Repealing the 17th Amendment

[shanek]

Here's a good site about a movement to repeal the 17th Amendment to the Constitution, the reasons why, etc.:

http://www.articlev.com/repeal_the_17th_amendment.htm

These developments, and numerous others in the past, remind us that there are no checks and balances available to the states over federal power or over Congress itself in any area. However, in the history of our country, it was not always this way. In the original design by the Framers of the U.S. Constitution, there was an effective check on Congress through the state legislatures' power to appoint (and remove) United States Senators.

As such, the core of the problem with federal preemption lies in the passage of the 17th Amendment which abrogated the state legislatures' right to appoint United States Senators in favor of popular election of those officials. This amendment created a fundamental structural problem which, irrespective of the political party in office, or the laws in effect at any one time, will result, over time, in expanding federal control in every area. In addition to preemption issues, it caused a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and federal control over a number of state institutions.

The amendment also caused a fundamental breakdown in campaign finance issues with respect to United States Senators. As to United States Senators, campaign finance reform, which has been a hot topic in Congress, can be best achieved by repealing the 17th Amendment to the United States Constitution. It should be readily apparent that United States Senators, once appointed by the state legislature, would have no need for campaign financing whatsoever.

The reason for the passage of the 17th Amendment should be stated. The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power. The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator. When deadlocked, a state would go without representation in the Senate. For instance, in the very first Congress, the State of New York went without representation in the Senate for three months. Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks. The problem of deadlocked legislatures continued unabated from 1787 until 1913. The 17th amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power. Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact.

The 17th Amendment should be repealed. This would reinstate the states' linkage to the federal political process and would, thereby, have the effect of elevating the present status of the state legislatures from that of lobbyists, to that of a partner in the federal political process. The state legislatures would then have the ability to decentralize power when appropriate. It would give state legislatures direct influence over the selection of federal judges and the jurisdiction of the federal judiciary and much greater ability to modify the power of the federal judiciary. This structure would allow the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change. Figure A below portrays the existing relationship be_tween the states and the federal government. This relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little hope of return.

And here's their proposed amendment:

An Amendment to Repeal the Seventeenth Amendment
and Re-link the States to the Federal Political Process.

Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.

Section Three. Among the duties of each Senator is the primary duty to represent the government of their State, and in particular, their State's Legislature, in the Senate. For the purpose of maintaining communications with its Senators, each State Legislature shall establish a liaison committee and shall specify the duties, procedures, and method of appointment of that committee. This committee shall work with its United States Senators in evaluating the impact of federal legislation on their State. All legislation proposed by Congress, and all treaties proposed, shall be submitted to each State's liaison committee.

Section Four. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.

Section Five. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this amendment, related to the selection and removal of Senators. A State Legislature may implement a selection procedure whereby the State Legislature selects a Senator by a plurality vote rather than a majority. If a State Legislature fails to enact a selection procedure, then the State Legislature shall sit as a single body and shall select a Senator by a plurality vote. Irrespective of the procedures followed by the State Legislature, if the State Legislature does not choose a Senator within thirty days after a vacancy, the Governor of the State shall select the Senator.

Section Six. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution. All state legislative proceedings, including, but not limited to, those concerning the liaison committee, procedural issues, and the selection and removal of a Senator are open to the public. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislatures.

The 17th Amendment, as the site points out and as I have too several times on this forum, upset the balance of power and took away an important method of checks and balances. This would go a long way to reforming the system, although of course there are a lot of other problems that this wouldn't fix. Still, it would be a drastic improvement.

[corplinx]

Reasons for changing/altering the 17th:

Senator Elizabeth Dole (carpet bagger)
Senator Hillary Clinton (carpet bagger)
Senator Strom Thurmond (RIP)
Senator Robert Byrd
Senator Edward Kennedy
Senator John Edwards (ambulance chaser elected because he has good hair)
Senator Norm Coleman (switched parties for it)
Senator Joe Biden (major league a-hole)
Senator Russ Feingold and John McCain (disguised and incumbent protection act as campaign finance reform)
Senator Frank "my election was downright illegal" Lautenberg
Senator John Sununu (name recognition)

[geni]

If I've understood this corrrectly you want politicans to elect politicans?

[Gem]

What I'm really curious about is why did the senators of the past agree to pass the 17th amendment? I doubt it's a power grab, because I think it's much easier to get appointed by the state than it is by people.

