Althouse: "I know that most politicians say we want everyone to vote, I’m gonna be honest with you, I don’t want everyone to vote."

September 23, 2015

"I know that most politicians say we want everyone to vote, I’m gonna be honest with you, I don’t want everyone to vote."

"If they’re so stupid — that’s right, if they’re gonna vote for me they need to vote, if they’re not gonna vote for me they need to stay home. I mean, it’s that simple... But in the big picture, there are people who vote and they have no idea what our Constitution says... They have no idea what the limitations of government are supposed to be. The fact that the 10th Amendment expresses it very clearly, that if it’s not expressly written in our federal charter called the Constitution those power stay to the states."

Said Mike Huckabee, who seems to be mixing the Constitution up with the Articles of Confederation.

Articles of Confederation, Article II: "Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

Constitution, Amendment 10: "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."

But I'd still let Huckabee vote.

190 comments:

tim maguire said...: People who haven't bothered to research the issues they care about and the stances of the politicians on those issues can't cast an informed vote. Those people have a responsibility to society to stay home on election day.

Which is very different from saying they shouldn't be allowed to vote; which, contrary to your suggestion, Huckabee is not saying.; 9/23/15, 8:24 AM
Unknown said...: He is not wrong

I have taught constitutional law...to children; 9/23/15, 8:28 AM
Ignorance is Bliss said...: ...who seems to be mixing the Constitution up with the Articles of Confederation.

I doubt it seems that way to the vast majority of people. His was a reasonable, if imprecise, summary of the 10th amendment.; 9/23/15, 8:28 AM
Brando said...: Everyone agrees that there are people who should not be voting, but they disagree on who those people are. Such is democracy!

Ultimately, we deserve what we elect.; 9/23/15, 8:33 AM
Sebastian said...: Huckabee is closer to the 10th than SSM is to the 14th.; 9/23/15, 8:33 AM
Original Mike said...: People who aren't motivated enough to get to the polls are very unlikely to have put in the effort to understand the issues and candidate positions. Their not voting is a good thing.

It's not a coincidence that it's the Democrats who support mail-in ballots and mandatory voting proposals.; 9/23/15, 8:37 AM
Brian said...: I see that there is some imprecision in his description of the 10th, but I don't see the Articles in there at all. Because he used the word "expressly"? That's pretty weak.; 9/23/15, 8:38 AM
amielalune said...: Huckabee is completely correct (never thought I'd type those words). People who can't be bothered to inform themselves about the candidates and issues before voting are failing in their duties as a citizen and should also not bother to vote.

But it's not hard to convince an idiot of something, and politicians (mostly the Dems) have convinced huge numbers of them that it's their duty to vote Democrat and that's all they need to know.; 9/23/15, 8:39 AM
Kyzer SoSay said...: Sometimes I wonder if basic civics quizzes should be given before allowing someone to vote. I know, I know, dasss racisss. But seriously, if you can't name the VP, the Senate Majority/Minority leaders and their party affiliations, the Speaker of the House and his/her party affiliation, and the three branches of government along with a one sentence description of their basic function, you're too dumb to be voting in my opinion. Note that people can be coached on these answers pretty easily, so it might not stop anyone from voting. But at least they might go into the booth a little more informed. And some people might be so dumb that they forget the coached answers in the 20 steps it takes to get from outside the door to the registration table to the voting booth, especially if there is a line and the coaches aren't allowed in the building.; 9/23/15, 8:40 AM
Kyzer SoSay said...: This comment has been removed by the author.; 9/23/15, 8:41 AM
SeanF said...: I'm agreeing with the others, Ann. You're going to have to explain what, exactly, you think is wrong with his summation of the 10th Amendment.; 9/23/15, 8:42 AM
Kyzer SoSay said...: Note also that I'm assuming in my above post that asking someone to name the President would be like asking someone where wood comes from - insultingly easy and best left off the quiz.; 9/23/15, 8:42 AM
Fernandinande said...: ...there are people who vote and they have no idea what our Constitution says... They have no idea what the limitations of government are supposed to be.

Typically 5/9ths of the supreme court, for example.

Brian said...
Because he used the word "expressly"? That's pretty weak.

Indeed.; 9/23/15, 8:42 AM
Brando said...: "Sometimes I wonder if basic civics quizzes should be given before allowing someone to vote. I know, I know, dasss racisss."

That's the problem--it's not that a voting test in itself is racist (some might argue that it penalizes the uneducated, and the uneducated tend to dominate in certain racial groups, so this would have a discriminatory impact if not discriminatory intent, but this impact should be outweighed by the relative simplicity of the questions and the civic necessity of informed voters). The problem is that all such qualifications have been tainted by how they were used historically, usually in a discriminatory fashion (e.g., only giving the test to black voters, or giving them a harder test such as "what does the fifth clause in our state's constitution protect?" while white voters get "can you name any president this country ever had? Hamilton, you say? Close enough!").; 9/23/15, 8:50 AM
Once written, twice... said...: Huckleberry is the twit who stood next to that other twit Kim Davis. It's hillbilly heaven around here.; 9/23/15, 8:56 AM
CJinPA said...: "....making it easier to vote/register to vote..."

THIS^ is the phrase you have to look out for.

It's beyond specific knowledge of the Constitution or the proper citizen/state relationship. It's people who are too civically lazy to register to vote, and those who want to make it easier for such people to vote, that you have to look out for.

