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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

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.
rayiner 14y ago
There is nothing in the 10th amendment to ignore. Take the individual mandate, for example. It was fund to be outside the Commerce Power, but within the Taxing Power. What does the 10th amendment have to say about it? If you read the 10th amendment as saying "Congress shall not infringe on the traditional functions of the states to safeguard health, welfare, and morality" then you might say that the individual mandate violates the 10th amendment because healthcare is a traditionally state function. But that's not what the 10th amendment says. All it says is that action which falls outside the Constitutional delegates is unconstitutional. Well if the individual mandate is within the Taxing power, then it is within one of the Constitutional delegations, and is by definition outside the scope of the 10th amendment. Basically, federal action can never violate the 10th amendment. Either an exercise of federal power is Constitutional under one of the delegations, or it is not supported by any delegation of federal power and is thus unconstitional for that reason. Re: the expansion of federal power, it's popular but not necessarily accurate to say it has come at the expense of the Constitution. If you had asked the Framers whether a sale of a product in New York, manufactured and shipped from New Jersey, using a bank transaction with a bank and a payment processor located in San Francisco should fall under the purview of the Commerce Power, they probably would have said "yes, that's interstate commerce." Yet, that's what happens when I go downstairs and buy a Snickers bar at the vending machine with my credit card. There is disagreement on this subject, but in my opinion the expansion of federal power hasn't come at the expense of the Constitution, but has come because much more human activity has come within the scope of federal power as it was already defined.
- Strang 14y ago
  But the only reason that Constitutional justification is even required for the individual mandate is that we have a Tenth Amendment. Again, you only see the Tenth Amendment as a tautology because you take it for granted. There is no guarantee or convention that nations govern themselves this way. In fact, most don't. (Including America, in practice.)
  - rayiner 14y ago
    You're conflating the 10th amendment with the general principle that the federal government must trace its actions to enumerated powers. That principle does not come from the 10th amendment, which wasn't even ratified until two years after the Constitution.

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.

rayiner 14y ago

There is nothing in the 10th amendment to ignore. Take the individual mandate, for example. It was fund to be outside the Commerce Power, but within the Taxing Power. What does the 10th amendment have to say about it? If you read the 10th amendment as saying "Congress shall not infringe on the traditional functions of the states to safeguard health, welfare, and morality" then you might say that the individual mandate violates the 10th amendment because healthcare is a traditionally state function. But that's not what the 10th amendment says. All it says is that action which falls outside the Constitutional delegates is unconstitutional. Well if the individual mandate is within the Taxing power, then it is within one of the Constitutional delegations, and is by definition outside the scope of the 10th amendment. Basically, federal action can never violate the 10th amendment. Either an exercise of federal power is Constitutional under one of the delegations, or it is not supported by any delegation of federal power and is thus unconstitional for that reason. Re: the expansion of federal power, it's popular but not necessarily accurate to say it has come at the expense of the Constitution. If you had asked the Framers whether a sale of a product in New York, manufactured and shipped from New Jersey, using a bank transaction with a bank and a payment processor located in San Francisco should fall under the purview of the Commerce Power, they probably would have said "yes, that's interstate commerce." Yet, that's what happens when I go downstairs and buy a Snickers bar at the vending machine with my credit card. There is disagreement on this subject, but in my opinion the expansion of federal power hasn't come at the expense of the Constitution, but has come because much more human activity has come within the scope of federal power as it was already defined.

Strang 14y ago
But the only reason that Constitutional justification is even required for the individual mandate is that we have a Tenth Amendment. Again, you only see the Tenth Amendment as a tautology because you take it for granted. There is no guarantee or convention that nations govern themselves this way. In fact, most don't. (Including America, in practice.)
- rayiner 14y ago
  You're conflating the 10th amendment with the general principle that the federal government must trace its actions to enumerated powers. That principle does not come from the 10th amendment, which wasn't even ratified until two years after the Constitution.