Also shanek, besides campaign reform, what other balance and check are they suppose to do when elected by the state? I doubt they would stop pork barreling.

Gem

[Gem]

From shanek's link:

The reason for the passage of the 17th Amendment should be stated. The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power. The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator. When deadlocked, a state would go without representation in the Senate. For instance, in the very first Congress, the State of New York went without representation in the Senate for three months. Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks. The problem of deadlocked legislatures continued unabated from 1787 until 1913. The 17th amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power. Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact.

Well that answered part of my question. I wonder though why the Senate agreed to it.

Originally posted by geni
If I've understood this corrrectly you want politicans to elect politicans?

Good observation.

[shanek]

Originally posted by geni
If I've understood this corrrectly you want politicans to elect politicans?

I want state governments to have representation in the Federal government like they're supposed to. If this had been the case recently, you wouldn't have the Federal government saying things like, "Hey, you states, raise the drinking age to 21 or say bye-bye to your highway funds!"

It's checks and balances. Just as politicians in the Judicial branch have to guard against politicians in the Executive and Legislative branch (not that that's happening much lately), politicians in the state government have to guard against politicians in the Federal government.

[shanek]

Originally posted by Gem
Also shanek, besides campaign reform, what other balance and check are they suppose to do when elected by the state? I doubt they would stop pork barreling.

As I said, it won't solve everything. But check my previous post for an example.

[shanek]

Originally posted by Gem
Well that answered part of my question. I wonder though why the Senate agreed to it.

For the same reason the state legislatures agreed to it. They were as frustrated with the current system as anyone. The nice thing about the proposed anemndment is that it restores the balance of power while fixing the problems that led to the 17th Amendment in the first place.

[geni]

Originally posted by shanek


I want state governments to have representation in the Federal government like they're supposed to. If this had been the case recently, you wouldn't have the Federal government saying things like, "Hey, you states, raise the drinking age to 21 or say bye-bye to your highway funds!"

It's checks and balances. Just as politicians in the Judicial branch have to guard against politicians in the Executive and Legislative branch (not that that's happening much lately), politicians in the state government have to guard against politicians in the Federal government.

I will happerly admit to know little about US politics. But what makes you think that repealing this amendmnent will make any difference to the above issues? You risk end up with a senet whoes only talents are being nice to politicians.


Eddied to add: I also suupect you may risk ending up with someone like Jeffery Archer.

[shanek]

Originally posted by geni
I will happerly admit to know little about US politics. But what makes you think that repealing this amendmnent will make any difference to the above issues?

Because the state governments don't take too kindly to being extorted. But as it is, they have no recourse.

You risk end up with a senet whoes only talents are being nice to politicians.

And what we have now is any different?

Eddied to add: I also suupect you may risk ending up with someone like Jeffery Archer.

You're going to have to explain to me who that is, or provide a link or something.

[geni]

Originally posted by shanek
Because the state governments don't take too kindly to being extorted. But as it is, they have no recourse.
[/b]

Do indivdual senitors have a veto power? If not what difference is one or two anoyed senitors going to make


And what we have now is any different?


Some of them appear to be good at being nice to voters


You're going to have to explain to me who that is, or provide a link or something.

The closest thing we have to this in the UK are various party apointees to the house of lords. These are apionted for life by the various parties. A lot of them are considered to be party stooges (fortunetly due to the shear size of the house the effect they have is limited). Jeffery archer is considered to be a perticaly fine example of the flaws in this.

http://news.bbc.co.uk/1/hi/uk/1424501.stm

[Frank Newgent]

Originally posted by shanek
Here's a good site about a movement to repeal the 17th Amendment to the Constitution, the reasons why, etc.
Why stop there?

Let's abolish the US Senate altogether.

As I understand it, the old idea of placing the choice of US Senators in the control of state leaders was designed to ensure that these senators would be chosen by folks who had met their state's highest standards. Namely an ability to pass property-holding and religious qualifications.

[Frank Newgent]

Originally posted by geni

The closest thing we have to this in the UK are various party apointees to the house of lords.
From what I understand they are in no way equivalent to a US Senator in terms of real power.

Don't the British vest all legislative power in the House of Commons?

[Frank Newgent]

shanek

Wouldn't abolishing the US Senate outright alleviate certain problems (http://www.geocities.com/dave_enrich/ctd/college.html)with the Electoral College? Making the possibility of a third party candidate slightly more doable?

