The whole ‘Tenth Amendment’ business is dumb and crazy
Virginia Attorney General Ken Cuccinelli is one of the leading lights of the 10th Amendment movement, or “The Tenthers,” a peculiar band of U.S. Constitution misreaders, dopes and ignoramuses whose asinine arguments are actually garnering some attention to these days.
Tenthers point to the 10th Amendment to the Constitution in arguing the federal government has overreached in myriad ways. The government, Tenthers claim, lacks constitutional authority in areas of food stamps, child labor, Medicare, Social Security and just about everything else you can think of, including the federal highway system.
They also cite the Tenth Amendment as the justification to for suing to overturn the the Affordable Care Act, aka ObamaCare — and Cuccinelli is leading the charge on those efforts.
Here is the entire text of 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.
Essentially, Tenthers interpret this to mean that unless the U.S. Constitution specifically grants a power to the federal government, the feds can neither assume nor enforce that power. Obviously, the constitution does not explicitly say the federal government can force citizens to buy health insurance. Therefore, the Tenthers hold, that is an issue for the states, period. And they believe that’s how Cuccinelli is going to get the law kicked.
Of course, this completely obscures actions by Tenthers of an earlier era, who used the 10th Amendment as the prime justification for the “States Rights” argument that itself was a smokescreen for the real cause of the Civil War — the South’s insistence on preserving slavery.
But apart from aligning themselves with slaveholders, there’s another more fundamental flaw in the whole modern Tenther argument. In a nutshell, it’s this: Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.
In fact, the larger document directly contradicts the Tenthers’ argument. That’s right — words the founding fathers quite deliberately wrote into the Constitution clearly and effectively rebut the Tenthers’ faulty reasoning.
For example, consider the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The problem for the Tenthers here is that the First Amendment has nothing to do with what Congress can do. It’s all about what Congress can’t do.
And this is where the Tenthers’ entire argument falls apart. Because under Tenther-logic, unless the Constitution permitted the feds to establish religion, or abridge freedom of speech and so on, then the feds would automatically be prohibited from doing it.
Obviously, the founding fathers themselves did not believe that, or they never would have felt the need to write the First Amendment in the first place.
I won’t go to Tenther lengths with this line of reasoning, and mount an argument that because the founding fathers did not prohibit the government from requiring individuals to buy health insurance, that requiring them to buy it is constitutional. I’ll leave that one for the scholars and the courts,
But it’s plainly obvious that the simple language of the First Amendment renders the Tenthers’ interpretation of the 10th Amendment completely bogus.
What’s really going on here is this: the Tenther movement is led by a few smart and cynical people who find economic or political self-interest in Tenther logic. They have won over a much larger bunch of intellectual boobs who can’t be bothered to think for themselves.
And those latter folks are the ones making all the noise.
February 14, 2011 - 8:00 AM
These people simply use this language and these issues to garner support from people who are generally uneducated and illiterate on matters concerning all things government. They have appeal because we are living in rather tumultuous times, where old models of how our economy functions, how we communicate through the use of technology, and how we pay for what we need since our economy has transitioned away from a manufacturing from WITHIN our own borders to an importing nation for much of our consumer goods.
They use simple language that pits disaffected citizens against a self-created boogeyman, the federal government, for what they think is the cause for their apprehension about their slipping-downward lifestyle of lower wages, more costly benefits, zero job security, etc. For a group of extreme right wing folks, what they don’t realize is that the very document they hold-up as the “Holy Grail” of American democracy, they simultaneously seek to dismantle it in order to satisfy their paranoid and irritated delusions.
Have you even noticed that whenever Dan disagrees with someone, he always refers to them as “stupid”, “boobs”, “dopes”, etc.
I sometimes wonder if Dan has a 13 year-old writing his blog while he writes his newspaper columns
There is a phrase that comes to mind: “payday someday”. The way “Obamacare” was passed lacked some transparency to say the least. IMO payday began last November. It will continue until the fee is exacted. The first amendment was given to allow the tenth amendment. Those freedom of speech things get a little testy don’t they.
It’s difficult to take you seriously when you begin this column with name calling and ridiculing language
slightly right,
Tell us what the founding fathers meant when they wrote the 10th. And don’t give us that Articles of Confederation crap — they jettisoned that when the wrote the constitution.
“The Tenthers,” a peculiar band of U.S. Constitution misreaders, dopes and ignoramuses whose asinine arguments are actually garnering some attention to these days”
Arrogant to say the least.
James Salenger,
There is arrogance and then there is Arrogance. The latter occurs when certain people take the words of the founding fathers, twist them 180 degrees away from their original meaning, then round up sheep to form a political movement based on that horrid lie. And then there is name-calling, which pales in comparison. Sticks and stones, you know?
Nobody has rebutted the central argument yet, I note. I don’t think they can.
Tenthers, birthers, teabaggers, dopes, boobs…..your hatred runs deep.
Rounding up sheep for a political movement…..Kind of like promising Hope & Change for everyone?
But Stu,
The terms “tenthers” and “birthers” are not pejorative on their face. They are pretty good shorthand for people who self identify with particular movements. The same goes for teabaggers and, I would note, Tea Party members chose that name for themselves until they realized it already had another context they found humiliating and embarrassing, and then they began whining about it. I don’t use that term to describe them anyway. I call them Tea Partiers and I’ve been pretty consistent with that. When they start whining about THAT term also being objectionable then maybe you will have a stronger argument.
“Dopes” and “boobs” singles nobody out. Those are just other terms that describe fools of all stripes.
So why aren’t the Tenthers fools? Educate us, Stu. . .
#7 It appears that all the ammunition they have, Dan, is to question your “seriousness.”
Stu, It’s a pity that distaste is seen as hatred.
#8 Please show us all where Dan has used teabaggers, Stu (never mind that they used to call themselves that and you still see them wearing teabags on hats etc.). Unless he’s slipped lately, Dan makes a point of not using the term.
Again, Stu, please educate us on what makes the Tenthers’ central argument something other than utter BS.
#9 Still no rebuttal of the actual point, Stu?
There is no twisting of the words Dan. If the constitution (the document) does not explicitly give this power to the federal government then it is reserved to the states. Pretty black and white to read.
BTW, the civil war did not end slavery. The 13th amendment abolished slavery. It was passed legally through the legislative process and ratified to make it constitutional. When ratified, slavery was abolished. Not before.
If you want to nullify the 10th amendment, there is a process to do this. Why don’t you want to go that route Dan?
Actually, the example you cite is perefectly in line. The 1st amendment says congress “shall make no law” and the 10th also says basically that “anything we didn’t cover SPECIFICALLY in 1-9, is herebye covered in #10″. The first 10 amendments of the constitution (also known as the bill of rights) were all passed at the same time Dan.
Whatsamatter Dan, KC and the Sunshine band shining a little light on the illgality of Obamacare? Want some cheese with that whine?
Is it foolish to question something that you don’t trust?
Well, well. BobH is a Tenther! No surprise there, I reckon.
Stu,
It’s not necessarily foolish to question something you don’t trust. But it’s foolish to base your questioning of it on twisted reinterpretations of the same constitutional amendment that slavers used to cite in their desire to preserve slavery.
Ken is rolling up big court victories with his arguments on 0bamacare, so it sounds like the misreaders, dopes, and ignoramuses are the ones on the losing side.
And Bob H completely destroyed Dan’s slavery rant. It wasn’t a law that abolished slavery and therefore supplied a precedent for discrediting tenthers; it took a constitutional amendment.
“are reserved to the States respectively, or to the people.”
I guess this is the part the author has trouble with.
Maybe I am missing something here but the words are simple and
straight-forward. I tend to interpet words literally I do not
look for “true meaning” or try to play the album backwards to
hear the secret message.
