[tlj009]

So, what does everyone make of this? Good, bad, or political fighting?

http://www.tenthamendmentcenter.com/...y-resolutions/

[Bryan]

i think it's good. I think we ignore the constitution far too much (in both good and bad ways). There are a lot of things the federal government does that it isn't empowered to do by the constitution. Take, for example, the department of education. Nowhere does the constitution give the federal govt the power to have such an agency. Is it a good thing? Maybe... but if we think it should be there, the constitution should be amended to allow for it.

[Ridley's Own]

Originally Posted by Bryan

i think it's good. I think we ignore the constitution far too much (in both good and bad ways). There are a lot of things the federal government does that it isn't empowered to do by the constitution. Take, for example, the department of education. Nowhere does the constitution give the federal govt the power to have such an agency. Is it a good thing? Maybe... but if we think it should be there, the constitution should be amended to allow for it.

That's a rather narrow reading of Art. II, Sec. II of the aforementioned Constitution...

Originally Posted by Article II, Sec. 2

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

These resolutions are nonsense, btw. The Constitution isn't a compact between states. The preamble rather explicitly states the intention to create a single nation, not a mechanism to govern 50 independant states. There's a reason it says 'We the People' and not, as the Articles of COnfederation begin, with a reference to the states. The Framers rejected that interpretation outright.

[tlj009]

That's a rather narrow reading of Art. II, Sec. II of the aforementioned Constitution...

I don't see the point that you are trying to make with that.

These resolutions are nonsense, btw. The Constitution isn't a compact between states. The preamble rather explicitly states the intention to create a single nation, not a mechanism to govern 50 independant states. There's a reason it says 'We the People' and not, as the Articles of COnfederation begin, with a reference to the states. The Framers rejected that interpretation outright.

But the states do have rights. And when the federal government signed the state constitutions it really was a pact between the state and the United States. Would this not be the appropriate first step of a state that believe the US broke that pact?

[Ridley's Own]

Originally Posted by tlj009

I don't see the point that you are trying to make with that.

Bryan was, I'm assuming, attempting to show that the Constitution doesn't give the Fed. government the power to have a 'Department of Education.' The Constitution, however, gives the Pres. with COngressional approval the right to create any office s/he choses.

But the states do have rights. And when the federal government signed the state constitutions it really was a pact between the state and the United States. Would this not be the appropriate first step of a state that believe the US broke that pact?

The Fed. Gov't (whatever that may be) doesn't sign state constitutions. The Congress merely 'admit' the new state to the union and guarentees a Republican form of government. There's noting suggesting a 'pact' in the process.

[RubberChipmunk]

Originally Posted by Ridley's Own

These resolutions are nonsense, btw. The Constitution isn't a compact between states. The preamble rather explicitly states the intention to create a single nation, not a mechanism to govern 50 independant states. There's a reason it says 'We the People' and not, as the Articles of COnfederation begin, with a reference to the states. The Framers rejected that interpretation outright.

The United Federation of Planets government is incredibly similar to the United States government. The Federation IS independent worlds united under a common representative government. Their militaries are merged into the federation starfleet. The federation provides for the defense of its member worlds and provides for regulated trade and discussion between them without infringing on their own planetary governments. The only things the federation requires to be changed is any part in that planet's government's constitution that goes against the federation charters.

Now it may sound silly bringing up a fictional system of planetary government, but to my understanding, that is exactly how our government is supposed to work. The federal goverment was never meant to do much more than provide for the common defense and regulate trade and discussion. The states themselves all have constitutions or statutes. The laws between states are different in many places, but many common laws exist due to the fact that its a requirement to be a part of the United States. We are a group of fifty states that are united into a government set out to represent and defend the interests of all of us, while ourselves handling our own business. It still is a single nation, but that doesn't change the fact that the United States is still a group of united states with a common interest.

[tlj009]

Bryan was, I'm assuming, attempting to show that the Constitution doesn't give the Fed. government the power to have a 'Department of Education.' The Constitution, however, gives the Pres. with COngressional approval the right to create any office s/he choses.

I think that what Bryan was getting at is that the constitution doesn't give the federal government power over education. That education is the responsibility of the state. By the US Department of Education saying to do things their way or else, the federal government has basically found a loophole around the tenth amendment thereby making it of non-effect. It is basically a lawyer's answer to take power from the states and give it to the Federal government.

The Fed. Gov't (whatever that may be) doesn't sign state constitutions. The Congress merely 'admit' the new state to the union and guarentees a Republican form of government. There's noting suggesting a 'pact' in the process.

I haven't checked all of the state constitutions but I recently saw an argument against banning guns because it would violate Montana's Constitution. Article 1 of Montana's Constitution reads "COMPACT WITH THE UNITED STATES". Besides that there is the 9th amendment in the US constitution.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

followed by the 10th amendment

"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."

These two taken together seems to give power to the states and the people rather than to the US. The 9th amendment would seem to protect everything not included in the US constitution as rights retained by the people. The 10th amendment seems to give everything new that may come up either to the States or to the people. The result being that if it is not specifically stated as a right of the US government, then it is a state right or a private right. So if the US is to gain more power for itself, it should amend its constitution.

[Ridley's Own]

Originally Posted by tlj009

By the US Department of Education saying to do things their way or else, the federal government has basically found a loophole around the tenth amendment thereby making it of non-effect. It is basically a lawyer's answer to take power from the states and give it to the Federal government.