[Suddenly]

Originally posted by corplinx
Reasons for changing/altering the 17th:


Senator Strom Thurmond (RIP)
Senator Robert Byrd


These are exactly the sort of senators we would have if the legislature chose the senators. At least as long as the senority system is in place. Byrd is the biggest meal ticket in the mountain state, and we will keep sending him back even after he dies if we can.

Legislatures will be even more sensitive to the practical reality that sending the same guy back will help the state.

I'm all for ditching the 17th for the reasons shanek cites. The 17th is an example of poorly thought out populism that wreaked havoc on the vertical seperation of powers. But thinking that the quality of senators will go up is a bit far-fetched. We will have carreer hacks and assorted connected geeks. However, these hacks and geeks will do the bidding of the state hacks and geeks rather than the same idiots the house has to suck up to, as the senators won't have to worry so much about dough for the re-election campaign. This is the kind of diversity that can't but help.

[shanek]

Originally posted by geni
Do indivdual senitors have a veto power? If not what difference is one or two anoyed senitors going to make

All of the Senators would be elected by their state legislators.

Some of them appear to be good at being nice to voters

If by "being nice to voters" you mean "bullsh!77ing them and pulling the wool over their eyes," then I agree.

[shanek]

Originally posted by Frank Newgent
Let's abolish the US Senate altogether.

Don't tempt me...

[shanek]

Originally posted by Frank Newgent
Wouldn't abolishing the US Senate outright alleviate certain problems (http://www.geocities.com/dave_enrich/ctd/college.html)with the Electoral College? Making the possibility of a third party candidate slightly more doable?

I don't see how. Perhaps you could explain your thinking?

I think the Electoral College is ripe for a system of proportional representation. But that's another topic for another thread...

[Frank Newgent]

Originally posted by shanek


I don't see how. Perhaps you could explain your thinking?

I think the Electoral College is ripe for a system of proportional representation. But that's another topic for another thread...
Didn't intend to hijack. Just found the idea interesting.

I suppose that with no US Senate the Electoral College would have to go to. What use would it have?

So much for the 270 vote ceiling. National elections would be decided on something other than a strictly state level.

Third party candidates might be perceived as having a realistic shot were the process strictly democratic.

Here's an irony (http://www.geocities.com/dave_enrich/ctd/3p.roosevelt.html) considering the subject of this thread.

The Bull Moose party platform - "New Nationalism" - included direct election of U.S. Senators, the creation of an initiative, referendum, and recall process, woman suffrage, a national tariff reduction, child labor laws, old-age pensions, and other social reforms. Roosevelt's agenda had broad support. Despite splitting the Republican vote with Taft, and therefore losing the general election to the Democratic nominee, Woodrow Wilson, T.R. received 88 electoral votes and more than four million popular votes. He soundly defeated Taft; if Taft had not run, and those who had voted for Taft then voted for T.R., Wilson probably would have lost. No third party candidate has since come close to T.R.'s success. A final indication of Roosevelt's appeal and influence is that most of his agenda became law, in several cases through a strenuous constitutional amendment process.

[shanek]

Originally posted by Frank Newgent
I suppose that with no US Senate the Electoral College would have to go to. What use would it have?

The purpose of the Electoral College doesn't have anything to do really with the Senate. It's a balancing act between having equal representation among the states in a Presidential election and the popular opinion of the people. With the former, you get people whose vote is worth a lot more than others; with the latter, you get the entire election chosen by a very few locations. The Electoral College is a not-so-happy-but-adequate medium. The only real problem with it is the winner-take-all method in which the states select their electors. That leads to things like the Florida fiasco.

So much for the 270 vote ceiling.

It's not a ceiling, it's a majority. And it would just be lowered, is all, since you now have an overall lower number of electors.

[Frank Newgent]

Originally posted by shanek


The purpose of the Electoral College doesn't have anything to do really with the Senate. It's a balancing act between having equal representation among the states in a Presidential election and the popular opinion of the people. With the former, you get people whose vote is worth a lot more than others; with the latter, you get the entire election chosen by a very few locations. The Electoral College is a not-so-happy-but-adequate medium. The only real problem with it is the winner-take-all method in which the states select their electors. That leads to things like the Florida fiasco.



It's not a ceiling, it's a majority. And it would just be lowered, is all, since you now have an overall lower number of electors.
What's with the unnecessary lecture?

I was responding to your question about how eliminating the US Senate might make the possibility of electing a national third party candidate more doable.