For most of us, the words mean what they say, not what you
may wish they say.
gay was a term used to describe someone happy and carefree. The word was “hijacked” by the homosexual movement trying to gain respectability. Teabagging is another word hijacked by that same crowd to demonize an already respectable group. Dan you have drawn in slavery, teabagging, and tenthers to demonize approximately 60% of the population (those that voted out many of the supporters of obamacare. And now “BobH” is a “tenther”. You are now demonized BobH. Shame on you for having an opinion shared by 60% of the population.
“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.”
It appears Dan believes these words are “twisted” into saying what they say.
So am I reading in Mason’s story today that the Roanoke branch of the tea party is even whackier than the “mainstream” tea party, or are they each equally whacky but going about it in different ways?
I do like that Tarbutton acknowledges it will be tough to find a candidate to oppose Edwards who shares ALL of the local Tea Party’s views. Uhh, Chip, doesn’t that tell you a little something — like you are so far out of the mainstream that you’re nearly in outer space?
No Dan, I am not a tenther. I am a 27th amendmenter (in other words ALL of them). Too bad you don’t have much to SAY about what I posted…
You see (or apparently you don’t see) Dan, the first 10 amendments to the constitution were all about what the federal government COULD NOT DO:
1) Can’t establish a religion
2) Right to bear arms shall not be infringed
3) Quartering of troops (government can’t do this)
4) Unreasonable search and seizure
5) Due process cannot be denied
6) Right to a trial by jury cannot be denied
7) Right to a jury in a civil trial cannot be denied
8) Govt. can’t set excessive bail or use cruel and unusual punishment
9) Protection of rights of the people (from govt.) even if not specifically mentioned.
10) In case we missed anything specific in 1-9, it is reserved to the states.
The desire was to mention a lot of them by name but even the ones not mentioned are covered by #10. Kind of like how job descriptions usually have the last task: Other duties as assigned by management. That way a person cannot claim it isn’t in their job description!
No rocket science here Dan. Liberals have used #8 a lot in the past 50 years, are you now saying it means nothing?
What you liberals have a problem in is point of view. You want to see it as though it all belongs to the federal government unless the constitution says they don’t have it and conservatives read what it says in only giving power to the federal government that it specifically mentions.
And Obamacare is going down. Super Cooch will win.
There is arrogance and then there is Arrogance. The latter occurs when certain people take the words of the founding fathers, twist them 180 degrees away from their original meaning, then round up sheep to form a political movement based on that horrid lie. And then there is name-calling, which pales in comparison. Comment by Dan Casey — February 14, 2011 @ 9:35 am…..something similar to the 2008 election wouldn’t you say! Talk about the lies and name calling!
Dan,
Slaver’s were constitutionally correct. It had been upheld by the Supreme Court. That’s why amendment 13 was necessary. If slavery had not been constitutional, amendment 13 would not be part of it.
If you want to do away with Amendment 10, do it the same way slavery was abolished. There is a process to do this, you know…..
Obamacare is going down, get over it.
Isn’t this “tenther” argument the same one that was used to justify the states secession during the Civil War and again during the civil rights years, when trying to oppose allowing blacks the same rights as whites?? It seems anytime these right wing nut jobs want to stir up trouble they start waving the 10th amendment.
Don’t certain parts of the 14th amendment override the 10th amendment… or, at the very least, limit its power?
150 years ago, your argument on slavery & the 10th amendment would have held some water with me, not so much now. The last Civil War veteran died back in the 1950′s.
This is about a government run health care system now, something that a lot of us don’t agree with, or believe is a constitutional right.
Well, Dan, we will have to wait to see how this plays out on health-care mandate.
You were wrong on the issue settled in Heller — namely that 2A was or wasn’t about militia or individuals.
You might (and I said might) be wrong again relative to the question of does or does not the Commerce Clause give national lawmakers the power to regulate a health-care mandate.
It really doesn’t matter what I think, or what you think. What matters is what a specific small group of folk (nine folk to be exact) in DC think.
As to how the nine wise folk have decided what the Commerce Clause allows, try to divine any law’s future by looking at the court’s past constitutional decisions in which the court has ruled on seemingly random actions under the Commerce Clause:
- creating a national bank (yes);
- imposing crop quotas (yes);
- prohibiting guns near schools (no);
- federalizing the crime of domestic abuse (no);
- regulating homegrown marijuana (yes);
etc.
I wouldn’t take a bet either way on what SCOTUS will say about the power delegated to the Congress under the Commerce Clause relative to the health-care mandate.
However, I will make you one bet. SCOTUS will not say anything like your rant:
“…unless the Constitution permitted the feds to establish religion, or abridge freedom of speech and so on, then the feds would automatically be prohibited from doing it.
Obviously, the founding fathers themselves did not believe that, or they never would have felt the need to write the First Amendment in the first place.”
SCOTUS will not say that there is no need for authority under some clause of the Constitution. They will say that there is or there is not the authority to do “x” under clause “y”! Thereby proving your whole rant nonsensical.
If you were even close to being right about 10A, how do you explain all the judges (at all levels) struggling with the question of what power is delegated to the National government under the “commerce clause” or some other clause?
If such power did not need to be delegated there would be no discussion as to “is this power delegated to the National government under “x” clause of the Constitution.
IMHO, you need to read some decisions — including the Court of Appeals’ decisions approving the health-care mandate, each of which address the clause granting the National Government the power for the action taken.
I’m gonna venture a guess that someone who has made their career as a lawyer and is now an Attorney General has probably spent a little more time studying law and the intentions behind how laws were written than someone who’s only intention is to negate whatever someone with a “Republican” nametag says. I don’t really even like the current Attorney General… but this article is really reaching to negate the “tenthers” reasoning. Plus, the name-calling takes away any credibility that this article could have had.
You’re right that the first amendment only talks about what Congress can’t do… and that it’s silly to assume that just because something isn’t mentioned, then it’s automatically prohibited. But, it’s also silly to try to relate that reasoning to the 10th amendment, because the 10th amendment clearly covers both sides and leaves nothing to be assumed.
This is what I wrote: “Of course, this completely obscures actions by Tenthers of an earlier era, who used the 10th Amendment as the prime justification for the “States Rights” argument that itself was a smokescreen for the real cause of the Civil War — the South’s insistence on preserving slavery.”
BobH mischaracterized what I wrote, so that he could criticize it. He was criticizing something I didn’t write. . .
Not that anyone who supports the Virginia Atty. Gen’l will accept the argument presented, here’s a link to a brief scholarly presentation on the 10th Amendment.
http://writ.news.findlaw.com/lazarus/20090312.html
But James, you are taking 10 words are basing an entire system of government on that, rather than on all the other words in the constitution, too.
If the framers had REALLY intended it to be the twisted meaning the Tenthers insist on, the framers would have needed to write the 1st Amendment to begin with. It would AUTOMATICALLY be prohibited for congress to establish a religion, etc., by the simple fact that the constitutional didn’t grant permission to do it.
Re: my last post, I typed too fast and mistakenly typed “Court of Appeal.”
I should have said US District Court Judges’ decisions.
However, the point is still valid.
Were Dan right about 10A, the District Judges who found in favor of the health-care mandate would not have opined that Congress had the power under “x” clause of the Constitution. If they did not agree with 10A, they would not need to find a clause in the Constitution granting Congress the power to take an action.
The Supreme Court has ruled on what the 10th Amendment means many times. Those rulings are in agreement with me. Henry thinks he knows better.
Henry always thinks he knows better.
Remember, this is the guy who suggested TRT was ignoring building code violations in Montgomery County schools after he first learned about them from reading TRT.
Dan,
Your whole premise is out of whack because you are trying to use the document that liberals abhor to make your case and you are failing miserably at it. “Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.”