In my state, it's more likely that Democrats seek legislative changes designed to get these people to the polls than any other party.; 9/23/15, 8:57 AM
John Borell said...: Hate to pile on, but I agree with SeanF and others - I can't see where Huckabee was that wrong on trying to sum up the 10th Amendment.; 9/23/15, 8:57 AM
Bruce Hayden said...: Well, I would ask how anyone who have researched the candidates adequately could vote for him. Still, I have this vision in my head of a permanent stage at the White House where he can play for the country with his band every week, maybe interspersed with little fireside homilies. He could maybe permanently preempt the 6-7 pm Sun slot, or maybe just 60 Minutes. Originally, I thought the stage should be outdoors, but indoors would work too. I was thinking maybe "The Pres" on his guitar strap, but then thought that the Presidential seal might be better. And finally, was thinking what "Hail to the Chief" would sound played by that band of his. Sometimes I would inadvertently get stuck for a bit watching his show on Fox, but would know I needed to change channels when he would start putting on his guitar. The guy made hokie an art form. I don't think that everyone in Arkansas is a hillbilly, but Gov Huckledoodle always made me wonder.; 9/23/15, 8:58 AM
Static Ping said...: So what's wrong with his statement, exactly? He seems to be correct, at least in general terms.; 9/23/15, 9:00 AM
Birkel said...: I cannot stand Huckabee.

But he is wrong about the 10th Amendment because the Supreme Court has read it to be a dead letter. It does no work in modern jurisprudence (or close enough for government work).
Therefore,Huckabee must be wrong.; 9/23/15, 9:06 AM
Birkel said...: This comment has been removed by the author.; 9/23/15, 9:06 AM
garage mahal said...: If we cut taxes on the rich they'll invest that money and create jobs for everyone!

If you're still dumb enough to believe that you shouldn't be able to vite.; 9/23/15, 9:06 AM
Birkel said...: If you still believe in socialism, "garage mahal", you are too stupid, voting notwithstanding.; 9/23/15, 9:07 AM
Roughcoat said...: I'll admit ... I see little substantive difference between Article II and Amendment 10. Can someone here explain it to me? I guess I knew the difference in 8th Grade when I took the Constitution test, but now ... I'm a dummy.; 9/23/15, 9:08 AM
MadisonMan said...: I volunteer to be the one who gets to decide if people are smart enough to vote.

Please send me your qualifications.

I promise to be fair. Cruelly fair.; 9/23/15, 9:08 AM
Laslo Spatula said...: Althouse is just being feisty with this one.

I am Laslo.; 9/23/15, 9:13 AM
garage mahal said...: Give us your unions and healthcare and we'll make you rich!; 9/23/15, 9:14 AM
Kyzer SoSay said...: Oh, Garage. Your drive-by quips are just adorable. Like a toddler with his shoes on the wrong feet.; 9/23/15, 9:17 AM
Ron Winkleheimer said...: Like everyone else here, I too think his summary of the 10th amendment is close enough for government work.

I realize that the Professor teaches constitutional law, and therefore probably demands more precise language from her students, but as a summary to the lay person (and as a lay person) I see no fault in it.; 9/23/15, 9:18 AM
Jason said...: Huckabee has weighed in against Same Sex Marriage. He's also a Christian.

That means Althouse has to shed 30 IQ points whenever she posts about him.

Extra points for cattiness.; 9/23/15, 9:24 AM
Bill, Republic of Texas said...: are reserved to the States

Another "nig" type post from Althouse. Sometimes she stretches too much to find a "gotcha!"; 9/23/15, 9:28 AM
Unknown said...: "...he is wrong about the 10th Amendment because the Supreme Court has read it to be a dead letter."

Maybe the quote ought to be expanded to voting on the bench.; 9/23/15, 9:32 AM
Nonapod said...: I dislike Huckabee, but his description of the 10th seems accurate.

Huckabee said: "if it’s not expressly written in our federal charter called the Constitution"
The 10th Amendment says: "The powers not delegated to the United States by the Constitution"
Huckabee said: "those power stay to the states"
The 10th Amendment says: "are reserved to the States respectively"

Could someone explain the differences?; 9/23/15, 9:34 AM
Ken B said...: Feeble. A quick summary off-the-cuff of the main import of the 10th amendment is an egregious error because it doesn't quote the whole thing? Cruel neutrality in action: she slams Huckabee when he's wrong, and she slams him when he's right: neutral!

Next time Althouse talks about rights under the 14th amendment will she mention debts held illegal and void?; 9/23/15, 9:37 AM
Gusty Winds said...: And Democrats was undocumented citizens, felons, and dead people still on the voter rolls to vote (see Chicago). Blanket amnesty is just a way to pad the their voter base whose vested interest in the franchise is gov't assistance.

But during the 2000 Florida debacle, the Democrats did everything they could to suppress military absentee ballots, and those military personal are very much a part of the franchise.

It's all bullshit.

“When the people find that they can vote themselves money, that will herald the end of the republic.” - Benjamin Franklin; 9/23/15, 9:42 AM
Paco Wové said...: Looks like it's "let's laugh at the stupid Republicans" day at Althouse.; 9/23/15, 9:43 AM
James Pawlak said...: I only want one person to vote---ME! Then I will elect myself the Ruler of this world.; 9/23/15, 9:49 AM
mccullough said...: Huckabee is a big government conservative so it's not surprising he omits the "people" in his summation of the 10th Amendment. While failing to point out that the 10th Amendment also refers to powers the Constitution prohibits the state's from having is understandable, the omission of power reserved to the people is telling.; 9/23/15, 9:49 AM
Ann Althouse said...: The omission of the word "expressly" is important. That's not me nitpicking. That's me telling you the most basic thing you learn in Conlaw1, a course I've taught for 20 years.; 9/23/15, 9:50 AM
Original Mike said...: "If you're still dumb enough to believe that you shouldn't be able to vite."

