Amendment 10 of the COTUS

[AZRedhawk44]

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.

I've got a thread running regarding AZ Health Care reform in the Politics forum, but I need some clarification on the meaning of this Amendment.

Operating under the premise that governments are granted powers by citizens who hold rights and authority, anything that is not expressly allowed to government is denied.  Conversely, anything that has not been voluntarily yielded by the citizens is allowed.

Assume that bubble gum is a commodity.  I chew bubble gum.  There is no constitutional information at all regarding bubble gum.

Arizona declares in its state Constitution that the right of the people to chew bubble gum shall not be infringed.  The state Constitution must not conflict with any CURRENT component of the US Constitution when introduced or amended.  Since the COTUS could care less about bubble gum, AZ reserves a right as a State for its citizenry to enjoy the rights, priveledges and burdens of bubble gum consumption.

Question 1:  Would the state-level Constitutional issue be beholden to a portion of US Code, being subordinate to the COTUS?

Later, Congress and 40 out of 50 states ratify a change to the COTUS, and an Amendment is made.  Bubble gum is now forbidden.

Question 2:  Can the FedGov seize a power that is reserved to the people, or to the states, by a deliberate reservation as in the case of a Constitutional Declaration by the state of Arizona?  I see parallels to prohibition, except there was no embodied state Constitutional declared right to alcohol consumption... it was just a vague right reserved to the people by virtue of the fact it was not expressly taken nor expressly surrendered to the Government.  We now have a Constitutional issue, do we not?

Question 3:  Could it be a valid form of Federal derailment to embody state-Constitutional protections for hot button issues we care particularly about?  I can't think of any legal parallels, but I am not a lawyer and I don't play one on the intarwebz.  Perhaps a guaranteed right to purchase without taxation or hindrance, ammunition feeding devices of any capacity used by law enforcement or a State National Guard military force... and that such right is not to be construed to limit the design characteristics of the feeding device to any particular weapons platform(s)?

This would protect M14, FAL, AK, AR, Glock, 1911, CZ and a bajillion other "high capacity" magazines for the procurement on the public market of the state in question, at a state Constitutional level.  A piece of USC should not be able to override a state Constitution, right?  It would then take a COTUS Amendment to over-rule a state Amendment, to include a change to Amendment 10 as well as a new Amendment to abridge the State's declared right?

[S. Williamson]

You're assuming that the 10th Amendment is still being observed.  It is not--it's fallen by the wayside along with the 3rd, 7th, and especially the 9th.   

[taurusowner]

I agree with Dr. Jones.  We have a federal government that dose what it wants, when it wants.  It only uses the Constitution as a guide to know how to paint their actions in a way that won't cause too much rabble rousing amongst the Proles.  If the Feds wanted gum forbidden, it would be so.

[De Selby]

I think the time issue may be what you're missing here: "prohibited to it by the states" means "powers not prohibited at the time the Constitution was adopted."

Since the states gave up the power to regulate interstate commerce in the adoption of the constitution, they can't now go back and "prohibit commerce regulation" by their own actions.

[AZRedhawk44]

Since the states gave up the power to regulate interstate commerce in the adoption of the constitution, they can't now go back and "prohibit commerce regulation" by their own actions.

With all due respect, SS, you're not thinking.

The infamous "commerce clause" was embodied in the COTUS from the get-go, prior to state Constitutions, and superceded all written law for the US.

Anything in the COTUS delegated as a power, prior to a desire to obstruct said federal power, requires Constitutional amendment at the Federal level to change.  All States of the Union acknowledge the COTUS as the supreme law of the land when admitted to the Union.

Interstate Commerce has no bearing for a state with its own bubble gum factory or home manufacture of bubble gum, either, so IC has specious claim to this theoretical right to bubble gum.  In the matter of Health Care, a patient and doctor reside in the same state typically.  The transaction between the two occurs in a single state.

But... who can say that a State is beholden to all future changes to the COTUS?  Especially when a State goes and amends their Constitution to expressly allow something?  Similarly, take gay marriage.  Let's say California Constitutionally acknowledges gay marriages.  There's nothing in the COTUS permitting or denying them, so they are a right reserved to the States or the People.  California has expressly reserved it.  Seems to me the FedGov has no leg to stand on with a Federal Law barring same sex marriage in that case, since it would be a violation of the 10th Amendment.

