10th amendment discussion

[Alferd_Packer]

This came up in the “We The People” thread, and I am starting a new thread to explore this a little.
The 10th amendment states: ” 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”

IMO, this is one of the most useless amendments to the constitution. It was put into the bill of rights to mollify the slave states who were afraid that the federal government would take action to outlaw slavery.

Not only was it rather superfluous when it was added, but it was also largely nullified by the privileges and immunities clause of the 14th amendment.

Just what powers are there that are exclusive to the state?

Commerce: OK, the state can regulate hairdressers and plumbers, and other trades that are not likely to be practices over state lines. However, in this day and age, any business with a web store is conducting interstate commerce and thus can be regulated by the federal government.

Medical marijuana: OK, if it’s grown in-state and used in-state, there might be an argument that it is outside the purview of federal regulations. You would have to ensure that there is no nexus to any federal funding or other programs, however.

But seriously? What powers does the state have exclusive of the federal government?

 

[Alt+F4]

What powers does the state have exclusive of the federal government?

Requirements for: high school graduation, marriage, divorce, driver's license, speed limits, voter registration.

 

[seayakin]

I don't know the answer to your question, but it begs the question, what should be regulated by states and what should be regulated by the federal government. I know for a state like Rhode Island, lots of contractors get licensed in both Massachusetts and Rhode Island so they can practice in both states. I knew a lawyer who failed the bar in RI but passed it in MA so he could only practice in MA.

 

[Alferd_Packer]

Requirements for: high school graduation, marriage, divorce, driver's license, speed limits, voter registration.

high school graduation: not necessarily. Most school systems receive extensive funds from the federal government and as suck are required to comply with federal laws. Therefore, this is not exclusive to the state. Furthermore, School systems are regulated by the bill of rights and other federal civil rights laws. For instance, the State of Alabama can not pass a law stating that only white people can graduate High School.

marriage: insofar as the state requirements do not violate basic civil rights and equal protection requirements. See Loving v. Virginia.

divorce: Same as above. Note also that the full faith and credit clause applies to both of the above.

driver's license: The Equal Protection clause of the 14th amendment applies here, thus this is not a power exclusive to the state.

speed limits: No. Just because Congress repealed the Federal Speed Limit does not mean that they have given up the power to regulate it. Delegation of power is not the same thing as tenth amendment power.

voter registration; Regulated as per Federal Civil Rights and Voting rights statutes and constitutional amendments.

None of the above are exclusive powers of the state. Some have been delegated to the state, but that is not the same as being an exclusive power of the state.

My argument is thus: as long as the privileges and immunities, and the equal protection clauses exist in the 14th amendment, the 10th amendment is moot.

States might have power over internal administrative matters, but all major functions that interact with citizens can be regulated by the federal government.

 

[Alferd_Packer]

I don't know the answer to your question, but it begs the question, what should be regulated by states and what should be regulated by the federal government. I know for a state like Rhode Island, lots of contractors get licensed in both Massachusetts and Rhode Island so they can practice in both states. I knew a lawyer who failed the bar in RI but passed it in MA so he could only practice in MA.

Like I said, licensure of personal service type professions that do not cross state lines, is an exception, but even there, the states can not establish requirments that violate civil rights. So even there, you could argue that there is some federal oversight.

Furthermore, some of these distinctions are rapidly dissapearing in the internet age.

 

[JoeTheJuggler]

Medical marijuana: OK, if it’s grown in-state and used in-state, there might be an argument that it is outside the purview of federal regulations. You would have to ensure that there is no nexus to any federal funding or other programs, however.

In Gonzales v. Raich the SCOTUS ruled that even home-grown pot used only by the grower in states that have legalized medical marijuana can be prohibited by Congress.

But seriously? What powers does the state have exclusive of the federal government?

It's still an issue that comes up in a lot of cases. If the issue at controversy is only an issue at state law and there is no federal issue (no civil rights violations, for example), federal courts ought not re-examine state decisions.