No Dan, we are looking at the whole document, are you? Why do you bring up that you feel tenthers have aligned themselves with slavers Dan? Trying to get an emotional response because a rational one won’t hold up? It is YOU who are looking only at amendment 10. You do have to take amendment 10 in context with the other 9 that were added at the same time as the tenth.
Suppose Dan, you cut to the chase and cite for us where in the constitution the Federal government is empowered to force citizens to make a purchase of a product? Even the 2nd doesn’t require you to bear arms, it just protects one’s right to do so.
Silly constitution, it is an outdated document and we shouldn’t have it anyway…….
PPACA seemed to “birth” the “tenthers” argument that the Federal Government has over stepped it’s constitutional authority. At least in terms that PPACA requires individuals to purchase health insurance.
I have worked in the “evil” health insurance industry for over 30 years and have been the first to say that the current situation is unsustainable. However, in terms of PPACA I have to agree with Norman Solomon who was quoted in Huffington Post as saying, “The healthcare law is in danger of falling apart as a sort of Rube Goldberg contraption with severe design flaws due to political machinations that had very little to do with sound public policy.”
http://www.huffingtonpost.com/jeff-norman/why-the-individual-mandat_b_821153.html
There are several good things about PPACA including 100% coverage for preventive care, no pre-x, minimum loss ratios for health insurers. However, PPACA doesn’t address most of the major drivers of health care costs: chronic obesity and poor lifestyle choices of the American people (conservatively 30% of health care costs); cost shifting from Medicare and Medicaid; insurance fraud; etc. etc. Hense, PPACA will fail to do the main thing it should have set out to do – make healthcare affordable.
Dan mentioned (yesterday I believe) that PPACA didn’t address one needed reform – removing the anti-trust exemption for health insurance companies. I couldn’t agree more! The McCarran-Ferguson Act stiffles competition, increases costs and should be repealed!
Regarding the individual mandate, many say this is required to prevent people from getting sick and then buying health insurance (adverse selection). Rather than the individual mandate, there could an annual open enrollment period (similar to most employer plans and the FEHBP plan) with exceptions made for life events (marriage, divorce, birth, etc). This would limit adverse selection to a level that wouldn’t increase the costs.
Bob, just fyi, but the Tenthers’ argument has repeatedly been shot down by the Supreme Court.
The justices may say to hell with precedent in the upcoming case, but up until now most of the court’s rulings are contrary to the Tenthers’ positions.
Dan you still tried to demonize him and 60% of the population by saying that being a “tenther” is something bad. The “right” to abortion is somehow “found” in the right to privacy. Should we demonize the “privaciers”? the tenth is easy to read: 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. There is no hidden “right” in there. the fall back document is the constitution. If it is not “written” in the constitution then it is not “in” the constitution. Therefore it is “reserved to the states”. It could and should be that simple.
Here’s what it says again
“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.”
This is the same Dan who spent more space on allowing the 10 Commandments in Giles County schools than dangerous and potentially deadly building code violations in Montgomery County.
Bob, liberals are the ones who LOVE the constitution. Conservatives are the ones who in recent years have repeatedly identified changes need to be made to it so it will better conform to what they believe. Admit it, Bob, most of the proposals for constitutional amendments that are out there are bring pushed by right-wingers.
Dan,
The SCOTUS has upheld the 10th amendment:
http://en.wikipedia.org/wiki/New_York_v._United_States
http://en.wikipedia.org/wiki/Brady_Handgun_Violence_Prevention_Act
“In its 1997 decision in the case, the Supreme Court ruled that the provision of the Brady Act that compelled state and local law enforcement officials to perform the background checks was unconstitutional on 10th amendment grounds”
Do you need more? They are all over the place….
Re; #33
SCOTUS agreed with you?
Please post one citation of a SCOTUS decision where SCOTUS said that no Constitutional clause/authority was required.
SCOTUS goes to great pains to specify which Constitutional clause does or does not make an action of Congress Constitutional or not.
Paul, 60 percent of the population do not identify themselves at Tenthers.
In the most recent polls, less than half of respondents want to see the ACA repealed. It would be wrong to assume that even all of them are opposed to the act on constitutional grounds.
Neither the concept of states sovereignty, nor the 9th or 10th amendments would prohibit the federal gov’t from enacting a national health care insurance plan. In fact, such a plan would be wholly congruous with the 9th & 10th Amendments in that such a plan falls squarely within the Congresses power found in Article I, Section 8 regulating interstate commerce.
You see, Henry was talking about the newspaper when he suggested it was ignoring the building code violations that he learned about by reading the newspaper.
I haven’t written a word in the newspaper about Giles County and the 10 Commandments. But I have written about the Blacksburg High School gym collapse.
So Henry is wrong again, shucks. It’s getting embarrassing for you, Henry.
Madsion wrote the first 10 Dan. Was he a right winger?
Right wingers wrote #13? Doesn’t that contradict your argument?
18 and 21, which one did the right wingers do Dan, they can’t have done them both…..
right wingers did #9 Dan?
There are 14 of the 27 Dan. Right wingers have proposes the most of them?
And how is that germane?
No Dan, I am a conservative who embraces the constitution and so do most of the tea party people you have tried to make so much fun of.
Do you read what you write?
Earlier Tenthers have challenged federal child labor laws (folks, believe it or not those are still on the books); Social Security, (which is still with us); Medicare (still with us); and the 1964 Civil Rights Act.
All of those were in conflict with the 10th Amendment, according to the Tenthers. Yet all of them still exist!
How could that be?
It’s because the Tenthers are misreading the constitution.
to demonize someone and 60% of the population by saying that being a “tenther” is something bad might be a little over the top. The “right” to abortion is somehow “found” in the right to privacy. Should we demonize the “privaciers”? the tenth is easy to read: 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. – There is no hidden “right” in there. the fall back document is the constitution. If it is not “written” in the constitution then it is not “in” the constitution. Therefore it is “reserved to the states”. It could and should be that simple.
BobH, your crowd wants to CHANGE the constitution because the smart members of your crowd realize it doesn’t say what they wish it would say.
#23 Paul, buddy, teabagging was being used by the group you revile long before the tea party started using it. If anything, the tea partiers tried to hijack the term (although I’m sure they didn’t try to hijack it; they were just ignorant of any already established meaning).
Article VI, Sect. 2.
The Constitution and federal laws enacted thereunder are “the Supreme Law of the land.”
Article III, Sect. II.
The federal courts have jurisdiction over all cases in law and equity “arising under the Constitution. . . .”
Amendment X.
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.
Amendment XIV, Sect. 1.
(a) Everyone born or naturalized in the US is a citizen of the US.
(b) No state shall make or enforce any law abridging the privileges or immunities of citizens of the US.
(c) Nor shall any state deprive any person of life, liberty or property without due process of law.
(d) Nor shall any state deny to any person the equal protection of the laws.
Amendment XIV, Sect. 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Just follow the trail of logic…..
And… to back up Dan’s argument, check out the following cases:
Brown v. Board of Education, Loving v. Virginia, Griswold v. Connecticut, Roe v. Wade, Lawrence v. Texas and, United States v. Heller
Here is how you can quite peacefully drive the Tenthers into a frenzy. Repeat this mantra:
“Medicare is constitutional. Social Security is constitutional. The 1964 civil rights act is constitutional.”
This completely overloads their constitution-interpreting circuits.
When you get on the argument that “if what you believe is true, then the entire 1st Amendment is unnecessary, and obviously the framers did not believe that” the Tenthers’ heads explode.
The result is a major short circuit that drives them to the conclusion that the ACA is unconstitutional. Just like earlier tenthers have believed about Social Security, Medicare and Civil Rights. Which are constitutional.