Or... say Montana, prior to 1986, passed a Constitutional Amendment preserving the right of all firearms makers to manufacture automatic weapons in the state of Montana.  This would derail the FOPA of '86 without a Constitutional act at the FedGov level.

Couldn't prescient action at the State Constitutional level stop FedGov legal atrocities and boondoggles?

[MicroBalrog]

There's a very nice book by Chicago University law prof Richard A. Epstein.
It's titled "How the Progresssives rewrote the Constitution."

It focuses, specifically, on the 10th. He argued that up until recently, the 'commerce clause' was viewed by the courts and the historians as a 'dormant clause', i.e. transferring power to FedGov mostly so the states wouldn't use it (say, install border checkpoints between North and South Carolina or whatnot), however, it was expanded by the courts in the 20th century as Progressive (read: Leftist) courts came in.

The breaking point came with US v. Wickard, where SCOTUS ruled that a man who grew corn on his own farm and fed it to his cows was participating in interstate commerce.

[De Selby]

There's a very nice book by Chicago University law prof Richard A. Epstein.
It's titled "How the Progresssives rewrote the Constitution."

It focuses, specifically, on the 10th. He argued that up until recently, the 'commerce clause' was viewed by the courts and the historians as a 'dormant clause', i.e. transferring power to FedGov mostly so the states wouldn't use it (say, install border checkpoints between North and South Carolina or whatnot), however, it was expanded by the courts in the 20th century as Progressive (read: Leftist) courts came in.

The breaking point came with US v. Wickard, where SCOTUS ruled that a man who grew corn on his own farm and fed it to his cows was participating in interstate commerce.

That is an interesting theory, but I think the early national bank controversy and specifically Gibbons v. Ogden pretty much do that argument to death.  As a matter of legal history, it seems that it was actually not until around 1895 (EC Knight), when positivism and social darwinism were in full swing, that the idea of a more limited commerce clause power began to curry favor. 

[De Selby]

But... who can say that a State is beholden to all future changes to the COTUS?  Especially when a State goes and amends their Constitution to expressly allow something?  Similarly, take gay marriage.  Let's say California Constitutionally acknowledges gay marriages.  There's nothing in the COTUS permitting or denying them, so they are a right reserved to the States or the People.  California has expressly reserved it.  Seems to me the FedGov has no leg to stand on with a Federal Law barring same sex marriage in that case, since it would be a violation of the 10th Amendment.

Or... say Montana, prior to 1986, passed a Constitutional Amendment preserving the right of all firearms makers to manufacture automatic weapons in the state of Montana.  This would derail the FOPA of '86 without a Constitutional act at the FedGov level.

Couldn't prescient action at the State Constitutional level stop FedGov legal atrocities and boondoggles?

Again, this is maybe what a states' rights advocate would like to be the case, but it is plainly and without any doubt not going to be how any such state program is treated in the Federal courts.

States are beholden to changes in the constitution because of the ratification process.  The states are beholden to Supreme Court rulings on the text of the constitution because a Supreme Court holding is the authoritative interpretation of the constitution....and the constitution is the supreme law of the land.

[MicroBalrog]

That is an interesting theory, but I think the early national bank controversy and specifically Gibbons v. Ogden pretty much do that argument to death.  As a matter of legal history, it seems that it was actually not until around 1895 (EC Knight), when positivism and social darwinism were in full swing, that the idea of a more limited commerce clause power began to curry favor. 

Note the author does not claim it was ever purely a dormant clause.

At any rate, it shouldn't be expanded to cover Raich-grade stuff.

[De Selby]

Note the author does not claim it was ever purely a dormant clause.

At any rate, it shouldn't be expanded to cover Raich-grade stuff.

No question there-what it should especially not do is become a facade for federal criminal regulations that have absolutely zero genuine commercial purpose.  It's not like they're protecting the marijuana trade or somehow think it will affect medicinal commerce.

[MicroBalrog]

Also, I blame Hofstader. For everything.

[Jamisjockey]

Wait until the Democratic super majority in the legislative branch begins overturning amendments.  The true sign what is in the future will be if/when they eliminate term limits for the HMFIC.  With the power of ACORN, the support of the courts, and the Messiah in office......Jis sayin'......