:|WRT the US, take a look at Amendment X for further details.
Ahhhhhh, Amendment 10
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To Understand the Tenth Amendment, it is important to know that the
constitution delegates, or gives, certain powers to the federal government.
Most of these powers are actually enumerated, or named. . .
The federal government has other powers besides those clearly
listed in the Constitution. These are implied, or unstated, powers. of
They cover a variety of matters. The Constitutions states that Congress
shall "make all Laws which shall be necessary proper for carrying into
Execution the foregoing Powers and all other Powers vested by this
Constitution in the Government of the United states." This "'necessary and
proper"clause (or elastic clause) gives the federal government the legal
right to exercise the implied power that is connected to its clearly listed
powers. For example, the federal government has the enumerated power to
make laws concerning trade between states. That power has been stretched
to include things not specifically listed in the Constitution such as
regulating air, bus, train, and truck transportation between states. The
federal government also regulates TV and radio. The issue of implied
powers was first raised by Chief Justice John Marshall
The Constitution also gives part of the federal government
Congress-the power "to provide for the ... general welfare of the United
States." Under this power, the federal government has done many things not
listed in the Constitution. For example, the federal government has built
dams and flood control projects. It has set up national parks. It has
established a billion dollar system of social security benefits for older
citizens and for the disabled and poor.
The federal government also shares certain powers with the states.
These concurrent, or shared, powers include setting and collecting taxes,
passing criminal laws on the same matter, and spending money for-the good
of the public.
The Constitution also names particular things that the states may
not do. For instance, states may not enter into treaties with countries.
Nor may states make laws that interfere with contracts or give people
titles of nobility (such as "count" or "duchess"). States are also
prohibited from coining money.
The states have thousands of powers. Every state creates and
controls its own government and sets voting requirements for its citizens.
The state controls local business, labor, and professions, as well as the
ownership, use, and sale of property. The state has tremendous
responsibility for looking after its citizens' health and welfare. It has
the power to set and collect taxes for these purposes. Looking out for its
citizens means controlling schools, hospitals, roads, and other public
services. It means making laws that require vaccinations and limiting
automobile exhaust fumes. It means outlawing forms of gambling and
forbidding ownership of dangerous weapons. It means establishing highway
speed limits and controlling the sale and use of alcoholic beverages. It
can also mean forbidding the sale of soft drinks if they are in bottles or
cans that aren't accepted for return.
From the beginning, the states kept some of these important powers
for themselves. After all, the Tenth Amendment says that all powers not
given to the federal government or forbidden to the states are reserved
to-that is, belong to-either the states or the people.
The Preamble, or first part, of the Constitution begins with the phrase,
"We the People. . ." and ends with". . . do ordain and establish this
Constitution for the United States of America.," All the powers that the
Constitution of the United States gives, both to the states and to the
federal government, flow directly from the people.
Now think about what the Tenth Amendment is really saying:
All powers that are not given to the federal government or forbidden to the
states belong-- either to the states or to the people. The Tenth Amendment
really seems to be setting limits on the power of the federal government.
Yet this is exactly what the main part of the Constitution itself does. In
fact, many scholars believe that the Tenth Amendment only repeats what is
said in the Constitution. If this is true, then why has the Tenth
Amendment been interpreted--its meaning studied and debated--over and over
again?
To answer this question, compare the wording of the Tenth Amendment
with these travel directions: , 'Drive 14.2 miles. Turn left just before
the bridge. Continue for two blocks. Stop at the bank on your right." How
detailed is the amendment compared with the travel directions? Does the
amendment give an exact road map for the constitutional traveler? The
answer is clearly no.
Some scholars believe that those who wrote the Tenth Amendment
purposely made it vague, or fuzzy. Why would they want to do that?
Article 11 of the Articles of Confederation (ratified in 1781) will help
to explain this. Article 11, like the Tenth Amendment that came after it,
deals with the power of state governments and the federal government. But
Article 11 includes a key word that is not found in the Tenth Amendment.
Pay special attention -to the underlined [capitalized] word as you read the
Article:
Each State retains its sovereignty [power not controlled by any other
power], freedom and independence, and every power, jurisdiction and right,
which is not by this confederation EXPRESSLY delegated to the United
States, in Congress assembled. [underlining-capitalized- added]
The word expressly means " directly " or " specifically. " A sign in a
restaurant that sets aside one area expressly for nonsmokers means "Keep
out of this area if you wish to smoke!" A Congress that has only those
powers expressly delegated to itself is also limited. It may do only those
things that the Constitution actually names as its fight. It may not do
anything more. The U.S. government under the Articles of Confederation was
called a body without a head. It was the word expressly that had chopped
the head off that national body.
Those who were present at the 1787 Constitutional Convention knew
how Article II of the Articles of Confederation had weakened the federal
government earlier. Delegates who attended the state conventions to ratify
the Constitution probably knew it, too. The word expressly didn't bother
the Anti-Federalists. In fact, they pressed hard to have the word
expressly included in any amendment about the "reserved powers" of the
states.
After the Constitutional Convention had approved the Constitution,
the states held their own conventions to make decisions about ratifying it.
