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The Tenth Amendment is only now interpreted as a tautology for political convenience. The text reads: The powers not delegated to the United States by the Con

by Strang 14y ago

The Tenth Amendment is only now interpreted as a tautology for political convenience. The text reads: 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. Just because it is now ignored by our government doesn't make it a tautology. It's still the law of the land; it's just being willfully misinterpreted.

rayiner 14y ago
That's incorrect. It's actually "only now" that the 10th amendment is being interpreted as an affirmative limitation on federal power. Historically, the 10th amendment was considered a mere truism. U.S. v. Darby (1941). Conceptually, how the Constitution works is as follows. The states inherited the sovereignty and unlimited power of the British parliament. In aggreeing to the Constitution, the states delegated some of that power to the federal government, and agreed to refrain from the exercise of certain other powers. The clauses of the Constitution outline the powers delegated and prohibited. All the 10th amendment says is that anything that hasn't been delegated or prohibited hasn't been delegated or prohibited. Which is tautological. The mere face of the text cannot support an interpretation that the 10th amendment does anything other than state the obvious. If a federal action is otherwise Constitutional, by virtue of falling into one of the delegations, then it is by definition something that has not been reserved to the state.
- Strang 14y ago
  The Progressive movement's attempts to circumvent federalism date to the beginning of the 20th century, so you can hardly cite a 1941 case to defend your assertion. That was four years after FDR's court packing scheme and eight years after the formation of the National Recovery Administration. As far as I can tell, you only see the Tenth Amendment as a tautology because you take for granted the makeup and principles of the American government. It was not at all a given at the time that the Federal government would leave sovereignity to the states and only exercise certain defined powers. For example, it has largely ceased to do so today, in violation of the Tenth Amendment.
- crusso 14y ago
  All the 10th amendment says is that anything that hasn't been delegated or prohibited hasn't been delegated or prohibited. Which is tautological. The States battled over the wording of each amendment. Many of the debate texts and the notes from the Founders are still available. How an attorney with the Internet at his fingertips could maintain a contrary delusion is really disturbing to me. There were no throwaway/meaningless amendments in the Bill of Rights. The Tenth Amendment means exactly what it says it means. The States barely allowed the Federal Government to have any power under the Articles of Confederation. The Constitution was an effort to allow more power to the Federal Government, but certainly not limitless arbitrary powers... thus the Ninth and Tenth Amendments.
  - rayiner 14y ago
    The federal government would not have unlimited power without the 9th and 10th amendments--the rest of the Constitution explicitly limits it to the enumerated powers and those necessary and proper to carry out the enumerated powers. Which is precisely what makes the 10th amendment a tautology--it doesn't disallow any federal action that isn't otherwise disallowed.
ameister14 14y ago
Up until the middle of the Rhenquist court the 20th century saw an incredible expansion of the powers of the Federal government, mostly through Commerce. So, I can't really see how ignoring the 10th is a new thing. It's ineffectual as a limit on Federal power because other clauses of the Constitution allow for any expansion or contraction of Federal power you could want, and what swings the argument is the legacy of precedent.
- Strang 14y ago
  I don't see it as a new thing, depending on your definition of "new thing." I think the rolling back of federalism and the Tenth Amendment mostly dates to the beginning of the 20th century, with most of the heavy lifting handled by Wilson and FDR. And although you are correct that prevailing interpretations of the Constitution allow for arbitrary Federal power, I don't believe that those interpretations are supported by the plain text nor by historical understanding of the Constitution.
  - rayiner 14y ago
    The decline of federalism has much to do with the 13th/14th/15th amendments and the Civil War. Between the Civil War and the Civil Rights Era, it became apparent the states could not be trusted. Thus the 14th amendment gives the federal government explicit power to legislate against the states in certain circumstsances, and incorporation of the Bill of Rights through the 14th amendment has dramatically limited state power in other areas. Most of the rest of the change in the balance of power has come from the changing nature of the economy. Both the plain text and the early interpretations of the Commerce Power (Gibbons v. Ogden in 1824, a mere 35 years after the ratification of the Constitution) support the modern exercise of federal power. What is different is that in 1789, most people lived on farms, grew their own food, made their own clothes, etc. Very little human activity came within the scope of the commerce power, as broad as that power was defined. Today, just this post involves an interstate electronic transaction. It's nearly impossible to buy clothes that weren't made in a foreign country. Etc. Nearly all activity comes within the scope of federal power because nearly all activity is commercial and either interstate or international in nature.
- 14y ago