If you can't spell vote, you shouldn't be allowed to.; 9/23/15, 9:51 AM
Ann Althouse said...: Ironically, the people who want the words to matter turn around and say the words don't matter when they don't like the words.; 9/23/15, 9:52 AM
Rick said...: It would be better to advance an education process as a voting requirement rather than poll tests which recall memories of their outrageous use supporting Jim Crow. Something like an hour class discussing each of the candidates positions. You'll still be called racist but the claims will be closer to claiming racism over voter ID rather than actual racism.

Paco Wové said...
Looks like it's "let's laugh at the stupid Republicans" day at Althouse.

Isn't that every day? Her desire for a decent / better left doesn't mean she doesn't share the left's disdain of the right.; 9/23/15, 9:53 AM
Laslo Spatula said...: Althouse doubles down on feisty.

I am Laslo.; 9/23/15, 9:53 AM
Nonapod said...: Thanks. Obviously IANAL, so the presence or absence of the word "expressly" didn't seem hugely significant to me.; 9/23/15, 10:01 AM
Patrick Henry was right! said...: A Law Professor reaches Con Law 1 for 20 years and does not understand the meaning of the Bill of Rights. That explains a lot. The 10th Amendment, which is part of the Bill of Rights was adopted by the people and it says that the federal government is one of limited and express power and that sovereignty rests with the states and the people. The fact that the Supreme Court chooses not to follow the Constitution is a different problem.; 9/23/15, 10:01 AM
Ken B said...: "The omission of the word "expressly" is important. That's not me nitpicking. That's me telling you the most basic thing you learn in Conlaw1, a course I've taught for 20 years."

This is weak. He wasn't writing a brief, he was answering a questioner. He was making a point about people's understanding not teaching conlaw1.; 9/23/15, 10:09 AM
Gabriel said...: The omission of the word "expressly" is important. That's not me nitpicking. That's me telling you the most basic thing you learn in Conlaw1, a course I've taught for 20 years.

explicitly; clearly. for a specific purpose; solely.

10th Amendment refers to all powers, expressly written in the Constitution or not. So it doesn't foreclose the United States having powers not spelled out in the Constitution, and those unexpressed powers then need not be reserved to the States or to the people.; 9/23/15, 10:12 AM
DKWalser said...: Althouse -- You usually cut someone more slack when they are speaking off the cuff. In this case, Huckabee's phrasing was adequate for his audience. It wouldn't have been sufficient for oral argument in a court, nor would it have been adequate for a law exam. But, for making the point that too few understand that the Constitution limits the powers and responsibilities of the federal government, his summary was fine.; 9/23/15, 10:14 AM
Ignorance is Bliss said...: The omission of the word "expressly" is important. That's not me nitpicking. That's me telling you the most basic thing you learn in Conlaw1, a course I've taught for 20 years.

Could you give some examples of powers delegated to the United States by the Constitution, but not expressly delegated, so that we can understand this importance?; 9/23/15, 10:16 AM
Ignorance is Bliss said...: Gabriel said...

explicitly; clearly. for a specific purpose; solely.

10th Amendment refers to all powers, expressly written in the Constitution or not. So it doesn't foreclose the United States having powers not spelled out in the Constitution, and those unexpressed powers then need not be reserved to the States or to the people.

Could you give examples of powers not spelled out in the Constitution that are delegated by the Constitution to the federal government?; 9/23/15, 10:19 AM
BN said...: There are only two political parties that have a chance. These two parties do have distinct differences that are fairly permanent. Taxes higher or lower? More or less govt control? More or less military spending/action? More or less welfare? And so on. So you dont really need to know the particulars to know how you want to vote. (Perhaps it matters in the primary to know something about the candidates and their policy plans, but not in the general.)

I dont understand independents. I guess some people just can't make up their minds on what they believe. So I'd let the uninformed vote, but I'd prohibit the indecisive from doing so. Sorry Professor, no soup for you.; 9/23/15, 10:19 AM
Tank said...: Cruel neutrality !; 9/23/15, 10:19 AM
Skeptical Voter said...: Ah Huckabee--an amiable Arkansas schmuck. He's a good retail politician, but what can you say about a fellow who roasted squirrels over a hot air corn popper in his dorm room at Central Arkansas Baptist College? [His defense was that hot air corn poppers were the only cooking instruments allowed in the dorm. The squirrels were unavailable for comment.]

The pandering progressive putzes at the New York Times would have a field day with the Huckabee background were he to become the GOP nominee.; 9/23/15, 10:20 AM
Ignorance is Bliss said...: Gabriel-

The word in question is expressly, not explicitly.; 9/23/15, 10:23 AM
Static Ping said...: Ann: The omission of the word "expressly" is important. That's not me nitpicking.

Actually, given that this is an off the cuff remark, it is the definition of nitpicking.

Bad form.; 9/23/15, 10:26 AM
Nonapod said...: Could you give examples of powers not spelled out in the Constitution that are delegated by the Constitution to the federal government?

Would laws created by congress count as "powers"?; 9/23/15, 10:27 AM
Thorley Winston said...: explicitly; clearly. for a specific purpose; solely.

10th Amendment refers to all powers, expressly written in the Constitution or not. So it doesn't foreclose the United States having powers not spelled out in the Constitution, and those unexpressed powers then need not be reserved to the States or to the people.

