Legal Commentary

: TalkLeft

Taking The Tenth Amendment Seriously

By Big Tent Democrat (index)

Radley Balko accuses those of us who ridicule the modern day John C. Calhouns in the Republican Party (see, e.g., Rick Perry and Tim Pawlenty arguing they can nullify federal legislation) as not taking the Tenth Amendment seriously. the problem with Balko's argument is twofold - (1) the theory of nullification was decided in 1865, when the North won the Civil War; and (2)the Tenth Amendment does not say what he thinks it does. Balko says we can look it up. Indeed we can. Here is what the Tenth Amendment 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.

The text makes clear that the key analysis is what powers were "not delegated to the United States." In essence, the Tenth Amendment is irrelevant to the argument. It is not "states rights" via the Tenth Amendment that determine whether the Congress can act, it is the rest of the Constitution that is at issue. Of course the main issues, given the jurisprudence, is the Commerce power. Tenthers like to ignore Gibbons v. Ogden, where Chief Justice John Marshall wrote:

What is this [Commerce] power?

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.

Memo to Radley Balko, it was the Federalists who won the debate with the anti-Federalists during the Constitutional Convention and the ratification process.

Speaking for me only

Full post as published by TalkLeft on September 22, 2009 (boomark / email).