ETA: For example, the crime of murder of a regular citizen that doesn't involve any interstate issues doesn't involve federal law (unless there is a violation of federal law in how the case was handled--such as failure to respect the rights of the accused).

 

[Alferd_Packer]

It's still an issue that comes up in a lot of cases. If the issue at controversy is only an issue at state law and there is no federal issue (no civil rights violations, for example), federal courts ought not re-examine state decisions.

State laws that do not have any federal nexus are typically administrative laws. I agree that the Federal Government does not need to get involved in local state administrative disputes and municipal ordinance issues that do not have a federal nexus.

I guess my point is, that except for some trivial adminstrative laws, the states have very little power that isn't in some way subect to federal power. Certainly none of the isssues the States Rights groups want to push are exempt.

 

[JoeTheJuggler]

My argument is thus: as long as the privileges and immunities, and the equal protection clauses exist in the 14th amendment, the 10th amendment is moot.

I think you're confusing the issues here. The 14th Amendment doesn't make the 10th moot. The 14th (the part we're concerned about) says that every person is entitled to equal protection of the laws--including state laws. The 10th says that other than the powers specifically granted to the federal government, all other powers go to the states (or the people).

For purposes of this discussion, the 14th says, if states make laws that are in those powers reserved to the states (marriage, for instance), they have to apply them equally to all people. The 10th says Congress can't make laws outside the authorities granted to it.

Now the Commerce Clause authority of the federal government has become a vast one, but it is still a limited authority. It can only regulate matters that have a significant effect on interstate commerce (as in the marijuana laws).

At any rate, the 10th amendment is not moot. It is still used. Here is an example of a recent SCOTUS decision that upheld the petitioner's standing (reversing a lower federal court decision) to assert a 10th Amendment claim:

http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

Held: Bond [the petitioner] has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States.

Perhaps more to the point, the case challenging the constitutionality of DOMA (Massachusetts v. U.S. Department of Health and Human Services) is a 10th Amendment case. The District Court judge has ruled that DOMA is unconstitutional because it violates the 10th Amendment.

 

[JoeTheJuggler]

State laws that do not have any federal nexus are typically administrative laws. I agree that the Federal Government does not need to get involved in local state administrative disputes and municipal ordinance issues that do not have a federal nexus.

I guess my point is, that except for some trivial adminstrative laws, the states have very little power that isn't in some way subect to federal power. Certainly none of the isssues the States Rights groups want to push are exempt.

That's not true. Most of criminal law is state law. Much of civil law is too. The federal government can make sure those laws are in line with the constitution and that they're applied equally, but Congress can't make laws that preempt them.

They can make laws that supplement them (as when there is an interstate issue involved).

If I get into a fight with a fellow resident of my state, assault and battery criminal charges and the civil tort of assault and battery are both matters of state law. While there are federal drug laws, much of it is state law. Ditto traffic laws, DWIs, etc. etc.

It's not at all true to say that state law is limited to trivial administrative matters.

ETA: And "in some way subject to federal power" isn't really the issue. The issue is that Congress can't pass laws on areas that are reserved for the states (that is outside the areas specifically enumerated as being the powers of the federal government). Of course the Founding Fathers wanted ALL laws to be subject to the judiciary authority. And they wanted all laws to respect fundamental rights they laid out. (As such, I think the 14th Amendment was an inevitable correction of language. For example, I don't believe the founding fathers wanted the First Amendment to prohibit the establishment of a national church but to allow the establishment of state churches.)

ETA: I was looking for prisons stats as a way of evaluating the "trivial" claim. (This at least gives us a very rough idea of proportionately how many people are convicted of criminal charges under state law vs. federal law.) Best I can tell, as of January 2010, there were 1,404,053 inmates of state prisons, and the current weekly population report for federal prisons is 216,976.
Source and source, respectively.