Gabriel gets it. The reason why this distinction is important is so often we have people making arguments that consist of saying if a particular word (e.g. drugs, marriage, etc.) are missing from the Constitution that automatically it was something that the federal government couldn’t do under the Constitution. That may have been true under the Articles of Confederation but it’s not the way that Constitution works.; 9/23/15, 10:27 AM
BN said...: Even in the Dem primary, it's just Bolshevik or Menshevik. Just decide what you believe and get on with it.; 9/23/15, 10:28 AM
Static Ping said...: Skeptical Vote: ...what can you say about a fellow who roasted squirrels over a hot air corn popper in his dorm room at Central Arkansas Baptist College? [His defense was that hot air corn poppers were the only cooking instruments allowed in the dorm. The squirrels were unavailable for comment.]

Frankly, that makes me like him more. I'm not going to vote for him, but that is awesome.; 9/23/15, 10:29 AM
Skeptical Voter said...: Sorry about that: I got Huckabee's undergrad college wrong.
He went to Ouachita Baptist University in Arkadelphia Arkansas. But I got the squirrels right--there were hardly any left in Arkadelphia when Huckabee was in school.

And unlike Billy Jeff Clinton who claimed that he was "The Man From Hope" (Arkansas that is) Huckabee was actually born in Hope Arkansas.

But The Huckster has an interesting background. He was in Christian broadcasting for a while. He was a pastor at Baptist churches, and the president of the Arkansas Baptist Convention in the 1980's. Four years as Lt. Governor of Arkansas, and almost 12 years as Governor of Arkansas.

He's a nice genial guy, but I've had it up to here with Arkansas politicians.; 9/23/15, 10:32 AM
Thorley Winston said...: Could you give examples of powers not spelled out in the Constitution that are delegated by the Constitution to the federal government?

Chartering a national bank and the Louisiana Purchase both come to mind.; 9/23/15, 10:32 AM
Ignorance is Bliss said...: Thorley Winston said...

Chartering a national bank and the Louisiana Purchase both come to mind.

So where in the Constitution is this power delegated to the federal government?; 9/23/15, 10:35 AM
Gahrie said...: . The reason why this distinction is important is so often we have people making arguments that consist of saying if a particular word (e.g. drugs, marriage, etc.) are missing from the Constitution that automatically it was something that the federal government couldn’t do under the Constitution. That may have been true under the Articles of Confederation but it’s not the way that Constitution works.

It may not be how the Constitution works, but it is the way the Constitution was designed to work and was supposed to work, until the Anti-federalists screwed things up with the Bill of Rights.; 9/23/15, 10:40 AM
Birkel said...: You guys arguing about what the Tenth Amendment allows the federal government to do are so cute.

The Tenth Amendment has as much power today as the Eighteenth Amendment.

Because: SCOTUS ignores it as constitutionally inconvenient.; 9/23/15, 10:49 AM
Alexander said...: The omission of the word "expressly" is important. That's not me nitpicking. That's me telling you the most basic thing you learn in Conlaw1, a course I've taught for 20 years.

It can't be that important, since the Supreme court is more than happy to fill in the blanks whenever it wants too.; 9/23/15, 10:50 AM
Ann Althouse said...: From the casebook we're using in conlaw1 (at page 6):

"The Constitution changed the framework set up by the Articles of Confederation in a number of ways. Among the most important changes were the creation of an executive branch; the grant to Congress of the powers to tax and to regulate commerce; and the creation of a federal judiciary, including the Supreme Court and, if Congress chose, lower federal courts. The tenth amendment, added two years later, was a pale echo of the first provisions of the Articles of Confederation, deleting the word “expressly,” and it was countered by the clause granting Congress the authority to make “all laws necessary and proper” to effectuate the enumerated powers of the federal government."; 9/23/15, 10:50 AM
Birkel said...: Interstate: inside one state, between the states; potato, spud.

Commerce: Things done for money, or not, whether transferred to another person, or not.

Tenth Amendment: Apply the constitutionally inconvenient to Progressive collectivist doctrine.; 9/23/15, 10:52 AM
Birkel said...: Necessary has been taken for quite the workout.

Has proper received much attention, ever?; 9/23/15, 10:54 AM
Birkel said...: I ask in jest about the role of proper, after all.
Proper means whatever furthers the Progressive, collectivist position on any matter, at precisely that moment, with reservation to change the meaning as convenient.; 9/23/15, 10:56 AM
SeanF said...: Gabriel: 10th Amendment refers to all powers, expressly written in the Constitution or not. So it doesn't foreclose the United States having powers not spelled out in the Constitution, and those unexpressed powers then need not be reserved to the States or to the people.

I don't understand this. The 10th Amendment, as a whole, refers to all powers, but the "reserved to the States or to the people" part doesn't necessarily refer to all powers?; 9/23/15, 10:57 AM
Ignorance is Bliss said...: The tenth amendment, added two years later, was a pale echo of the first provisions of the Articles of Confederation, deleting the word “expressly,” and it was countered by the clause granting Congress the authority to make “all laws necessary and proper” to effectuate the enumerated powers of the federal government."

So the constitution expressly delegates to the federal government the power to make all laws necessary and proper to effectuate the enumerated powers of the federal government.

And only those enumerated powers.

So what did Huckabee get wrong?

And why are you using a casebook that leaves out the critical word interstate, or references to foreign Nations or Indian tribes?; 9/23/15, 11:03 AM
Sebastian said...: "to make “all laws necessary and proper” to effectuate the enumerated powers"

You mean, expressly enumerated? Or are there any unexpressly enumerated powers?; 9/23/15, 11:06 AM
Patrick Henry was right! said...: Except that the 10th Amendment, bring adopted after the Constitution, controls over the necessary and proper clause, to the extent that they are in conflict.; 9/23/15, 11:08 AM
Birkel said...: Remove the operative word "expressly" and the Tenth Amendment loses some force.

So now, Althouse, teacher of Constitutional Law, tell we students what work the Tenth Amendment does and why it is included at all... from a doctrinal perspective.