...
These two taken together seems to give power to the states and the people rather than to the US. The 9th amendment would seem to protect everything not included in the US constitution as rights retained by the people. The 10th amendment seems to give everything new that may come up either to the States or to the people. The result being that if it is not specifically stated as a right of the US government, then it is a state right or a private right. So if the US is to gain more power for itself, it should amend its constitution.

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.

IOWs, it exists to prevent the states from being instruments of the federal gov't; not to limit the role of the Federal gov't full stop. The 10th amendment comes into play when the federal gov't starts actually directing the state gov'ts to do things The articles of Confederation had a similar clause, but significantly the constitution omits the word 'expressly.' There are implied powers that have been accepted over the years. This is an almost autistic reading of the constitution that even an originalist like Scalia would reject.

I haven't checked all of the state constitutions but I recently saw an argument against banning guns because it would violate Montana's Constitution. Article 1 of Montana's Constitution reads "COMPACT WITH THE UNITED STATES".

And? I'm simply saying wht the rest of the US has. We still ahve the supremacy clause.

[tlj009]

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.

IOWs, it exists to prevent the states from being instruments of the federal gov't; not to limit the role of the Federal gov't full stop. The 10th amendment comes into play when the federal gov't starts actually directing the state gov'ts to do things The articles of Confederation had a similar clause, but significantly the constitution omits the word 'expressly.' There are implied powers that have been accepted over the years. This is an almost autistic reading of the constitution that even an originalist like Scalia would reject.

The example with education is an example of the federal gov't directing the state gov'ts to do things. Also there were the Kentucky and Virginia Resolutions which were written by James Madison and Thomas Jefferson. They seem to agree that the federal government were given very specific powers and if they were exceeded, the states could declare the laws unconstitutional.

http://en.wikipedia.org/wiki/Kentuck...ia_Resolutions

And? I'm simply saying wht the rest of the US has. We still ahve the supremacy clause.

The supremacy clause only applies if the federal government is exercising its constitutionally authorized powers. There again, education doesn't seem to be in pursuit of any of the powers authorized by the constitution.

http://en.wikipedia.org/wiki/States%27_rights

[Bryan]

Originally Posted by Ridley's Own

That's a rather narrow reading of Art. II, Sec. II of the aforementioned Constitution...

this section doesn't give the fed the power to create any department or exercise any authority it wants. This section allows the fed to create offices that facilitate the exercise of the authority given it by the Constitution. The Constitution never empowers the fed to regulate education. And it can't claim that power by creating a department of education. What it can do is create a department of commerce and a secretary of commerce for the regulation of interstate commerce. It can create a grand poobah of military operations to control the military if it wants to. It can create a Department of Homeland Security and a director because that falls under the national defense powers.

[Bryan]

Originally Posted by Ridley's Own

IOWs, it exists to prevent the states from being instruments of the federal gov't; not to limit the role of the Federal gov't full stop. The 10th amendment comes into play when the federal gov't starts actually directing the state gov'ts to do things .

did you even read the amendment? It specifically says that whatever powers not delegated (read granted) to the fed by the Constitution is reserved for the states.

There are implied powers that have been accepted over the years.

and this is the problem. We have allowed the US to ignore the constitution on too many instances. You can't allow it in some areas and not in others. You can't waive the constitution when the fed is trying to restrict your liberty and at the same time ignore it when you want the fed to require states to follow certain laws regarding education, agriculture, intrastate business, etc.

[JerryLove]

It seems these resolutions are a bit out of jurisdiction, much like Illinois recently declaring Pluto a planet.

[tlj009]

It seems these resolutions are a bit out of jurisdiction, much like Illinois recently declaring Pluto a planet.

I disagree. As was pointed out earlier, the resolutions basically do nothing except express disapproval. It says straighten up or else. The question is or else what? There are several ways to make an amendment to the constitution and the states are not without power. An amendment to the US constitution can be both proposed and passed by the states. It requires 2/3rd vote to propose the amendments and 3/4 vote to approve them. But the point is that the first step would likely be a resolution like the one here. If it were overwhelmingly approved by the states, then it is far more likely that the states would vote to have a convention for the purpose of amending the constitution. And even a threat of that would likely cause some major changes in Washington.

[JerryLove]

Originally Posted by tlj009

I disagree. As was pointed out earlier, the resolutions basically do nothing except express disapproval. It says straighten up or else. The question is or else what?

So after much deliberation and tax-expenditure, we agree to say "we don't like this"?!?

I suppose in a society where all laws are perfect in form or function we can waste time and energy drafting nothing. I hope it was long. Larry Niven says "if you've got nothing to say, take all the time you like and use big words"

There are several ways to make an amendment to the constitution and the states are not without power. An amendment to the US constitution can be both proposed and passed by the states. It requires 2/3rd vote to propose the amendments and 3/4 vote to approve them. But the point is that the first step would likely be a resolution like the one here. If it were overwhelmingly approved by the states, then it is far more likely that the states would vote to have a convention for the purpose of amending the constitution. And even a threat of that would likely cause some major changes in Washington.

Bah. If 3/4 of states could get 2/3rds of their state constitutions to agree to something, then it would be easy to get a like number of US representatives.

[Ridley's Own]

Originally Posted by Bryan

did you even read the amendment? It specifically says that whatever powers not delegated (read granted) to the fed by the Constitution is reserved for the states.
and this is the problem.

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?

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.