The Federalists had tried hard to persuade state delegates to vote for the
Constitution. They convinced the delegates that amendments should be
decided on separately from the Constitution itself. The states therefore
came up with various ideas for amendments. Massachusetts, New Hampshire,
New York, South Carolina, and Virginia all wrote amendments that reserved
to the states those powers not delegated to the central government. Except
for Virginia, all of these states wanted the new amendment to keep for the
states all powers ,"expressly " or "clearly," delegated to the federal
government.
On June 8, 1789, James Madison introduced the various state
amendments to Congress. His wording for the "reserved powers" amendment
stated: "The powers not delegated to this constitution, nor prohibited by
it to the States, are reserved to the States respectively." When the Senate
approved the amendment on September 7, 1789, it included the words "or to
the people." Both the Senate and the House of Representatives accepted the
amendment as the twelfth and last one. Then, after two other amendments
were rejected, the "reserved powers" amendment moved up two places and
became the tenth amendment in the list. After Congress voted to propose
the ten amendments known as the Bill of Rights, it was up to the states to
ratify these amendments. In 1791 the Tenth Amendment and the other nine
amendments were finally ratified.
Remember, the Tenth Amendment did not include the word expressly.
What effect would this have on the way in which the amendment was received?
As you may have guessed, it left the door wide open for different
interpretations of federal powers.
SOURCE OF INFORMATION: The American Heritage History of the Bill of Rights,
The Tenth Amendment, Judith Adams, Silver Burdett Press. (1991) pp 31-36
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"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."
That's the Tenth Amendment. It's a cut-and-paste job of a part of the
Articles of Confederation that limited the Confederation government to
powers not EXPRESSLY delegated to it by the Articles. James Madison
carefully knocked the word "expressly" out of the text of the amendment so
that it would not prevent the federal government from exercising powers not
expressly provided by the Constitution but implied by its provisions and
not specifically barred.
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THE BILL OF RIGHTS & THE TENTH AMENDMENT
. . . The great national debate continued unabated as the
confederationalist school caused another kind of impasse, as many States
made their demands for a Bill of Rights known. Many agreed to ratify the
Constitution with the provision that a Bill of Rights would be attached
with all due haste after its ratification. There was some that insisted
that it not be ratified without it, but those who had toiled over its
drafting were convincing in their protests that they were not optimistic
about a second convention being successful. The first had barely escaped an
impasse. So the Constitution was ratified with the understanding that a
Bill of Rights would be submitted for ratification immediately afterwards.
The Preamble to the Bill of Rights reflects this demand, in much softer
language:
"The conventions of a number of the States having at the time of their
adopting the Constitution, expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory and
restrictive clauses should be added..."
Some States even went so far as to include their right to secede from the
Union in their ratifying documents. This could not be easily denied,
especially at the time, and it sent a clear message to the new Congress - a
Bill of Rights or face the secession of States from the "more perfect
union", the shortest lived union of its kind in all time. Some were opposed
to creating such a Bill, but political expediency won the day and a Bill of
Rights was produced that satisfied many of the demands of the
confederationalist school. Of particular note was the Tenth Amendment that
many States had specifically demanded:
"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."
The Tenth Amendment is a more generally worded version of reserved rights
of the State governments that is found in Article II of the Articles of
Confederation. What was not included in Article II are any references to
the people, which reflects what the ratifiers of the Constitution had come
to believe was the nature of the new Constitutional Federalism.
http://www.ktas.org/confed2.htm
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THERE HAVE BEEN ATTEMPTS TO UNDERMINE WHAT
THE FOUNDERS PASSED BY ADDING THE WORD EXPRESSLY
TO THE TENTH AMENDMENT:
THE BATTLE OVER THE TENTH AMENDMENT:
OPENING A SECOND FRONT
PETE DU PONT*
http://www.ncpa.org/oped/dupont/10am.html
Perhaps it is the structure of the Constitution that has enabled the
federal judiciary to run roughshod over the Tenth Amendment. As one
commentator has observed, "whatever the Founders' intentions, the rules
they wrote are skewed in favor of national power."9
A plan for a sustained devolution of power from centralized government
might be accomplished through three mechanisms: a federalism statute; a
federal statute narrowing the jurisdiction of the federal courts, and a
constitutional amendment further clarifying the Tenth Amendment itself.
A Federalism Statute. The most effective way to focus the federal
judiciary's attention on the importance of the Tenth Amendment, and to make
sure that the federalist structure of government it commands is reinstated,
is to force such ideas on the federal judiciary using congressional powers.
A federalism statute with the purpose of both instructing the federal
courts and empowering state governments would contain half a dozen
elements, each of which is intended to promote a greater recognition of
state and local governments' rights and to codify the intentions of
Congress for its future role vis-a-vis the States.
First, the statute should contain a statement of principles to guide the
judiciary in the application of the Tenth Amendment. Justice Thomas'
dissent in the Term Limits case provides them:25
* the federal government enjoys no authority beyond what the
Constitution confers -- its powers are limited and enumerated;
* the States can exercise all powers that the Constitution does not
withhold from them; and
* where the Constitution is silent about the exercise of a power, the
federal government lacks it and the States enjoy it.