by Strang 14y ago

rayiner 14y ago

That's incorrect. It's actually "only now" that the 10th amendment is being interpreted as an affirmative limitation on federal power. Historically, the 10th amendment was considered a mere truism. U.S. v. Darby (1941). Conceptually, how the Constitution works is as follows. The states inherited the sovereignty and unlimited power of the British parliament. In aggreeing to the Constitution, the states delegated some of that power to the federal government, and agreed to refrain from the exercise of certain other powers. The clauses of the Constitution outline the powers delegated and prohibited. All the 10th amendment says is that anything that hasn't been delegated or prohibited hasn't been delegated or prohibited. Which is tautological. The mere face of the text cannot support an interpretation that the 10th amendment does anything other than state the obvious. If a federal action is otherwise Constitutional, by virtue of falling into one of the delegations, then it is by definition something that has not been reserved to the state.

Strang 14y ago
The Progressive movement's attempts to circumvent federalism date to the beginning of the 20th century, so you can hardly cite a 1941 case to defend your assertion. That was four years after FDR's court packing scheme and eight years after the formation of the National Recovery Administration. As far as I can tell, you only see the Tenth Amendment as a tautology because you take for granted the makeup and principles of the American government. It was not at all a given at the time that the Federal government would leave sovereignity to the states and only exercise certain defined powers. For example, it has largely ceased to do so today, in violation of the Tenth Amendment.
crusso 14y ago
All the 10th amendment says is that anything that hasn't been delegated or prohibited hasn't been delegated or prohibited. Which is tautological. The States battled over the wording of each amendment. Many of the debate texts and the notes from the Founders are still available. How an attorney with the Internet at his fingertips could maintain a contrary delusion is really disturbing to me. There were no throwaway/meaningless amendments in the Bill of Rights. The Tenth Amendment means exactly what it says it means. The States barely allowed the Federal Government to have any power under the Articles of Confederation. The Constitution was an effort to allow more power to the Federal Government, but certainly not limitless arbitrary powers... thus the Ninth and Tenth Amendments.
- rayiner 14y ago
  The federal government would not have unlimited power without the 9th and 10th amendments--the rest of the Constitution explicitly limits it to the enumerated powers and those necessary and proper to carry out the enumerated powers. Which is precisely what makes the 10th amendment a tautology--it doesn't disallow any federal action that isn't otherwise disallowed.

ameister14 14y ago

Up until the middle of the Rhenquist court the 20th century saw an incredible expansion of the powers of the Federal government, mostly through Commerce. So, I can't really see how ignoring the 10th is a new thing. It's ineffectual as a limit on Federal power because other clauses of the Constitution allow for any expansion or contraction of Federal power you could want, and what swings the argument is the legacy of precedent.

Strang 14y ago
I don't see it as a new thing, depending on your definition of "new thing." I think the rolling back of federalism and the Tenth Amendment mostly dates to the beginning of the 20th century, with most of the heavy lifting handled by Wilson and FDR. And although you are correct that prevailing interpretations of the Constitution allow for arbitrary Federal power, I don't believe that those interpretations are supported by the plain text nor by historical understanding of the Constitution.
- rayiner 14y ago
  The decline of federalism has much to do with the 13th/14th/15th amendments and the Civil War. Between the Civil War and the Civil Rights Era, it became apparent the states could not be trusted. Thus the 14th amendment gives the federal government explicit power to legislate against the states in certain circumstsances, and incorporation of the Bill of Rights through the 14th amendment has dramatically limited state power in other areas. Most of the rest of the change in the balance of power has come from the changing nature of the economy. Both the plain text and the early interpretations of the Commerce Power (Gibbons v. Ogden in 1824, a mere 35 years after the ratification of the Constitution) support the modern exercise of federal power. What is different is that in 1789, most people lived on farms, grew their own food, made their own clothes, etc. Very little human activity came within the scope of the commerce power, as broad as that power was defined. Today, just this post involves an interstate electronic transaction. It's nearly impossible to buy clothes that weren't made in a foreign country. Etc. Nearly all activity comes within the scope of federal power because nearly all activity is commercial and either interstate or international in nature.
14y ago