Re: #38
I happen to agree with you that, “the current situation is unsustainable. However, in terms of PPACA I have to agree with Norman Solomon who was quoted in Huffington Post as saying, ‘The healthcare law is in danger of falling apart as a sort of Rube Goldberg contraption with severe design flaws due to political machinations that had very little to do with sound public policy.’ ”
However, I don’t buy that the ends justify the means.
For right wingnuts, civilization is always on the verge of collapse. It’s easy for them to justify any abuse of constitutional niceties when barbarians are at the gate. And it’s easy to cut ethical corners when you can dehumanize your ideological opponents as monsters.
For left wingnuts, “What the process is doesn’t matter. The outcome is what is important, and what it means to working families in America.” – Nancy Pelosi 1.27.2010.
IMHO, we need to do is look back to then Senator Obama’s “We Need to Rise Above an Ends Justify the Means Mentality” speech — see:
http://tinyurl.com/4k4eztv
FWIIW, I think that a single-payer system would be fully Constitutional under Section 8 – “The Congress shall have Power To lay and collect Taxes … to … provide for the … general Welfare of the United States….”
They do what Sarah Palin is famous for…. using as many adjectives and prepositions in a sentence as possible so that it sounds as if you are making a point, when in reality, it’s just a bunch of meaningless words strung together…. Right wingers fall for this every time.
OR, just ask them what FICA stands for…
What DaveH said.
Re: #55
Repeat your the-ends-justify-the-means mantra all you want, as it evidence that you have completely overloads your constitution-interpreting circuit.
Where is the judicial decision that Medicare is Constitutional, lacking any authority under the Constitution to enact it?
Where is the judicial decision that Social Security is Constitutional, lacking any authority under the Constitution to enact it?
Where is the judicial decision that 1964 Civil Rights Act is Constitutional, lacking any authority under the Constitution to enact it?
As I have asked before, if you are right about 10A, why do the courts always go to the trouble of opining about the Constitutional clause(s) that make laws Constitutional?
Re: #59
Huh?
My constitutional circuits are not overloaded at all Dan. Sorry to disappoint you.
And where do YOU cite the right of the Federal Government to mandate each citizen purchase a certain commodity?
Dan, check out the 19th amendment that was passed in 1919 and ratified in 1920. Then see that Wyoming was admitted as state in 1894, with FULL women suffrage. How can that be? (hint: One of the first 10 amendments).
You know Wyoming… It’s that den of liberalism that brought is Dick Cheney and Alan Simpson……
Circuits still fine, BTW…..
I like the constitution just fine! It is Dan who is railing against amendment 10, not I!
Re: #54
BINGO
“Article VI
…
This Constitution, and the laws of the United States which shall be made in pursuance thereof; … shall be the supreme law of the land; and the judges in every state shall be bound thereby…. [emphasis added]”
Note, it is not just any old law where the ends are construed by some to justify the means but rather only those laws “made in pursuance thereof” that are the supreme law of the land.
Dave, I can’t do all your research for you. I have Tuesday’s column to write!
But: here are some of the cases in which SCOTUS upheld SS: Helvering v Davis, Steward Machine Co. v Davis, and Carmichael V. Southern Coal and Coke.
Here’s one (of a bunch) of cases in which SCOTUS upheld the 1964 civil rights act: Heart of Atlanta Motel V. United States.
That’s two out of three. I think you should go looking for the cases in which SCOTUS has upheld Medicare yourself.
Re #58
The Federal Insurance Contributions Act (FICA) tax is a United States payroll (or employment) tax imposed by the National government on both employees and employers to fund Social Security and Medicare under the authority of Section 8 of the US Constitution (“The Congress shall have Power To lay and collect Taxes … to … provide for the … general Welfare of the United States….”)
Hence upheld by the Courts under 10A.
So what is your point?
Nope. If I’m railing it’s against the people who have misinterpreted the 10th.
Pingback: Dan Casey, is this the best you can come up with? – Colorado Tenth Amendment Center
My rebuttla to this post can be found here. http://colorado.tenthamendmentcenter.com/2011/02/dan-casey-is-this-the-best-you-can-come-up-with/
Re: #64
Sorry to bust your bubble, Dan.
But those case found those laws Constitutional under specific authorizing clause(s) of the Constution.
None voided 10A.
I didn’t say they voided the 10th Amendment.
I said SS was constitutional, and so is Medicare, and so is 64 civil rights.
The Tenthers are the ones who are claiming those laws are unconstitutional……
Re: #70
I am not addressing what others might be saying — be they “Tenthers” or whomever.
I am addressing that 10A is alive and still in effect and that your argument about 1A and 10A is significantly flawed logic / rhetoric.
I am addressing your fallacy or incorrect reasoning in argumentation resulting in a misconception. By accident or design, you appear to be exploiting emotional triggers and using rhetorical patterns to obscure the logical discussion.
The courts found SS and Medicare and the 1964 Civil Rights Act to be Constitutional under appropriate provisions and clauses of the Constitution.
Your mantra is a disservice to logical debate.
@DaveH:
Single Payor may be constitutional but I do not believe it is the cure-all for health care reform. Single payor would not address the underlying factors driving the cost of healthcare and therefore; it would not be sustainable either.
Re: #72
No argument here, Bill.
I must not be a tenther then because I have never said those laws are unconstitutional.
No Dan, you are not railing against those who misinterpret the 10th amendment, you are railing against those who interpret it differently from you. You are making quite a stretch to presume that any interpretation different from YOURS is a minsinterpretation. BTW, still think Boucher defeats Griffith?
For me, thare is nothing to interpret. The language is quite clear. SCOTUS has ruled in favor of the 10th amendment as I have pointed out.
RIP Obamacare. KC and the sunshine band will shed their light.
So BobH,
Are you with the Roanoke Tea Party folks who believe a state has the power to nullify any federal law within its boundaries, or with the Federation of Tea Party folks who believe in amending the constitution so that 2/3 of the state legislatures could undo federal laws?
“I said SS was constitutional, and so is Medicare, and so is 64 civil rights.
The Tenthers are the ones who are claiming those laws are unconstitutional…”
There is no doubt that the govt. has gone well beyond the founders intent.And I am thrilled that states rights are being mentioned.The Feds have trampled on them long enough.Great speech by Cuccinelli!
The people are coming alive again with the help of the Tea Party movement and others.Up with freedom! Down with Federal authoritarianism!
Nullification has not had enough constitutional challenges to have been firmly established in clear case law and I do not agree that nullification is an option with regards to Obamacare.
Ultimately, it is up to the SCOTUS to decide whether nullification is constitutional. It has been used by states fighting the Fugitive Slave act and by states in Brown v. Board of education. Both Madison and Jefferson argued that it was the states themsleves that ultimately interpreted the constitution.
But who the heck were they? What did they know compared to Dan Casey?
Dan,
I amswered your question. When are YOU going to cite the constitutional right of the federal government to require citizens to purchase a product?
Why are you obfuscating?
Bill Perdue, what are “the underlying factors driving the cost of healthcare” in your opinion?
Re: #75
Dan,
Why are you trying to drag in other issues?
Are you now resorting to the “Genetic Fallacy” of logic — i.e., a flawed conclusion that is based on an argument that the origins of a person, idea, institute, or theory determine its character, nature, or worth?
That’s like arguing that the Volkswagen Beetle was an evil car because it was originally designed by Hitler’s army.
The Supreme Court has found these laws constitutional.
Just because some loudmouthed yahoos claim they’re not, it doesn’t mean they’re unconstitutional.
Right, BobH. What do they know compared to me and the Supreme Court?
Re: # 82
You should have left the “me” out, Dan.