In addition to a statement of principles, the statute should state that the
Tenth Amendment is intended to provide substantive limits on Congress'
power; that the States need not rely solely on the political process for
protection against burdensome Congressional exercise; and that the
protections afforded the States by the Tenth Amendment should be enforced
by the judiciary when Congress oversteps its boundaries and infringes on
state sovereignty. The U.S. Supreme Court has not abandoned these concepts
entirely, as indicated by its 1992 decision in New York v. United States,26
in which the Court struck down a portion of The Low Level Radioactive Waste
Policy Amendments Act of 198527 as an impermissible Congressional mandate
for states to regulate their citizens. But a codification of these
principles is an important step in strengthening Tenth Amendment viability
in the eyes of the courts.
Finally, the statute should follow with four specific statements of
Congressional self-limitation:28
1. A statement that there shall be no preemption of state and local
authority unless Congress expressly declares its intent to do so. This
"clear statement" requirement in areas where Congress may be impeding state
powers is important to the concept of political accountability. Only with
full and accurate understanding of both who is making decisions and what
decisions have been made can the people in a democracy make an informed
decision as to the policies they desire to be implemented and who shall
represent them in carrying out those policies.29
2. A statement that all federal laws and administrative regulations issued
pursuant thereto shall not be interpreted by the courts to infringe in any
material way upon the authority and capacity of state and local governments
to perform their basic and traditional functions, unless expresslydeclared
by Congress.
3. A provision prohibiting Congress from imposing conditions on federal
grants unless such conditions are expressly stated, are reasonable, and
have a direct relationship to the program being funded. This provision goes
further than the Court would have allowed in the New York v. United States
case, in which the Court acknowledged that conditions attached to the
receipt of federal funds must "bear some relationship to the purpose of the
federal spending . . . ."30
4. A limitation on federal mandates, drawn from the "Headlee amendment"
approved in Michigan to that state's constitution.31 Such an amendment
would restrict the federal government from mandating programs to state and
local governments without appropriating the money necessary to comply with
the mandates. Unfunded mandates undermine political accountability, by
placing the selection of policies in Washington and the execution of them
in state capitals.
A Federal Statute Narrowing the Jurisdiction of the Federal Courts. Further
Congressional action in support of a federalist system of government could
be achieved by utilizing the "Exceptions Clause" of Article III of the
Constitution to remove jurisdiction from the federal courts on certain
federalism issues.32 Although rarely invoked, the power of Congress to
limit the jurisdiction of federal courts is well established.33 For
example, in 1932 Congress passed and President Hoover signed the Norris
LaGuardia Anti Injunction Act34 utilizing Article III to restrict the
ability of federal courts to intervene in labor strikes.
The Supreme Court, in Lauf v. E. G. Shinner & Co., upheld this attempt by
Congress to limit the jurisdiction of the federal courts, holding that
"[t]here can be no question of the power of Congress to define and limit
the jurisdiction of the inferior courts of the United States." 35
As Chief Justice Harlan F. Stone stated in Lockerty v. Phillips:36 "The
Congressional power to ordain and establish inferior courts includes the
power of investing them with jurisdiction either limited, concurrent, or
exclusive, and of withholding jurisdiction from them in the exact degrees
and character which to Congress may seem proper for the public good."
These constitutional provisions can serve as the foundation of a statute to
remove from the federal courts the power to review matters left to the
States by the Constitution and the Tenth Amendment. While the drafting of a
federal statute to narrow federal court jurisdiction would require careful
thought, its objectives are clear: to restore state power, as envisioned by
the Constitution, over a wide range of issues, including state and local
taxation; the terms of employment of state and local governmental
employees; educational standards, funding and transportation; state
welfare, housing and transportation matters; the drinking age; abortion;
local commerce; and so forth.
An "Exceptions Clause" statute to remove the power of the federal courts
over school bussing might read: "No court of the United States, as herein
defined, shall have jurisdiction to issue any order in a case involving or
growing out of a dispute involving the transportation of students to
achieve a racial balance in schools or classrooms; nor shall any order
regarding the transportation of students to achieve a racial balance in
schools or classrooms be issued contrary to the public policy declared in
this Act."
A Constitutional Amendment. Although more difficult to achieve,
Constitutional amendments offer another viable method of restoring and
strengthening federalist principles. In fact, to settle the issue of
federalism with some degree of finality, a Constitutional amendment would
be the most appropriate solution. The most direct approach would be to
enact a constitutional amendment to clarify the Tenth Amendment, and while
I do not offer the following as draft language of a constitutional
amendment, it does convey the spirit of what needs to be enacted: "The
several states and the people shall have all powers not expressly delegated
herein to the federal government or which are directly necessary to, and
inseparable from, such express powers, whether such powers existed prior
to, or were created after, the ratification of this Constitution; and the
federal government shall have only those powers as are expresslyenumerated
herein or which are directly necessary to, and inseparable from, such
express powers."
* * * *
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You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
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. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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