If the removal of one word makes the whole Amendment moot, are you not violating the same statutory construction rules you mean to hold Huckabee (I loathe the man.) to follow? And if that is not so, please point to the vibrant line of modern cases that admit of the Tenth Amendment's value to the whole.

I would be interested to know more, sincerely.; 9/23/15, 11:08 AM
Bob Ellison said...: This thread clarifies the division between trained legal reading and sensible reading.; 9/23/15, 11:09 AM
Patrick Henry was right! said...: Also, the necessary and proper clause only applies to enumerated powers which can only be enumerated if they are expressed. I concede, as I must, that the Supreme Court has made this temporarily moot, but one can always hope for a return to the rule of law and the Constitution.; 9/23/15, 11:10 AM
Hagar said...: What one Supreme Court finds can be changed or denied by a following Court, but the Constitution remains.

AA teaches young lawyers, who are supposed to stick with the Court decisions until the Court changes its mind.

However, the Court is unlikely to change its mind about much of anything, unless upstart lawyers come up with cases that forces it to do so.; 9/23/15, 11:13 AM
Ignorance is Bliss said...: I would love to see a presidential debate question along the lines of the following:

The Tenth Amendment 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." Please name some powers the federal government does not have because they were not delegated to the federal government, rather than because the federal government was expressly forbidden them.; 9/23/15, 11:15 AM
William said...: He's not my top choice, but I would be comfortable with a Huckabee presidency. I watched the debate and admired his defense of Kim Davis. Kim Davis is overweight, divorced, and militantly Christian. She's easy to make fun of, but he stood beside her.....When a leftist defies the law, they're King in the Birmingham jail. When someone on the right defies the law, they're Wallace at the schoolhouse door. Good for Huckabee to speak up for that much ridiculed woman and claim for the same right to accommodation as the Ft. Hood shooter.; 9/23/15, 11:18 AM
Gabriel said...: Seriously, guys, draw a Venn diagram or something if you don't get it. I am a firm believer in limited government but I didn't write the Tenth Amendment. So the fact that I wouldn't have written that way does not alter what it says.

Powers can be expressed or unexpressed.

Powers can be delegated to the United States by the Constitution, or reserved to the States and people.

So that's four types of powers according to the Tenth Amendment:

expressed, delegated to the US by the Constitution
unexpressed, delegated to the US by the Constitution
expressed, reserved to the States or to the people
unexpressed, reserved to the States or to the people

That's what's written there. You can't just throw out two of the categories.

I too think the Federal government sticks its fat snout into too much of the people's and the States' business, but what do you expect from a nation of plains apes? Dead people can't protect us from the living. If you want a smaller government you have to keep pruning it. The Federal apparatus is not going to vanish in a puff of smoke just because of a clause you found in a document, that's not how societies actually work. Rather, the Federal apparatus will (and has) bend the interpretation of that clause in a way that supports them, and the only cure for that is political engagement.; 9/23/15, 11:22 AM
Achilles said...: Wow, Huckabee found the 10th amendment! Does that mean he will stop trying to impose various social/moral restrictions via the Federal Government? Obviously not.; 9/23/15, 11:28 AM
Hagar said...: As Ben Franklin said: "A republic, if you can keep it, Madam."; 9/23/15, 11:28 AM
Bilwick said...: Certainly the more the franchise has broadened, the more statist we've become.; 9/23/15, 11:29 AM
Patrick Henry was right! said...: Gabriel, if government powers can be unexpressed, then there can be no limits on government by a written Constitution. You are arguing for the English system, which the Constitution was written to improve upon by limiting the government.

Let me ask yoi, does the federal government have an unexpressed power to take property or invalidate contracts? Which branch has this unexpressed power?

The density of the left knows no limits.; 9/23/15, 11:32 AM
Gabriel said...: @Ignorance is Bliss:Please name some powers the federal government does not have because they were not delegated to the federal government

The power to appoint a governor of a state. The power to decide if a state has a unicameral or bicameral legislature. The power to enforce state criminal laws. Now you try.; 9/23/15, 11:32 AM
Gabriel said...: @Basil:if government powers can be unexpressed, then there can be no limits on government by a written Constitution.

Yes there can, but even if there can't, take it up with the people who wrote it and tell them they did it wrong. The fact is they had the opportunity to do it the "right" way, they used to do it that way, but they decided to change it. Perhaps you'll find clues to what they though they were doing in the deliberations of Congress when they approved the Bill of Rights.

Let me ask yoi, does the federal government have an unexpressed power to take property or invalidate contracts?

The takings clause gives them an expressed power to take property. I don't think they have an unexpressed power to break contracts between private citizens. I know they don't have the unexpressed power to appoint state governors or enforce state criminal laws.

The density of the left knows no limits.

I agree, but this statement has nothing to do with me, as I am not a leftist.; 9/23/15, 11:37 AM
Nonapod said...: Gabriel said...

Powers can be expressed or unexpressed.

Powers can be delegated to the United States by the Constitution, or reserved to the States and people.

So that's four types of powers according to the Tenth Amendment:

Except the Tenth Amendment doesn't actually have the word "expressed" in it. In fact I don't believe the word "expressed" appears anywhere in the Constitution.; 9/23/15, 11:38 AM
SeanF said...: Gabriel: So that's four types of powers according to the Tenth Amendment:

expressed, delegated to the US by the Constitution
unexpressed, delegated to the US by the Constitution
expressed, reserved to the States or to the people
unexpressed, reserved to the States or to the people

That's what's written there. You can't just throw out two of the categories.

I have a problem with your second category, as it seems self-contradictory.