BTW — See my comment at #31
**
I wouldn’t take a bet either way on what SCOTUS will say about the power delegated to the Congress under the Commerce Clause relative to the health-care mandate.
However, I will make you one bet. SCOTUS will not say anything like your rant….
**
Sandi, I mentioned a few of them in my 1st post: “major drivers of health care costs: chronic obesity and poor lifestyle choices of the American people (conservatively 30% of health care costs); cost shifting from Medicare and Medicaid; fraud..” In addition to these, please add: our aging population, new expensive technology/medicines, defensive medicine, antiquated provider reimbursement methods.
Just changing the payor wouldn’t change these factors.
@78 BobH — In July of 1798, The 5th Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
You may read more about it here:
http://open.salon.com/blog/paul_j_orourke/2009/07/22/our_founding_fathers_socialist_healthcare_system8
Bob H,
read my post below. Note especially the second sentence. That’s the answer to your question. You may not like it, but there it is.
Neither the concept of states sovereignty, nor the 9th or 10th amendments would prohibit the federal gov’t from enacting a national health care insurance plan. In fact, such a plan would be wholly congruous with the 9th & 10th Amendments in that such a plan falls squarely within the Congresses power found in Article I, Section 8 regulating interstate commerce.
Comment by Ron — February 14, 2011 @ 11:28 am
Let’s try this one:
http://open.salon.com/blog/paul_j_orourke/2009/07/22/our_founding_fathers_socialist_healthcare_system
Right Dan,
And the contitutional right of the Federal Government to force citizens to buy a private product?
You are being transparent as saran wrap…..
Re: #85
Yup, Constitutional under the authority of Section 8 of the US Constitution (“The Congress shall have Power To lay and collect Taxes … to … provide for the … general Welfare of the United States….”)
Hence not in violation of 10A.
So what is your point?
So I guess Dan is putting his chips with the Harvard Law professor who told a Congressional committee that it would be perfectly legal for the federal government to require every citizen to purchase broccoli (as long as they aren’t required to eat it). There is a large gap between the “tenthers” and the “federal government controls all and Constitution means whatever we want it to this week” crowd that Dan seems to belong to. I guess I must be more of a “tenther” because I think the amendment is real and that it limits the power of the federal government.
Dan-What do YOU think the 10th amendment means? Is it somehow null and void and the rest of us just didn’t hear about the repeal? How do YOU “interpret” what seems pretty black and white to most who have posted here? Your article did a fine job of calling a lot of folks names, but did NOTHING to advance an alternate view of what this amendment means.
“Virginia Attorney General Ken Cuccinelli is one of the leading lights of the 10th Amendment movement, or “The Tenthers,” a peculiar band of U.S. Constitution misreaders, dopes and ignoramuses whose asinine arguments are actually garnering some attention to these days.”
Dan has written a classic example of the “dangerous” political vitriol that the liberals were condemning just a few short weeks ago. Of course, we all knew it was a hypocritical smokescreen. The Democrats just wanted to silence the opposition to their policies and candidates.
I hope some mentally-ill person doesn’t read this article and act violently against the Attorney General because of it.
Re: #84
I’d expand a tad on your “new expensive technology/medicines.”
I can name a number of times in my life that the at-that-time new expensive technology/medicines kept me alive to increase the current cost which I am accruing by using today’s new expensive technology/medicines.
I could have easily died in 1943 and ultimately in doing so have saved myself, my different insurance companies over the years, and my country (via Medicare) a lot of money.
Fast forward through a number of other injuries and illness to Dec 2009 and a number of expensive emergency room visits, which resulted in a defibrillator and a pacemaker kept me alive to be spending more than $1500 a month (mine and the insurance company’s) on Rx to be keeping me alive now. Then add on the multiple follow-up visits to the Doctors and expensive tests, as I slowly deteriorate.
Bill is right, our aging population is a major driver and we are aging because of new expensive technology/medicines which in-turn allow us to use more new expensive technology/medicines.
Glad you’re alive, DaveH.
#90
Good point on the requiring of every citizen to purchase broccoli and maybe even eat it — albeit I’ll not bet on the outcome of these cases, as I have said repeatedly.
We might all be better off eating more broccoli (save maybe those of us, like me, on blood thinners / anticoagulants, such as the rat poison warfarin).
However the ends don’t justify the means and the real question is, “On what Constitutional authority is the law based?”.
LOL. DaveH, I’m glad you are alive too!
Tenthers suffer from the Dunning-Kruger effect.
From Wikipedia:
“The Dunning–Kruger effect is a cognitive bias in which unskilled people make poor decisions and reach erroneous conclusions, but their incompetence denies them the metacognitive ability to appreciate their mistakes.[1] The unskilled therefore suffer from illusory superiority, rating their ability as above average, much higher than it actually is, while the highly skilled underrate their own abilities, suffering from illusory inferiority. This leads to the situation in which less competent people rate their own ability higher than more competent people. It also explains why actual competence may weaken self-confidence. Competent individuals falsely assume that others have an equivalent understanding. “Thus, the miscalibration of the incompetent stems from an error about the self, whereas the miscalibration of the highly competent stems from an error about others.”
No #91 no one will be shooting anyone, my guess is you were somehow trying to be funny which I do not see as being that funny. its always the peace makers that always seemed to be getting shot. We do not carry firearms to demonstrations, we do not need them.
Hum?
A bit of irony in #s 97 & 98, is there not?
Someone who is calling others “misreaders, dopes and ignoramuses” and who is asserting / rating his own ability higher than others — then turning around and citing / expounding on the Dunning-Kruger effect!
LOL!
Might not someone need to take heed of the last line of Dan’s quote from Wikipedia?
There might be more truth there and more application to this thread than the posters realized.
AFAIR, there were also studies, which document the “effect” where folk in the extreme wings of a bell shaped curve think/assume that more of people in a group agree with them than actually do agree with them. Had to do with exchanges typically evolving response from only the member of their wing agreeing and from the opposite wing disagreeing – while the far larger centralist portion of the bell curve choosing to ignore the conversation. AFAIR there were both small group studies with stratified samples and larger sample opinion polls where folk were asked their personal opinion as well as there assessment of others.
Anyone have a citation?
Bill #84, I think you are mixing the costs of health care with the causes of health care. I think a the relationship (or more often the lack thereof) between doctor and patient and the decisions that come from that are a HUGE driver of health care costs.
Many patients with good insurance coverage have become spoiled and overuse, even abuse health care. The best customers of a chiropractor are the ones whose insurance covers chiropractic. When little to nothing is out of your pocket…
Too many doctors either unfamiliar with their patients or “afraid” of them practice defensive medicine instead of “evidence based” decisions, ordering too many expensive tests and too many expensive drugs.
There is also no cost knowledge available for anyone to do comparative shopping or make the most cost effective decisions for themselves or their care.
Entirely too many patients are swayed by drug commercials or doctors by drug rep freebies to use the most expensive drugs even if a cheaper or maybe even better drug is available to make them appear “up” on things.
Hospitals and doctors want, need and cultivate VOLUME. A few minutes time is all a doctor has (with no real chance to diagnose and get familiar with a patient) when the waiting room is stacked with 4 people having a 10 o’clock appointment. Also leading to that defensive medicine and testing in case they missed something they could have caught with just a more thorough exam or more time asking questions and observing. If you arrive in an ambulance or can be billed as needing ICU or CCU or some “specialty” all the better – for them.
Insurance is more about making money for their management and stock holders than their customers and that is system wide so no need to worry about competition or being “ratted out”. Until one executive gets fed up and starts talking like Wendell Potter.
Drug companies market directly to patients via advertising that is expensive and have to be factored into the drug costs just like R&D and seldom push generic or older medicines that are still effective and much cheaper.