[geni]

Originally posted by Frank Newgent

From what I understand they are in no way equivalent to a US Senator in terms of real power.

Don't the British vest all legislative power in the House of Commons?

You are correct I was drawing the parrel of people being selected by by politicains rather than the people.

[shanek]

Originally posted by geni
You are correct I was drawing the parrel of people being selected by by politicains rather than the people.

The people already have representation, in the House. And bills must originate in the House. The Senate was there to get approval from the representatives of the state governments as well. Checks and balances.

[Luke T.]

shanek, I really think you would like Democracy in America. I know I bring up a lot on here, and I don't know if it annoys anyone that I do, but I just think the man covered all the bases.

What follows is a little long, but see if this sounds familiar:

I think, then, that the species of oppression by which democratic nations are menaced is unlike anything that ever before existed in the world; our contemporaries will find no prototype of it in their memories. I seek in vain for an expression that will accurately convey the whole of the idea I have formed of it; the old words despotism and tyranny are inappropriate: the thing itself is new, and since I cannot name, I must attempt to define it.

I seek to trace the novel features under which despotism may appear in the world. The first thing that strikes the observation is an innumerable multitude of men, all equal and alike, incessantly endeavoring to procure the petty and paltry pleasures with which they glut their lives. Each of them, living apart, is as a stranger to the fate of all the rest; his children and his private friends constitute to him the whole of mankind. As for the rest of his fellow citizens, he is close to them, but he does not see them; he touches them, but he does not feel them; he exists only in himself and for himself alone; and if his kindred still remain to him, he may be said at any rate to have lost his country.

Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?


Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things;it has predisposed men to endure them and often to look on them as benefits.

That was what de Tocqueville predicted would happen in our country. Is he amazing, or what?

Source. (http://xroads.virginia.edu/~HYPER/DETOC/ch4_06.htm)

[gnome]

Originally posted by shanek


The people already have representation, in the House. And bills must originate in the House. The Senate was there to get approval from the representatives of the state governments as well. Checks and balances.

The idea is tempting in theory...

The problem I have with it right now is more practical... for the most part, I can't stand what our state congressmen come up with, and I cringe at the thought of a committee of them selecting our senators.

[Frank Newgent]

Originally posted by Luke T.

shanek, I really think you would like Democracy in America. I know I bring up a lot on here, and I don't know if it annoys anyone that I do, but I just think the man covered all the bases.

What follows is a little long, but see if this sounds familiar:



That was what de Tocqueville predicted would happen in our country. Is he amazing, or what?

Source. (http://xroads.virginia.edu/~HYPER/DETOC/ch4_06.htm)
Tyranny of the majority. Isn't that an oxymoron? And you quote a Frenchman?

Okay, nail me up for trying to turn this thread on its head. All in fun...

[Frank Newgent]

Originally posted by shanek


The people already have representation, in the House. And bills must originate in the House. The Senate was there to get approval from the representatives of the state governments as well. Checks and balances.
Didn't John Adams get his ideas concerning checks and balances from the British, where it originated as a three way balance between the monarch, the aristocracy and the common folk (or the one, the few, and the many)?

James Madison intoned: "the Senate ought to come from, and represent, the Wealth of the nation."

So much for Ben Franklin and Thomas Paine...

As far as merely copying the British goes, well, times have changed. (http://encyclopedia.thefreedictionary.com/Parliament%20Act)

[Kodiak]

I'm all for repealing the 17th Amendment exactly as Shanek has described, but how about we get the 10th Amendment enforced first?

[Suddenly]

Originally posted by Kodiak
I'm all for repealing the 17th Amendment exactly as Shanek has described, but how about we get the 10th Amendment enforced first?

Not that I want to go off on a tangent (yeah right... I never do that) but what is you would like to see w/r/t the 10th Amendment? Any specifics?

[shanek]

Originally posted by Kodiak
I'm all for repealing the 17th Amendment exactly as Shanek has described, but how about we get the 10th Amendment enforced first?

Believe me, I'm entirely open for ideas...

[Kodiak]

Originally posted by Suddenly


Not that I want to go off on a tangent (yeah right... I never do that) but what is you would like to see w/r/t the 10th Amendment? Any specifics?

Well...

In general, how about the Federal government discontinue, or turn over to the states, all programs and responsibilities not given to the three branches of Federal government by the Constitution and the laws created under its purview.

