[tlj009]

Then you're setting the Necessary and Proper Clause, judicial review, Marbury v. Madison and McCulluch v. Maryland, the Louisiana Purchase, the US Air Force, etc., against each other and the 10th amendment. Who wrote the opinion for McCulloch? That's right, John Marshall, one of the people who wrote teh Constitution. Are you saying that Marshall was misinterpreting a document he wrote?

As opposed to Madison and Jefferson?

I would agree with you, provided that 'expressly' was used in the 10th amendment, which was the situation with the Articles of Confederation. But it isn't, and that means The NEcessary and Proper Clause is a power of the COngress, not a limitation. The Constitution is establishing federalism, not any kind of 'states rights' doctrine that has the power to override the Federal gov't. 200 years of constitutional jurisprudence rejects that interpretation.

The Constitution established the Federal Government as supreme in its sphere of action. Or as Marshall says "If any one proposition could command the universal assent of mankind, we might expect it would be this– that the government of the Union, though limited in its power, is supreme within its sphere of action." What you are saying is that basically the Fed. Gov't is not limited in its power.

[Ridley's Own]

Originally Posted by tlj009

As opposed to Madison and Jefferson?

Both of those presidents utilized and expanded not only federal power but presidential power as well. The Louisiana Purchase?

The Constitution established the Federal Government as supreme in its sphere of action. Or as Marshall says "If any one proposition could command the universal assent of mankind, we might expect it would be this– that the government of the Union, though limited in its power, is supreme within its sphere of action." What you are saying is that basically the Fed. Gov't is not limited in its power.

Nope. I do believe it's limited in its power. Its called the Bill of Rights, and those are the specific limitations on Federal (and State, via the 14th Amdendment) gov'ts.

[tlj009]

Both of those presidents utilized and expanded not only federal power but presidential power as well. The Louisiana Purchase?

They both also wrote the Kentucky and Virginia Resolutions. Would you like to read an excerpt?

"That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798, and intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the — day of June, 1798, intituled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory."

If you want to compare the qualification of Marshall and Madison, Madison is considered the father of the constitution for a reason. And the argument has never been that the Federal Government can't expand its power. The argument was that the Fed's can't increase their sphere of action.

Nope. I do believe it's limited in its power. Its called the Bill of Rights, and those are the specific limitations on Federal (and State, via the 14th Amdendment) gov'ts.

So the Bill of Rights limits the gov'ts power but it has no limit to its sphere of action? That is a lot further than the decision of McCulloch v Maryland took it. From Wiki:

"1. The Court argued that the Constitution was a social contract created by the people via the Constitutional Convention. The government proceeds from the people and binds the state sovereignties. Therefore, the federal government is supreme, based on the consent of the people. Marshall declares the federal government’s overarching supremacy in his statement:

“ If any one proposition could command the universal assent of mankind, we might expect it would be this– that the government of the Union, though limited in its power, is supreme within its sphere of action.

2. Congress is bound to act under explicit or implied powers of the Constitution. Pragmatically, if all of the means for implementing the explicit powers were listed, then we would not be able to understand or embrace the document; it would not be possible to write them all down in a brief document. Although the term "bank" is not included, there are express powers in the Taxing and Spending Clause. Although not explicitly stated, Congress has the implied power to create the bank in order to implement the express powers.

3. Marshall supported the Court's opinion textually using the Necessary and Proper Clause, which permits Congress to seek an objective that is within the enumerated powers as long as it is rationally related to the objective and not forbidden by the Constitution. Marshall rejected Maryland's narrow interpretation of the clause, because many of the enumerated powers would be useless. Marshall noted that the Necessary and Proper Clause is listed within the powers of Congress, not the limitations."

http://en.wikipedia.org/wiki/McCulloch_v._Maryland

So there were three reasons. I bolded the relevant parts of the last two that limits the sphere of action of the Fed. Gov't.

[Ridley's Own]

Originally Posted by tlj009

They both also wrote the Kentucky and Virginia Resolutions. Would you like to read an excerpt?

Not particularly. Since they weren't adopted by anyone other than Virginia and Kentucky, since they argued against the idea of the Union of states expressed by the Constitution itself. Otherwise, you're rejecting the notion that the US is a nation at all. They're irrelevant, they're founded on a legal theory consistently rejected by both the Federal and State Courts, they blur the seperation of powers that they're supposedly supposed to protect, and they're rejected by all the states involved at the time.

So the Bill of Rights limits the gov'ts power but it has no limit to its sphere of action? That is a lot further than the decision of McCulloch v Maryland took it. From Wiki:

"1. The Court argued that the Constitution was a social contract created by the people via the Constitutional Convention. The government proceeds from the people and binds the state sovereignties. Therefore, the federal government is supreme, based on the consent of the people. Marshall declares the federal government’s overarching supremacy in his statement:

“ If any one proposition could command the universal assent of mankind, we might expect it would be this– that the government of the Union, though limited in its power, is supreme within its sphere of action.