Lastly, the politics of government mandates and restrictions that require things that may not be needed or restrict things that may save time, money and the health of patients. Insurance industry lobbyists that help write the state laws they operate under and carry more weight than they should ever be given.
THOSE are things that actually and literally DRIVE the costs of health care certainly as much or mayhap more so than the obese, poor, smokers (all who die younger statistically), elderly or Medicare and Medicaid costs, IMHO.
“The Dunning–Kruger effect is a cognitive bias in which unskilled people make poor decisions and reach erroneous conclusions, but their incompetence denies them the metacognitive ability to appreciate their mistakes.”
Finally, the RW in a nutshell.
Medicare is a major driver of what insurance companies are charged, hence a major player in what healthcare ends up costing. I’m interested in people who have no problem using Medicare yet claim not to think that the government has a role in ensuring healthcare is provided to people young enough not to qualify for it.
And I do think that single payer would go a long way to driving down costs. A healthier population would help, but it’s unhelpful when the RWnuts wet themselves every time someone in the public eye recommends eating an occasional vegetable.
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“..the Tenther movement is led by a few smart and cynical people who find economic or political self-interest in Tenther logic. They have won over a much larger bunch of intellectual boobs who can’t be bothered to think for themselves.” LOL!
I’d be more than happy to arrange an internet debate (either text based or live audio, to be published on a high traffic website, such as http://www.tenthamendmentcenter.com), between Casey and one of the people he calls “intellectual boobs”. Tom Woods perhaps? Unfortunately, like so many others whom I’ve challenged to a debate on this issue, Casey probably won’t even respond. His piece is so full of historical inaccuracies, mis-characterizations and outright falsehoods regarding the original intent and meaning of the Constitution that I suspect he’ll ignore the challenge because he knows how foolish and uninformed he’ll end up looking in front of thousands of people. I’ll still contact him anyway though, just so I can add him to the growing list of critics who were too scared.
Re: #101
“Finally, the RW in a nutshell.”
——–
Half right!
Here let me fix it for you, “Finally, any wingnut (left or right) in a nutshell.”
Cheers, DaveH! Much truer.
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“..including the federal highway system.” That’s funny, I’m a Tenther and I don’t recall questioning the federal government’s constitutional authority to build highways. Dave starts out by insulting people he disagrees with and then goes on to blatantly misrepresent their views.
“Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.” Ummm…no. It’s based on the document as a whole as understood by those who ratified it. Has Dave ever read a single sentence from any of the states’ ratification debates?
Casey’s central argument against what he views as our misreading of the Constitution, betrays both his ignorance of the history surronding the Constitution and the rules of legal interpretation that were understood very well by the those who framed and ratified it.
Both James Madison (the author of the amendment Casey uses to make his case), and Alexander Hamilton, had serious reservations about a Bill of Rights. Why? Because they argued what Tenthers today understand — that the Constitution created a federal government of strictly limited powers. That’s the reason pro-ratification founders, like Hamilton, expressed concern that the Bill of Rights:
“..would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted.”
Perhaps Casey has never read the Federalist Papers or studied the ratification debates. Hamilton however, who along with James Madison and John Jay wrote the Federalist Papers, asked an important question in No. 84 that shows just how confused Casey really is. He asked:
“..why declare that things shall not be done [by Congress] which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given [to Congress] by which restrictions may be imposed?”
Hamilton might have just as well have asked, ”Why have an amendment prohibiting Congress from infringing on our right to grow and eat apples when the Constitution gives Congress no authority to infringe upon our right to grow and eat apples in the first place?” He knew full well that under the proposed Constitution, Congress was supposed to do only what it was specifically authorized to do and nothing more. All other powers were to be reserved to the states or to the people. The 10th Amendment is perfectly clear on that point.
But as one can see from Hamilton’s questions in Federalist No. 84, there isn’t even really a need to appeal to the 10th Amendment in order to refute Casey’s pathetic argument. Casey should have done his homework before attempting to impersonate a constitutional scholar and insult Tenthers by calling them all kinds of names. We know and understand the Constitution far better than he does. Even before the Constitution was ratified, Alexander Hamilton predicted that the Bill of Rights would be misconstrued by people like Casey who are “disposed to usurp” in order to furnish, “a plausible pretense for claiming power” that is nowhere granted to the federal government in the Constitution.
This type of drivel about the Tenth Amendment movement is best just ignored. Why give any attention whatsoever to such an obviously intellectually dishonest article?
The document as a whole argument is just intended to be so general as to allow people like this author to ignore actual specifics in the text in favor of his own interpretation. When we use ‘as a whole’ it implies that specific sentences and clauses that contradict the interpretation’s ‘as a whole’ argument as invalid. Why else look at specific clauses that apply to specific situations when we can look at the whole thing and ignore those specific clauses in the first place. Its and overly generalized statement designed to deflect from specific and clear ideas to this particular author’s own opinon.
“As a whole”–the first amendment may not mean that speech is protected
“AS a whole”–slavery might be OK
“As a whole”–income taxes are unconstitutional.
So if I understand Derek Sheriff’s argument:
1) Alexander Hamilton, and some others, recommended NOT having a Bill of Rights, because it would/could/might be construed precisely as I am construing in. (In fact, Alexander Hamilton thought there shouldn’t even be a Tenth Amendment, in which case there would be no Tenth Amendment Center).
2) The drafters of the U.S. Constitution carefully considered Hamilton’s argument and rejected it, and I am siding with their argument.
I’ll address this more at length in a post Monday.
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Dan, Let me address each of your points in separate posts:
1) Yes. Alexander Hamilton was opposed to any Bill of Rights because he argued politicians would make the argument you made in your article. Was he sincere, or did he have ulterior motives? Who knows, but you have proved that his argument was sound. I’m sure there would still be a Tenth Amendment Center if there had been no Bill of Rights, although it would have been given a different name, like “The Center For Strict Constructionism” or something like that. Why? Because politicians love power and even if there had been no Bill of Rights there would still have been a tendency, as James Madison wrote:
“..by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them..so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty…”
2)Dan, the drafters of the Constitution didn’t consider Hamilton’s argument. Hamilton left the Philadelphia Convention very early on and didn’t even make that argument until long after the Constitution had been drafted and submitted to the states for ratification. The Bill of Rights wasn’t even introduced until the Constitution had already been adopted.
The author of the Bill of Rights, James Madison, had the same reservations about a bill of rights as Hamilton did, for the same reasons. However, he finally submitted it anyway in order to make Jefferson happy and to calm the fears of states who were afraid that federal politicians would misconstrue certain phrases in the Constitution to usurp power reserved to the states and the people, the way people like you continue to do today.
During the ratification debates, founders in each state who were pro-ratification, constantly reassured those who were ant-ratification that the federal government would have NO powers, other than those that were specifically enumerated in the Constitution, plus any lesser powers that were necessary and proper (not simply convenient), to carry out the enumerated powers. Example: The federal governemnt is authorized to establish the postal service, therefore it may purchase materials and contract labor in order to build post offices and establish postal roads. Even with these assurances, however, some states ratified only with the assurance that FURTHER declaratory and restrictive clauses would be added later, in order to prevent misconstruction or abuse of these enumerated powers.
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Hey, Dan! Why did you shut up so suddenly, right after you were challenged to an actual debate? Why haven’t you been answering any contacts related to said challenges?
To everybody else: it seems he can dish it out, but not take it. Maybe he is afraid he will actually be shown to be all those bad things he said about other people, i.e., “… Constitution misreaders, dopes and ignoramuses.”
If you don’t really have the courage of your convictions, Dan, then why are you posting your opinions publicly? Hmmm… if I remember correctly, I think that’s called “propaganda”.
Anne Ominous,
Why would I debate? There’s nothing to debate. I’m correct. Why should I waste my time?