 

[JoeTheJuggler]

I would buy the argument, though, that the 10th Amendment wasn't necessary since the same principle can be deduced from the body of the Constitution. The authorities of Congress are enumerated; what states cannot do--without the consent of Congress-- is spelled out; the Supremacy Clause anticipates that there might be times when both levels of government pass conflicting legislation and tells how to resolve it (if it's within an enumerated authority of Congress, the federal law is supreme).

However, since these bits are distributed here and there in the Constitution body, it's certainly convenient to have the principle stated explicitly so that one can refer to it (and arguments made using it) by a nice convenient name. Also, since the body doesn't explicitly say that anything outside the enumerated powers of Congress not prohibited is the states' sole bailiwick, it is good to have it stated explicitly.

 

[Alt+F4]

high school graduation: not necessarily. Most school systems receive extensive funds from the federal government and as suck are required to comply with federal laws. Therefore, this is not exclusive to the state. Furthermore, School systems are regulated by the bill of rights and other federal civil rights laws. For instance, the State of Alabama can not pass a law stating that only white people can graduate High School.

The requirements (curriculum)to achieve a high school diploma are determined by the states, not the federal government. For example, in New York State, where I teach, students are required by the State of New York to pass five exams known as Regents Exams. This is not the case in New Jersey which has it's own, different tests. There is no federal law regarding the requirements for a high school diploma.

marriage: insofar as the state requirements do not violate basic civil rights and equal protection requirements. See Loving v. Virginia.

divorce: Same as above. Note also that the full faith and credit clause applies to both of the above.

No way. Full faith and credit does NOT apply to marriage as there is gay marriage in only six states, and the federal government does not recognize any of them. In addition, try getting a divorce in New York State vs. Nevada...very different laws apply.

driver's license: The Equal Protection clause of the 14th amendment applies here, thus this is not a power exclusive to the state.

No way, again. How can the 14th Amendment apply to driver's licenses (I'll leave out the fact that there were no cars in 1868), when the age for a driver's licence in the U.S. ranges from 16 to 21?

speed limits: No. Just because Congress repealed the Federal Speed Limit does not mean that they have given up the power to regulate it. Delegation of power is not the same thing as tenth amendment power.

No way, again, again. Please explain to me what the role of the federal government had in the law that allows me to drive at 55 in some parts of NYS and at 65 in other parts of the same state.

voter registration; Regulated as per Federal Civil Rights and Voting rights statutes and constitutional amendments.

49 states require voters to be registered, one doesn't (I think one of the Dakotas).

States might have power over internal administrative matters, but all major functions that interact with citizens can be regulated by the federal government.

Wrong, wrong, wrong. I'm in a legal gay marriage that while the federal government does not recognize it, it is legal, and yeah, it's a major function in which I interact with another United States citizen.

 

[Alferd_Packer]

No way. Full faith and credit does NOT apply to marriage as there is gay marriage in only six states, and the federal government does not recognize any of them. In addition, try getting a divorce in New York State vs. Nevada...very different laws apply.

But they are equally valid.

 

[Alt+F4]

But they are equally valid.

How are they equally valid, legally? I'm considered married in New York State but not if I drive five miles to New Jersey. The federal government requires that the money my employer pays for my spouse's health insurance be considered part of my income, which I am then taxed on. My marriage is considered valid in the U.S. only in six states and in the District of Columbia.

 

[JoeTheJuggler]

Again, what the 14th Amendment does and what the 10th Amendment does are two different things. The 14th does not make the 10th moot.

And again, state law is not limited to areas of "trivial administration" rules. The authority of the federal government is still limited.

The fact that all state laws still have to be Constitutional, and are therefore subject to review by the federal judiciary does not mean that there is no longer any authority reserved for the states.

 

[Robert Prey]

This came up in the “We The People” thread, and I am starting a new thread to explore this a little.
The 10th amendment states: ” 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”

IMO, this is one of the most useless amendments to the constitution. It was put into the bill of rights to mollify the slave states who were afraid that the federal government would take action to outlaw slavery.