2. Congress is bound to act under explicit or implied powers of the Constitution. Pragmatically, if all of the means for implementing the explicit powers were listed, then we would not be able to understand or embrace the document; it would not be possible to write them all down in a brief document. Although the term "bank" is not included, there are express powers in the Taxing and Spending Clause. Although not explicitly stated, Congress has the implied power to create the bank in order to implement the express powers.

3. Marshall supported the Court's opinion textually using the Necessary and Proper Clause, which permits Congress to seek an objective that is within the enumerated powers as long as it is rationally related to the objective and not forbidden by the Constitution. Marshall rejected Maryland's narrow interpretation of the clause, because many of the enumerated powers would be useless. Marshall noted that the Necessary and Proper Clause is listed within the powers of Congress, not the limitations."

http://en.wikipedia.org/wiki/McCulloch_v._Maryland

So there were three reasons. I bolded the relevant parts of the last two that limits the sphere of action of the Fed. Gov't.

You're beginning to split hairs here. The limits to federal sphere of action is found in the 10th amendment; the Federal gov't can't force states to enforce Federal law. Further, if you take the KY and VA Resolutions plus limiting the powers of the federal gov't to what is expressly written in the constitution (which is itself a violation of the 9th amendment), means there's no implied powers whatsoever. Which McCulloch rejects.

[tlj009]

Not particularly. Since they weren't adopted by anyone other than Virginia and Kentucky, since they argued against the idea of the Union of states expressed by the Constitution itself. Otherwise, you're rejecting the notion that the US is a nation at all. They're irrelevant, they're founded on a legal theory consistently rejected by both the Federal and State Courts, they blur the seperation of powers that they're supposedly supposed to protect, and they're rejected by all the states involved at the time.

So you can question the Madison's opinion of what the Constitution says (Madison being considered the father of the Constitution) but Bryan can't question Marshall's opinion? This is what you said, "Who wrote the opinion for McCulloch? That's right, John Marshall, one of the people who wrote teh Constitution. Are you saying that Marshall was misinterpreting a document he wrote?"

You're beginning to split hairs here. The limits to federal sphere of action is found in the 10th amendment; the Federal gov't can't force states to enforce Federal law. Further, if you take the KY and VA Resolutions plus limiting the powers of the federal gov't to what is expressly written in the constitution (which is itself a violation of the 9th amendment), means there's no implied powers whatsoever. Which McCulloch rejects.

Let me see if I understand what you just posted.

"The limits to federal sphere of action is found in the 10th amendment"
The amendment specifically saying that if the powers aren't expressly found in the Constitution, then they are left to the State.

"the Federal gov't can't force states to enforce Federal law."
So if the States feel that the Federal Gov't has overstepped its bounds, then the State's don't have to follow the law.

"Further, if you take the KY and VA Resolutions plus limiting the powers of the federal gov't to what is expressly written in the constitution"

Back up a little bit. I thought that we just agreed that the Fed's power is absolute but that the sphere of action is what is limited. There is no need to add that additional standard to the KY and VA Resolutions.

"(which is itself a violation of the 9th amendment), means there's no implied powers whatsoever. Which McCulloch rejects."
You could have not even mentioned the KY and VA Resolutions and made that statement. And since I conceded that the Federal Gov't is supreme in its purpose as outlined in the constitution and also that there are implied powers required in fulfilling that purpose, then it appears that you are making a strawman argument.

The issue is whether or not something like Education is within the Fed's sphere of action. What specific "enumerated power" would call for the federal Department of Education? If there is none, then the Fed's have overstepped their bounds.

[Bryan]

Originally Posted by Ridley's Own

I'm not sure the history of Constitutional jurisprudence would aaccept that. My reading of both amendments is two fold... First, tht the 9th amendment protects rights from people who say, "this right isn't enumerated, so you don't have it,' and not, as it were, 'This right isn't enumerated, so tht means we can create whatever rights we want.' Likewise, teh 10th amdnemdnt exists to protect federalism, and not necessarily limit the federal powers in the wy that you're using it.

the 10th ammendment wasn't designed to protect federalism, but to limit it.

[Ridley's Own]

Originally Posted by Bryan

the 10th ammendment wasn't designed to protect federalism, but to limit it.

Erm, federalism itself is limited by virtue of it being federalism. It ain't 'federal' if there isn't a distinction between the power(s) of the central government and its constituent states. The 10th amendment protects federalism by making that distinction between the state and central government and keeping the states from being mere instruments of the central government. If you limit Federalism, then it isn't federalism anymore. Its either something less or something more than that (ie., either a confederacy like the European Union or a unitary-but-devolved government like the UK).