I’m not sure that this might not be GD material, but I’ll post in GQ in hopes that there is a clear answer.)
The United States started when a bunch of self-governing colonies rebelled against the British and successfully gained independence. At that point, they were de facto independent countries, forming a loose alliance to fght the British. They wanted to form one federation, but they also wanted to retain a degree of indepoendence as well. The “people” didn’t really come into it, except through their elected representatives in state legislatures and state constitutional conventions.
Remember that each state also has its own constitution, which delineates its powers relative to its people. If the federal constitution doesn’t grant a particular power to the federal government, then it remains within the “domain” of the states, so to speak–that is, it’s up to each state to determine whether the state will exercise that power or leave it to the people. For example, the federal Constitution grants Congress no power over commerce within the state of Illinois. That power is left either to the state of Illinois (state regulation) or to its people (no regulation)–the federal government doesn’t know which, and doesn’t care, but it’s one or the other.
Because that’s not how constitutional government works. The only way for the people to delegate additional powers to Congress is to act through their representatives at both the federal and state level, via constitutional amendment.
I think what you’re asking is, when the Tenth Amendment reserves a power to the “States respectively, or to the people”, do we fight over whether it’s states or people? Well yeah, sometimes we do, but not within the context of the Tenth Amendment. The Tenth Amendment, again, was written to reserve certain powers to the states or the people and to let states make the determination as to which.
So, if I understand correctly, the residual powers are left to the states or the people, but it’s up to the individual state as an entity to decide which it will be, with “the people” having no direct Constitutional standing in the debate?
But the people of each state are responsible for their own state constitution, through the elected process and state constitutional conventions. Take the example of eminent domain, which the SCOTUS ruled on a while ago, saying that it’s mainly a matter of state law. If the people of a state decide that they don’t want private homes being condemned under their state’s eminient domain laws just for economic development, and enact that as a prohibition on their state government in the state constitution, then they’ve reserved that power to themselves, not to the state.
There is unquestionably a power to pick out an established religion, to make the Episcopal Church or the Catholic Church or the Southern Baptist Convention or the Church of Jesus Christ of Latter-day Saints the official religion of the state. A few states did in fact have established churches immediately after the Declaration of Independence.
But the First Amendment prohibits the Federal government from exercising that power. And the Fourteenth Amendment prohibits the States from exercising it as against the rights of U.S. citizens. (I suppose a state could constitutionally designate an official religion for resident aliens if it were so inclined, odd as the concept sounds.)
Likewise, the idea of passing an ex post facto law is not like creating a four-sided triangle; it’s something within the capability of a government to do. But the Constitution prohibits both state and Federal governments from doing so.
These powers are latent in the people – they can be so moved as to elect representatives who amend the constitution to enable some government or other to exercise them, if they so choose.
Under the usual reading of the Tenth Amendment, if the Federal government definitively does not have a power,or if it’s a power held dually and the Feds. haven’t pre-empted all use of it, that power is retained by the states.
However, the states, like the Fed. govt., are the creation of “We the people,” and may adopt constitutions prohibiting themselves from exercising certain powers. North Carolina’s General Assembly, for example, is not permitted to state what shall happen to fines assessed by the criminal courts of the state; the constitution specifies that, and the G.A. does not have that power.
When a power belongs neither to the Federal government nor to the state governments, and can be shown to potentially exist, it must lie latent in “the people” pending their willingness to permit one or the other level of government to exercise it.
The 10th amendment is all but dead in practical purposes today, because the federal government has taken it’s power to regulate “interstate commerce” to a ludicrous extreme.
For example, in the 1940s there was a federal law regulating the amount of wheat a farmer could grow. The farmer stated that he used the wheat for his own personal consumption and the government didn’t argue the point.
So keep in mind that the wheat was not “commerce” and certainly not “interstate” but SCOTUS ruled that it was a legitimate exercise because if the farmer hadn’t grown his own wheat, he would have to buy in on the market, thereby “affecting” interstate commerce.
As Justice Thomas points out frequently, with such a loose understanding of the clause, one is hard-pressed to find ONE SINGLE ISSUE that the Feds can’t rule under the guise of regulating “interstate commerce”. The 10th means nothing…