And because of the transgressions already made in defiance of the Tenth Amendment, we need another amendment or law (a lawyer or politician could clarify this better than I) requiring the Supreme Court to periodically review new and existing Federal laws and immediately, without the case having to first come to the court through another body and completely under its own constitutional authority, strike down any and all laws which are deemed by the Court as being unconstitutional. The Supreme Court could also be allowed to rule on a bill while it is still in Congress, in an effort to avoid wasting time and money.



Specifics? Give me some time and I'll try and make a list.

[tedly]

Frank Newgent cited:
James Madison intoned: "the Senate ought to come from, and represent, the Wealth of the nation."

I've been deeply worried by the inability of the wealthy to get representation in our modern government.

Time for the revolution, Up against the wall rabble!

[Kodiak]

Originally posted by Suddenly
Any specifics?

Here's one, for starters:

Federalizing state and local laws. (http://www.reason.com/0404/fe.wa.washingtons.shtml)

From the web article:
Federal law criminalizes nearly all robberies and schemes to de-fraud, many firearms offenses, all loan sharking, most illegal gambling operations, most briberies, every drug deal (regardless of the quantity involved), and many more crimes already addressed by state laws. Federal jurisdiction over essentially local crimes is contrary to the system of government envisioned by the Framers, under which Congress was to have only those powers specifically enumerated in the Constitution. When Congress legislates on matters such as the possession of guns in schools or the cultivation of marijuana in a closet, it makes a mockery of the 10th Amendment, which says, "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." As Chief Justice Rehnquist notes, "Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be."

[specious_reasons]

Originally posted by shanek


The people already have representation, in the House. And bills must originate in the House. The Senate was there to get approval from the representatives of the state governments as well. Checks and balances.

I might be forgetting my 8th grade civics lessons, but I thought that only appropriation bills needed to originate in the House.

Found it:
http://www.house.gov/Constitution/Constitution.html

Section. 7,Clause 1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

[Suddenly]

Originally posted by Kodiak


Here's one, for starters:

Federalizing state and local laws. (http://www.reason.com/0404/fe.wa.washingtons.shtml)

From the web article:
Federal law criminalizes nearly all robberies and schemes to de-fraud, many firearms offenses, all loan sharking, most illegal gambling operations, most briberies, every drug deal (regardless of the quantity involved), and many more crimes already addressed by state laws. Federal jurisdiction over essentially local crimes is contrary to the system of government envisioned by the Framers, under which Congress was to have only those powers specifically enumerated in the Constitution. When Congress legislates on matters such as the possession of guns in schools or the cultivation of marijuana in a closet, it makes a mockery of the 10th Amendment, which says, "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." As Chief Justice Rehnquist notes, "Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be."

So, I guess it is fair to narrow it down to the idea that the Constitution does not empower (perhaps more precisely "should not be read to empower") the Federal Government to adjudicate local crimes. This is a good example to illustrate why it appears many advocates of increased state power put inappropriate emphesis on the 10th Amendment.

First, a disclaimer. I actually agree with the Chief Justice as far as the above quote goes. I just don't think the 10th comes into it to any relevant degree.

Consider the text of the 10th:

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. (emphesis added)

So, the 10th really doesn't change anything in the document, and just provides the principle that if it isn't mentioned in the constitution, then the Feds can't do it. However, given the supremacy clause, if the Feds can do it, they overrule the states.

The operative question thus is: Does the Constitution allow the Federal Government to adjudicate local crimes?

The unfortunate truth of the matter is that the courts read the commerce clause so broadly that the answer to the above is largely "yes" as far as the courts are concerned. Thus, since the power is delegated (it is an exercise of the interstate commerce power), we can't say the 10th is violated.

We can agree that this is an absurd reading of the commerce clause, but then we are no longer really saying it is the 10th Amendment being violated as much as we are contemplating the misapplication of the commerce clause. If the commerce power is not found to justify a partcular law (like in Lopez), the law is struck down. That keeps with the 10th Amendment.

To be fair, it is technically correct that the 10th Amendment is being violated whenever there is an unconstitutional Federal statute. The problem is that in order for the 10th to be violated there must be an unconstitutional use of power, and to prove that we need to examine the relevent constitutional provisions, if any. The 10th is a general principle, but saying it needs to be applied more doesn't really make sense as a call for a more restrictive reading of the Federal government's powers. Heightened attention to 10th amendment issues would simply mean invalidating laws with no Constitutional authority, and does not at all reflect on how the Constitution itself is interpreted.