Not only was it rather superfluous when it was added, but it was also largely nullified by the privileges and immunities clause of the 14th amendment.

Just what powers are there that are exclusive to the state?

Commerce: OK, the state can regulate hairdressers and plumbers, and other trades that are not likely to be practices over state lines. However, in this day and age, any business with a web store is conducting interstate commerce and thus can be regulated by the federal government.

Medical marijuana: OK, if it’s grown in-state and used in-state, there might be an argument that it is outside the purview of federal regulations. You would have to ensure that there is no nexus to any federal funding or other programs, however.

But seriously? What powers does the state have exclusive of the federal government?

The power to make no thing but Gold and Silver coin a tender in payment of debt.

 

[Alferd_Packer]

The power to make no thing but Gold and Silver coin a tender in payment of debt.

Er, what?

You aren't making much sense here.

 

[JoeTheJuggler]

The power to make no thing but Gold and Silver coin a tender in payment of debt.

Er, what?

You aren't making much sense here.

I think examples of "automatic writing" belong in the Paranormal subforum!


I have no idea what he's talking about, but if I had to guess, I suppose it has something to do with this bit of Tea Party foolishness:

http://www.nytimes.com/2011/05/30/us/30gold.html

ETA: He's quoting from Article 1 Section 10 (which lists limitations to the authority of the states), but of course it's misleading to quote that little snippet while ignoring the part in Section 8 that gives Congress the authority to coin money--especially if he's purporting to answer the question you asked, "What powers does the state have exclusive of the federal government?"

 

[Suddenly]

10th amendment in a nutshell: The federal government is limited to the powers granted to it by the Constitution.

More or less tautological and really adds nothing, but what it makes clear again is that the federal government is one of limited jurisdiction as defined by the Constitution. States have general police powers; the federal government does not.

The whole issue is confused by the commerce clause, as it is hard to find aspects of life that do not at least affect interstate commerce under the standards applied by the courts. There are a few, but they tend to be obscure by definition. Pretty much any time someone brings up the 10th amendment they are complaining about the expansive reading of the commerce clause.

 

[JoeTheJuggler]

10th amendment in a nutshell: The federal government is limited to the powers granted to it by the Constitution.

More or less tautological and really adds nothing, but what it makes clear again is that the federal government is one of limited jurisdiction as defined by the Constitution.

I'd say what it adds and makes clear is that any authority not given to the fed and not forbidden to the states goes to the states or the people.

I think it's logically there in the body of the Constitution (since the powers of Congress are enumerated, and only what states can't do laid out), but I suppose it could possibly be construed otherwise if it weren't explicitly stated in the 10th Amendment.

At any rate, it makes it a lot easier to talk about the concept by having it explicitly stated.

 

[Dancing David]

This came up in the “We The People” thread, and I am starting a new thread to explore this a little.
The 10th amendment states: ” 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”

IMO, this is one of the most useless amendments to the constitution. It was put into the bill of rights to mollify the slave states who were afraid that the federal government would take action to outlaw slavery.

Not only was it rather superfluous when it was added, but it was also largely nullified by the privileges and immunities clause of the 14th amendment.

Just what powers are there that are exclusive to the state?

Commerce: OK, the state can regulate hairdressers and plumbers, and other trades that are not likely to be practices over state lines. However, in this day and age, any business with a web store is conducting interstate commerce and thus can be regulated by the federal government.

Medical marijuana: OK, if it’s grown in-state and used in-state, there might be an argument that it is outside the purview of federal regulations. You would have to ensure that there is no nexus to any federal funding or other programs, however.

But seriously? What powers does the state have exclusive of the federal government?

Well there is the notion of sovereign immunity which is Illinois is used by some state agencies to say that they are not required to follow federal guidelines like provisions the ADA and other strange things, even though the legislature legislated it into not existing, except as provided in legislation. Or something like that...

I think it was also enacted to curb the rise of Federal power in many ways, but hey the State Militias are the National Guard now, etc...