“Why would I debate? There’s nothing to debate. I’m correct. Why should I waste my time?”
Gee, Dan, you and Rush Limbaugh should get together.
Dave Welsh, you might as well chide me for not arguing over whether the sky is blue.
Dan,
I think you really have your history wrong.
Congress can only pass laws that fall into Article I: Section 8.
The Supremacy Clause only kicks into effect when a law is passed that falls into Article I: Section 8.
The 10th Amendment states that anything NOT in Article I: Section 8 falls back to the states and the people.
You keep bringing up Supreme Court Cases. No where in the Constitution does the Supreme Court has the authority to be the final arbitrator on the Constitution. Chief Justice John Marshall seized this authority WITHOUT a Constitutional Amendment.
Having the Federal Government determining what power they can do or can’t do is like having your ex-mother-in-law ruling over your divorce case.
Sorry, I lose a lot of respect for the Supreme Court when it rules what a man can do with the Wheat on his own property that he grows himself.
Or tell a women she can’t grow and smoke pot when her doctors says it helps her have somewhat of a quality of life!
These are clear violations of the 10th Amendment, and like the Supreme Court gives a damn!
A few founders quotes:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.
James Madison
I consider the foundation of the Constitution as laid on this ground: All powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.
Thomas Jefferson referring to the 10th Amendment
John L:
You might as well not bother. Clearly Dan is immune to absorbing actual facts.
Interesting post. I find it odd (although consistent) that liberals and progressives always say that the “right-wing” is uneducated, illiterate, etc. Instead of bashing “Tenthers” as you call them, I’d suggest you and your commenters stop typing and start reading so you can be sure you are not one of the “much larger bunch of intellectual boobs who can’t be bothered to think for themselves.” After all, your little history lesson is flawed. Start reading, and then see if you begin to think for yourself:
“The Rescue of Joshua Glover” (ISBN-13: 978-0821418130). This is about a runaway slave that was protected from the federal government’s Fugitive Slave Acts by the people of Wisconsin. That’s right, the Northern states were USING the 10th Amendment on BEHALF of slaves.
“The Original Constitution” (978-1452878331). Robert G. Natelson is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning. He has written for some of the nation’s most prestigious academic journals and publishers. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal.
“The Kentucky Resolutions of 1798* (http://www.constitution.org/cons/kent1798.htm). Written by Thomas Jefferson.
“The Virginia Resolution of 1798″ (http://www.constitution.org/cons/virg1798.htm). Written by James Madison.
“Nullification” (978-1596981492). As Tom Woods states, “As I show in Nullification, it was used against slavery, which is why South Carolina’s secession document cites it as a grievance justifying southern secession, and Jefferson Davis denounced it in his farewell address to the Senate. Thus Wisconsin’s Supreme Court, backed up by the state legislature, declared the Fugitive Slave Act of 1850 unconstitutional (the mere existence of the fugitive-slave clause in the Constitution did not, in its view, suffice to make all the odious provisions of that act constitutionally legitimate). In Ableman v. Booth (1859), the Supreme Court scolded it for doing so. In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act. Who’s defending slavery here?”
Be careful sir. Without educating yourself, you might be causing your readers to become part of a “much larger bunch of intellectual boobs who can’t be bothered to think for themselves.” Stop dismissing philosophies other than yours as unenlightened without exploring them. You may call yourself a journalist, but since you haven’t correctly portrayed any of the history of this topic, I can only view you as an editorialist…and one that cannot be bothered by simple historical facts. Are you not thinking for yourself?
#126 “I find it odd (although consistent) that liberals and progressives always say that the “right-wing” is uneducated, illiterate, etc.”
Generalize much, John?
This liberal doesn’t say any of this. However, we do have a few “conservatives” here who claim that ALL liberals are morons or not compassionate or … well, that all liberals “always” say that the right wing in uneducated, illiterate….
And of course by “educating yourself” you mean, read it all and interpret it as you have and if not, we will remain “uneducated” and therefore, wrong. Yeah, way to inspire people to see your point.
There is one rather large elephant (not the Republican kind) in the room however. The Civil War and the not headed, agenda driven states that caused it, proved beyond doubt the inefficiency, ineffectiveness and the falsehood of “state supremacy”. The Founders could not have wanted the UNITED STATES to be a cruel joke on whomever ended up in a bad one. The Federalist and anti-Federalist are as instructive as the final words compromised on and in all honesty, the history of this nation and the progress of time and devolution of man has to receive fair consideration as well. Informed people are not always the end of the discussion. More than one conclusion, solution and resolution can come from any research.
Dan, you need to remember the reason the Bill of Rights was added to the Constitution in the first place. Many states were leery of ratifying the Constitution because there were no specific protections against abuses by the central government. Additionally, the vague nature of some powers in Article I Section 8 (particularly the necessary and proper clause, as well as the commerce clause) and the supremacy clause made people nervous about central government over-reach. They rightly had little faith in the government’s willingness and ability to limit itself unless it was very specifically spelled out what they could and couldn’t do.
The first eight amendments of the Bill of Rights were designed to specifically protect the people against abuses that the British had inflicted upon its own people. The 9th Amendment was in response to the concern that by listing specific rights it would be interpreted that no other rights existed. The 10th Amendment was to make explicit what everyone considered implicit in the Constitution – the federal government only had the enumerated powers granted it by the people of the states.
Is it a belt-and-suspenders approach? Yes, but their concern about government overreach was clearly justified.
This writer is ignorant and I’m tired of reading the text myself and being told that I am ‘uneducated’ because I didn’t come to the supposed correct conclusion. I can read it for myself and come to may own conclusion about it which already makes me smarter than most lefties who rely on what the experts tell them is correct. I could be wrong but at least I am using my own judgment and my own judgment tells the federal government only has the powers given to it. If the federal government could do anything they want then why would they dedicate an entire section to things it could do? A constitution that grants the federal government unlimited power wouldn’t need these assigned powers to it since it could do them anyways.
We don’t “rely on experts”. We rely on Dan.
Re: #131
“We rely on Dan.”
——–
Hum?
From the expert, “Metro Columnist Dan Casey knows a little bit about a lot of things but not a heck of a lot about most things. That doesn’t keep him from writing about them, however.”
.
.
Yes, continue to rely on Dan. Dan, who argues that people who simply read the amendment and apply the commonly accepted definition to the words contained there in are guilty of ‘misinterpreting’ or over interpreting the 10th, while to support his position, he relies on numerous court INTERPRETATIONS that only tangentially apply to the issue at hand to rationalize his own view that the 10th amendment doesn’t actually mean what its text expressly states. Tell me again who is ‘interpreting” the 10th.
It’s no wonder he is afraid to actually debate someone on the topic.
Ignorance! The 10th amendment was used by northern states to nullify pro-slave laws enacted by congress. It was not a confederate position. Mr. Casey is a bootlicker for federal power.
Additionally, the 10th amendment is neither conservative or liberal. California is using the 10th amendment to legalize pot. Conservative ie authoritarians object but cobstituionalists “tenthers” cheer.
LOL, are you serious, Dan? Try reading the Federalist Papers and the minutes of the Constitutional Convention and not just regurgitate far-left nonsense. You keep using this argument that if the Founders intended the federal government to be restrained by the Constitution itself then the Bill of Rights would not have been necessary. What you fail to comprehend is that the Bill of Rights were put into place as a REMINDER.. a reiteration of what government absolutely cannot do. But it does not change the fact that powers must be expressly granted by Article I to Congress, hence why you have the “necessary and proper” clause. Article I, Section 8 is the Ends, the “Necessary and Proper” clause is the Means. James Madison said as much in Federalist #44: http://www.constitution.org/fed/federa44.htm
Sigfried
I have used that argument for years in this Blog. Dan, I think, and a lot of the folks here view the Constitution as a fluid document. My response has always been, fine if you want to change the constitution do it by amendment. They of course don’t agree with that although they never out and out say it. I give Sandi credit as she will and has said many times that she believes the Federal Government should have more powers then those granted by the Constitution, a least she is honest about it.