It seems more precise to just say that the Constitution should be read more narrowly w/r/t the powers of the Federal government.

[Kodiak]

Originally posted by Suddenly


So, I guess it is fair to narrow it down to the idea that the Constitution does not empower (perhaps more precisely "should not be read to empower") the Federal Government to adjudicate local crimes. This is a good example to illustrate why it appears many advocates of increased state power put inappropriate emphesis on the 10th Amendment.

First, a disclaimer. I actually agree with the Chief Justice as far as the above quote goes. I just don't think the 10th comes into it to any relevant degree.

Consider the text of the 10th:

(emphesis added)

So, the 10th really doesn't change anything in the document, and just provides the principle that if it isn't mentioned in the constitution, then the Feds can't do it. However, given the supremacy clause, if the Feds can do it, they overrule the states.

The operative question thus is: Does the Constitution allow the Federal Government to adjudicate local crimes?

The unfortunate truth of the matter is that the courts read the commerce clause so broadly that the answer to the above is largely "yes" as far as the courts are concerned. Thus, since the power is delegated (it is an exercise of the interstate commerce power), we can't say the 10th is violated.

We can agree that this is an absurd reading of the commerce clause, but then we are no longer really saying it is the 10th Amendment being violated as much as we are contemplating the misapplication of the commerce clause. If the commerce power is not found to justify a partcular law (like in Lopez), the law is struck down. That keeps with the 10th Amendment.

To be fair, it is technically correct that the 10th Amendment is being violated whenever there is an unconstitutional Federal statute. The problem is that in order for the 10th to be violated there must be an unconstitutional use of power, and to prove that we need to examine the relevent constitutional provisions, if any. The 10th is a general principle, but saying it needs to be applied more doesn't really make sense as a call for a more restrictive reading of the Federal government's powers. Heightened attention to 10th amendment issues would simply mean invalidating laws with no Constitutional authority, and does not at all reflect on how the Constitution itself is interpreted.

It seems more precise to just say that the Constitution should be read more narrowly w/r/t the powers of the Federal government.

Agreed, and much better put, might I add...

Being a narrow/strict constructionist, I of course think the entire Constitution should be interpreted strictly/narrowly, not just the 10th Amendment "being enforced".

[Luke T.]

It seems counterintuitive to me that a Libertarian would be less favorable to the idea of people directly electing their Senators than to the idea of adding an additional governmental body to the process of electing Senators. :)

As for the 10th Amendment discussion between Kodiak and Suddenly, I couldn't help thinking about the Rodney King case and how the cops were acquitted locally, and so the feds stepped in and convicted them on federal charges.

[Suddenly]

Originally posted by Luke T.


As for the 10th Amendment discussion between Kodiak and Suddenly, I couldn't help thinking about the Rodney King case and how the cops were acquitted locally, and so the feds stepped in and convicted them on federal charges.

That's a little "seperate sovereign" dodge around double jeopardy mixed in with a strong dose of commerce clause b*llsh*t.

I'll bet you had no idea that when the officers were beating up King they were affecting interstate commerce. Live and learn.

[shanek]

Originally posted by specious_reasons
I might be forgetting my 8th grade civics lessons, but I thought that only appropriation bills needed to originate in the House.

You are correct; I goofed on that one.

[shanek]

Originally posted by Luke T.
It seems counterintuitive to me that a Libertarian would be less favorable to the idea of people directly electing their Senators than to the idea of adding an additional governmental body to the process of electing Senators.

Then you misunderstand Libertarianism.

[Luke T.]

Originally posted by Suddenly


That's a little "seperate sovereign" dodge around double jeopardy mixed in with a strong dose of commerce clause b*llsh*t.

I'll bet you had no idea that when the officers were beating up King they were affecting interstate commerce. Live and learn.

Where do you get the commerce clause reading from? I've never heard of that.

I'm not trying to be antagonistic. I've just always been curious how the feds can do what they do.

My understanding of the King case was that the feds charged the cops with violating King's civil rights.

[Snide]

Originally posted by Luke T.


Where do you get the commerce clause reading from? I've never heard of that.

I'm not trying to be antagonistic. I've just always been curious how the feds can do what they do.

My understanding of the King case was that the feds charged the cops with violating King's civil rights.

Article I, Section 8. The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

The Court's liberal interpretation of what it means to "regulate commerce...among the several states" allows Congress to get away with a lot. In some areas the Court has still taken a stand, but in others, well, not so much.