Can you give me a real-life example of an unexpressed power which is delegated to the US by the Constitution? Include the text of the Constitution which delegates it without expressing it, please.; 9/23/15, 11:39 AM
Static Ping said...: Oh, good grief, I just realized you linked to Buzzfeed.; 9/23/15, 11:45 AM
Ignorance is Bliss said...: Gabriel said...

Now you try.

The power to regulate the growing of wheat for personal consumption or sale within state ( execpt to an Indian tribe in state ).
The power to regulate child labor.
The power to prohibit states from outlawing abortion.
The power to mandate that a product or service be purchased; 9/23/15, 11:48 AM
Gabriel said...: @SeanF:Can you give me a real-life example of an unexpressed power which is delegated to the US by the Constitution? Include the text of the Constitution which delegates it without expressing it, please.

Article IV Section IV:The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

Since the Constitution does not spell out how this is to be done, the execution of this clause would have to be through an unexpressed power, like calling out the National Guard to depose a Huey Long type of governor.

That's why powers are unexpressed. The expressed powers might entail the assumption of an unexpressed (and unforseen) power.; 9/23/15, 11:51 AM
Gabriel said...: @Ignorance is Bliss:The power to regulate the growing of wheat for personal consumption or sale within state ( execpt to an Indian tribe in state ).
The power to regulate child labor.
The power to prohibit states from outlawing abortion.
The power to mandate that a product or service be purchased

I agree 100%, but other people don't, and right now they have it their way. Once you convince a large fraction of your fellow countrymen to see it your way, and act on it, you may end up restoring these powers to the States or to the people.; 9/23/15, 11:53 AM
Birkel said...: Gabriel,
Your attempt to prove the tautology you have constructed is breathtaking. Congratulations!; 9/23/15, 11:53 AM
Gabriel said...: @Birkel:Your attempt to prove the tautology you have constructed is breathtaking. Congratulations!

Don't wade into waters you're not able to swim in. Tautologies need no proof.

Again, I didn't write the Tenth Amendment. Take your complaints to those who did, and Did It Wrong.; 9/23/15, 11:55 AM
Birkel said...: Neither does your reading of the Tenth Amendment need proof. Further, it reads all meaning out of the Tenth Amendment, violating standard rules of construction.

What work does the Tenth Amendment do, under your reading? Name one thing it does, at all.; 9/23/15, 11:59 AM
Birkel said...: Also, wading would be appropriate if unable to swim.

Get at least one thing correct when attempting a retort, please.; 9/23/15, 12:00 PM
SeanF said...: Overturning a non-republican government is the power there, and it's expressed. Sending in the National Guard is just the method by which they are exercising that power.; 9/23/15, 12:04 PM
Birkel said...: Open Question:
If the Court simply decided to ignore any other Constitutinal provision -- like I has the Tenth Amendment -- what should it be?

And would I be compelled to follow the Court's command?; 9/23/15, 12:06 PM
Alexander said...: I agree 100%, but other people don't, and right now they have it their way. Once you convince a large fraction of your fellow countrymen to see it your way, and act on it, you may end up restoring these powers to the States or to the people.

Yeah, funny how that live-and-let-live-until-you're-a-popular-majority didn't apply to abortion, healthcare, or gay marriage. And how the gun control crowd has no respect for it either.

'Large fraction of your fellow countrymen' isn't worth a bucket of warm spit next to five judges and a constitutional law textbook that omits words it doesn't like.; 9/23/15, 12:16 PM
Alexander said...: And would I be compelled to follow the Court's command?

Yes. You'd be sent to prison and then allowed out provided you allowed your subordinates to follow the command and didn't interfere.; 9/23/15, 12:18 PM
damikesc said...: I don't think they have an unexpressed power to break contracts between private citizens.

FDR sure did it. Forced all contracts to change demands for payment from gold to currency not backed up by gold. Neither party to the contract agreed to the deal, but FDR wanted that gold.; 9/23/15, 12:19 PM
Ken B said...: Althouse seems to think her critics do not understand how the lack of 'expressly' has affected ruling. But that's not the case. Her post was a criticism of Huckabee and the complaints here have been about whether that complaint is picayune. It is. Huckabee wasn't even talking about a specific law or court decision and butressing his objection with the 10th amendment. He was talking to an interviewer about people not understanding the general principle that the federal government has only limited powers, and cannot by default do whatever it chooses.; 9/23/15, 12:22 PM
Birkel said...: damikesc,
FDR disregarded the Constitution at many turns. His Court Packing Plan gave him leverage over all branches, managing to prolong and deepen the Great Depression.

Funny how collectivist are so go at producing negative results, ain't it?; 9/23/15, 12:23 PM
Sigivald said...: Is, in practice, any power reserved "to the people" and not "the states", these days?

Can't think of any, offhand.

In practice, the 10th Amendment seems to delegate all powers that aren't Federal [and given recent Commerce Clause etc. rulings it seems that that's very few, indeed, including "commerce that is entirely contained within one state"] to the States, which themselves might Constitutionally decide they lack them - though at that point they seem to not so much reserve them to the People as deny that anyone has them.

(That is not, I rush to confirm, a bad thing - some powers nobody should have, and that's fine.

I just can't think of any powers that are devolved to "the people" as such.); 9/23/15, 12:27 PM
Sigivald said...: (Also, Ken B is right.

Huckabee's really just saying that the Federal government does not have plenary power.

Something widely forgotten, on both Left and Right, though it seems far more common on the Left, if only because the Right also has most of the "limited government" types.); 9/23/15, 12:28 PM
Jason said...: Didn't Obama do that all over the place with the auto bailout? Shredding bankruptcy laws in the process and shutting down a bunch of dealerships?; 9/23/15, 12:29 PM
HoodlumDoodlum said...: If you can find a penumbra or emanation to hide under then it's a personal right. If your personal right interferes with the operation of some large federal gov. program then it's not a personal right.