The arguments being put forward by posters will become moot as Virginia’s Attorney General continues his challenge to the Affordable Care Act. These are the words that will define the outcome:
“VIRGINIA LACKS THE SOVEREIGN AUTHORITY TO NULLIFY FEDERAL LAW.”
With the general expectation that the Supreme Court will have to resolve what is now a clear conflict between two federal courts of appeals, the individual lower-court decisions have pretty much ceased to make news. By the time the Supreme Court rules, if and when it does, a decision earlier this month by the federal appeals court in Richmond, Va., throwing out Virginia’s challenge to the statute without reaching the ultimate constitutional question, will be all but forgotten.
That would be unfortunate, because in its relatively brief 33 pages, this opinion from a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, sitting in the heart of the old Confederacy, offers a powerful reminder of a fact that a dismaying number of folks appear lately to have forgotten: the Civil War is over.
Hearing the case, Judge Diana G Motz, for the Fourth Circuit panel, which also included Judges James A. Wynn Jr. and Andre M. Davis, Judge Motz wrote: “A state possesses no legitimate interest in protecting its citizens from the government of the United States,” Contrary to Virginia’s arguments, the mere existence of a state law like the VHCFA does not license a state to mount a judicial challenge to any federal statute with which the state law assertedly conflicts.” The Virginia law was not an exercise of “sovereign power,” she continued, “for Virginia lacks the sovereign authority to nullify federal law.”
http://opinionator.blogs.nytimes.com/2011/09/21/breaking-news-the-civil-war-is-over/
Tenthers are also highly ELITIST. I mean, what right do they have to try to RESTRICT your ability to campaign for or pass a law that THE MAJORITY OF THE PEOPLE WANT just because it’s “unconstitutional” because it “should be a state issue” or some BS like that? THE WILL OF THE PEOPLE IS WHAT MATTERS HERE, not some trivial procedural crap. “It should’ve been done at the state level because their politicians are closer to the people.” So what… If the people want that law passed (provided it doesn’t violate civil liberties), it SHALL PASS, regardless of what level it’s done at (unless the Constitution expressly FORBIDS it at the federal level).
These people are almost as bad as the loony, libertarian, phony “constitutionalists” who are BY NO MEANS ANYWHERE NEAR AS INTELLECTUAL AS ACTUAL LAW PROFESSORS OR SCHOLARS! All they do is point to LAWS THEY OPPOSE IDEOLOGICALLY and say, “That’s unconstitutional because the Founders (who couldn’t POSSIBLY have known about HALF the stuff we deal with on a regular basis in 2012) didn’t mention in the Constitution.” It’s the EASIEST mental exercise in the world! How is it scholarly OR intelligent in the slightest?? Only a moron subscribes to this philosophy.
I mean, if libertarians, Tenthers and Tea Partiers TRULY cared about “the Constitution” and weren’t just partisan or ideological hacks, wouldn’t they list off STUFF THEY DO LIKE BUT ADMIT THAT MAYBE SOME OF THOSE THINGS ARE ALSO “UNCONSTITUTIONAL”? How hard is it, really, to say, “That thing- which I happen to DISLIKE POLITICALLY- is unconstitutional”? How many people who are FOR “Obamacare” actually have ever said, “This is unconstitutional nonetheless”? It’s only the people who HATED THE LAW ORIGINALLY that said that nonsense! They’re so transparent…
The idea that the Tenth Amendment STRICTLY FORBADE THE FEDERAL GOV’T FROM DOING ANYTHING BEYOND WHAT WAS EXPRESSLY PERMITTED IN THE OTHER PARTS OF THE CONSTITUTION… IS LUDICROUS! What, the Founders REALLY didn’t expect society to EVER evolve or change so much that NEW, IMPLIED POWERS would have to be added to the federal gov’t's repertoire? Did the Founders REALLY think society was that static? Come on… These guys weren’t IDIOTS!
I mean, did the people who drafted the Constitution ACTUALLY think that NO NATIONAL CRISES OR CHANGES, esp. 100s of years down the road, would EVER require the feds to take up some duties that were BEFOREHAND ONLY ‘STATE’ POWERS?? Please… They couldn’t have been that dumb or piss-poor planners.
“States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby, 312 U.S. 100, 124 (1941), reads as follows:
The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers…..”
Who are you gonna trust, some partisan hack named “Ken Cuccinelli”… or the SUPREME COURT with its 9 lawyers who’ve ACTUALLY studied the issue intensely and discussed and debated the matter with each other before making a final ruling?
“The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution, is often considered to be a truism. In United States v. Sprague (1931) the Supreme Court asserted that the amendment “added nothing to the [Constitution] as originally ratified.”
All in all, though, I think procedural bullsh*t like, “This law, which the people WANT and is actually a good law, which doesn’t violate ANY of the Bill of Rights or the amendments, is still unconstitutional and therefore shant be permitted” is so bogus an argument. We’re expected to REPEAL LAWS THAT ARE “UNCONSTITUTIONAL” that a) DO NOT violate any civil liberties and b) deal with sh*t that WASN’T EVEN AN ISSUE IN 1789 (i.e. we couldn’t POSSIBLY know what the Founders’ views on it would be anyway) even though the law is popular AND effective? GTFO… This “constitutionality” crap is just MAKING EXCUSES because the people who are AGAINST these various pieces of legislation that they claim are “overreach” HAVE WORN OUT THEIR ARGUMENTS, AND PEOPLE ARE FED UP WITH THE TRADITIONAL REASONING.
Tentherism is simply a last-ditch, ideological, stopgap attempt for CONSERVATIVES AND LIBERTARIANS to TRY TO GET FEDERAL LAWS THEY DISAGREE WITH REPEALED OR PREVENT PASSAGE. It’s not about “fidelity to the Constitution”; it’s cherrypicking, just like how they use the Bible to bash gay people.
Libertarians, for example, use the Tenther or “constitutionalist” arguments against, say, the welfare state BECAUSE THEY DON’T WANT TO LOOK LIKE HEARTLESS BASTARDS! It’s a sneaky way for them to OPPOSE THE LAWS AND TRY TO GET THEM REPEALED… without looking like they’re ignoramuses who ACTUALLY believe that the poor in America in 2012 can GET BY JUST FINE ONLY WITH PRIVATE CHARITY (which, of course, doesn’t include private SS, private Medicare, private unemployment insurance, etc.), which really hasn’t changed its collections or fundraising as a percentage of GDP (about 3%, I think).
Medicare, Medicaid, SS, UI, CAN’T AND DO NOT EXIST AT THE PRIVATE LEVEL BECAUSE, OBVIOUSLY, NO COMPANY CAN MAKE MONEY OFF OF IT! And how is a NONPROFIT ever going to “raise enough money voluntarily” year-to-year for the MILLIONS of poor folks to use these programs? There MAY have been a time when only private charity was necessary… but that time has LONG passed. This ain’t the 1800s or 1850s, for crying out loud! Times change, and society changes with them. Tough sh*t.
If anything, the safety net SUPPLEMENTS private charity by adding additional BILLIONS to anti-poverty efforts, billions which nonprofits simply CANNOT RAISE ON THEIR OWN, even with as much as they DO raise in the end. Of course I don’t want to ELIMINATE PRIVATE CHARITY to make “room” for a safety net, but I’m a realist. I think both CAN coexist to maximize fighting poverty.