The necessary and proper clause means that there aren't any "powers not delegated to the United States by the Constitution," so the framers could have saved some ink when writing the 10th.
Look, anything you do will have some impact on commerce, so the commerce clause is all they need in most cases. Sure US v Lopez knocked that down a bit, but that wasn't until 1995, so we're talking almost 6 decades of free reign--plus what do you want to bet the current Court (or the Court after a couple of H. Clinton appointees) would do with the Lopez case if it came up today?

They don't have to use power in a way that abridges whatever rights you think you retain under the 10th, anyway. It can just be a tax, remember? All they need for a tax to be ok (with a majority of the Court) is some rational relation to a legitimate Gov. end. Sure, sure, you retain your rights, but if you want to do X you've got to pay a tax. Don't worry, though, we'll make some portion of X refundable to people who do what we want.

I'm getting over the idea that our Gov is constrained by the Constitution and the belief that most US citizens understand that the Gov should be. No one cares. Executive agencies are given almost unlimited discretion under intentionally-vague laws, so actual legislative authority vests somewhere other than the legislature. The Court doesn't mind. Executive agencies break the law and after years of fighting in the courts maybe they're told to scale something back--meanwhile a dozen other agencies have in the meantime stepped in to achieve some Gov end. Gov employees break the law and violate citizens' rights, but the Executive branch doesn't take any action (DOJ?? Ha) so what's the harm? The Court says the proper solution is the ballot box, but the agencies' transgressions make people they oppose have a harder time getting elected. Ho hum. No one cares.
The Federal gov. selectively adopts federalism, letting jurisdictions take actions the Gov doesn't oppose (sanctuary cities, etc) but vigorously attacking jurisdictions when they take local actions the Gov opposes (AZ immigration actions, etc). If a local jurisdiction wants to violate your 2nd Amendment rights contrary to a Court ruling (as DC is still doing) the Gov won't have much to say, but if a state does something the Gov decides is in any way contrary to what the Gov thinks your positive rights around something amorphous (privacy right to abortion access, say) it'll come down on that jurisdiction with a quickness.

Huckabee gave an imprecise précis of the 10th Amendment. He's a fool, obviously. Would any of the candidates to his left be able to give a coherent explanation of what federalism is (and should be) under the Constitution? Good thing no one will ever ask.; 9/23/15, 12:29 PM
Unknown said...: "Wow, Huckabee found the 10th amendment! Does that mean he will stop trying to impose various social/moral restrictions via the Federal Government? Obviously not."

What specifically are you referring to? "Thou Shalt Not [murder]?" And (other than abortion), wouldn't even you think it a good idea to impose this "social/moral" restriction?; 9/23/15, 12:32 PM
Ann Althouse said...: ""The omission of the word "expressly" is important. That's not me nitpicking. That's me telling you the most basic thing you learn in Conlaw1, a course I've taught for 20 years." This is weak. He wasn't writing a brief, he was answering a questioner. He was making a point about people's understanding not teaching conlaw1."

Oh, no. He was sticking his neck out calling other people stupid. Because of that, he deserves close scrutiny. And he is running for President, purporting to know what the Constitution means. There is absolutely no reason to go easy on him in this context.; 9/23/15, 12:33 PM
Ann Althouse said...: "Althouse -- You usually cut someone more slack when they are speaking off the cuff. In this case, Huckabee's phrasing was adequate for his audience. It wouldn't have been sufficient for oral argument in a court, nor would it have been adequate for a law exam. But, for making the point that too few understand that the Constitution limits the powers and responsibilities of the federal government, his summary was fine."

Ridiculous. He gets no slack. He's insulting other people and holding himself up as the smart one, parading his knowledge and asking to be selected to be the most powerful man in the world. He wants dumb people to mistake him for a constitutional expert. I call bullshit. Absolute bullshit on this man.

Your defense of him is making me much less sympathetic than I was when I wrote the post.; 9/23/15, 12:35 PM
jeff said...: I only voted for Eugene McCarthy cause a blonde would do me after going to the pols. Was my first time voting.; 9/23/15, 12:36 PM
Ann Althouse said...: "Could you give some examples of powers delegated to the United States by the Constitution, but not expressly delegated, so that we can understand this importance?"

The power to pass the Clean Air Act and the Clean Water Act.

The power to set up an air force and a space program.

The power to ban race discrimination in hotels and restaurants.; 9/23/15, 12:37 PM
Unknown said...: So, just to make this perfectly clear, if he had not included the word "expressly" you'd have been ok with it? Or would have required "delegated" to the get the AA seal of approval?; 9/23/15, 12:37 PM
Gabriel said...: I think the best Constitutional scholars on this thread are the ones claiming that the 10th Amendment is constrained by the necessary and proper clause. It's the only amendment that's overruled by the earlier text...

I always roll my eyes when appreciating brilliance.; 9/23/15, 12:39 PM
Ignorance is Bliss said...: Ann Althouse said...

The power to pass the Clean Air Act and the Clean Water Act.

The power to set up an air force and a space program.

The power to ban race discrimination in hotels and restaurants

Now could you point to where in the Constitution these powers were delegated to the federal government?; 9/23/15, 12:40 PM
Rusty said...: garage mahal said...
If we cut taxes on the rich they'll invest that money and create jobs for everyone!

If you're still dumb enough to believe that you shouldn't be able to vite.

Just what do you think "the rich" do with their money?; 9/23/15, 12:41 PM
Gabriel said...: Some background information on why the Founders rejected "expressly" from the Tenth Amendment. tl; dr they considered the issues raised here and made the decision anyway, it's not an oversight or a distortion to interpret the Tenth Amendment as written.

After the Constitution was ratified, South Carolina Representative Thomas Tudor Tucker and Massachusetts Representative Elbridge Gerry separately proposed similar amendments limiting the federal government to powers "expressly" delegated, which would have denied implied powers. James Madison opposed the amendments, stating that "it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia." The word "expressly" ultimately did not appear in the Tenth Amendment as ratified, and therefore the Tenth Amendment did not reject the powers implied by the Necessary and Proper Clause.

When he introduced the Tenth Amendment in Congress, James Madison explained that many states were eager to ratify this amendment, despite critics who deemed the amendment superfluous or unnecessary:

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

The states decided to ratify the Tenth Amendment, and thus declined to signal that there are unenumerated powers in addition to unenumerated rights. The amendment rendered unambiguous what had previously been at most a mere suggestion or implication.; 9/23/15, 12:42 PM
Birkel said...: Althouse:

What work does the Tenth Amendment do? Point to the case law that highlights how, upon the current reading, the Tenth Amendment is useful.

And if it is not valuable under the current reading, doesn't that violate the normal rules of construction.

Thank you.; 9/23/15, 12:42 PM
Gahrie said...: Just what do you think "the rich" do with their money?

Pile it up into big piles and then sleep on them, like a dragon.; 9/23/15, 12:47 PM
Ignorance is Bliss said...: Gabriel said...

I think the best Constitutional scholars on this thread are the ones claiming that the 10th Amendment is constrained by the necessary and proper clause. It's the only amendment that's overruled by the earlier text...

I didn't notice that being said. The proper statement is that the necessary and proper clause delegates power to the federal government, so the 10th amendment, by its own terms, does nothing to constrain that power.

That still leaves open the question of what is necessary and proper, which I believe has been stretched beyond all recognition.; 9/23/15, 12:48 PM
Rusty said...: Ridiculous. He gets no slack. He's insulting other people and holding himself up as the smart one, parading his knowledge and asking to be selected to be the most powerful man in the world. He wants dumb people to mistake him for a constitutional expert. I call bullshit. Absolute bullshit on this man.

Calm down. Don't get your g-string in a crack.

Don't worry. No one with half a brain is going to confuse his so-called constitutional expertise with yours.

He is talking about stupid people, after all. Most stupid people think they're brilliant- you just have to read some comments her to see that.
Now think about it. Would it be all that bad if stupid people mistook Mike Huckabee for a constitutional expert? All you have to do is look at garages posts and see that it might not be a bad idea.
Cmon, Althouse.
Lighten up.; 9/23/15, 12:50 PM
Alexander said...: The power to pass the Clean Air Act and the Clean Water Act.

The power to set up an air force and a space program.

The power to ban race discrimination in hotels and restaurants.

The idea that a national government in a free society gets to step in and determine who patrons a restaurant is as absurd as a professional athlete claiming the deity responsible for the existence of the universe is taking time out to help make a touchdown happen. I'm also curious as to where the line on this power is: can the government determine if I discriminate on who I invite to my birthday party? What if some guests are crossing state lines with presents bought in their home state!? What If I'm taking a group of friends out to dinner?

Freedom of association was killed for this tyranny.

For number two - the constitution allows the congress to raise an army and maintain a navy. So it probably shouldn't have an independent air force - which it wasn't until after WWII. But the act of using airplanes is hardly controversial: the constitution doesn't explicitly list which weapons said raised army can use. So how the airforce is an example of an important, unexpressed power of Congress is beyond me.; 9/23/15, 12:51 PM
Birkel said...: Shall I mark you down in 'the Tenth Amendment is superfluous' category, Gabriel?

Has it always been so?
Why did the citizens of the United States believe the 18th Amendment was necessary under that reading?; 9/23/15, 12:52 PM
Birkel said...: Ignorance is Bliss:

One quibble is that necessary has been stretched while proper is dutifully ignored.; 9/23/15, 12:53 PM
Gahrie said...: The omission of the word "expressly" is important.

It certainly wasn't to the Burger Court.

In a world of emanations and penumbras, omitting words is hardly Earth shattering.; 9/23/15, 12:56 PM
Gabriel said...: @Alexander:But the act of using airplanes is hardly controversial: the constitution doesn't explicitly list which weapons said raised army can use.

Shouldn't it have to? Why not? Who gets to decide what's an obvious consequence of an enumerated power vs a power the government was not granted?

Dead men cannot protect you from the living. The documents cannot enforce themselves, or stop people from reading what they want into them.; 9/23/15, 12:56 PM
Gabriel said...: @Birkel:Shall I mark you down in 'the Tenth Amendment is superfluous' category, Gabriel?

No. Third Amendment doesn't affect jurisprudence much; that doesn't mean it's superfluous. But the Tenth Amendment doesn't mean other than what it says. The Founders argued about this and rejected doing it your way for reasons they explained at the time.

If you want it to mean "expressly" then get a Constitutional convention together in 38 states.; 9/23/15, 12:58 PM
Titus said...: Mike Huckabee is fat.

tits.; 9/23/15, 1:02 PM
Birkel said...: My way? What the ever loving fuck do you know about my way? Ha!

Why did the citizens of the United States think they needed an 18th Amendment?; 9/23/15, 1:02 PM
Birkel said...: You should read the thread in which Althouse asked what one word should be added to the Constitution. This thread gives little insight into my thoughts, unless you understand the questions I am asking. And your careful avoidance of my questions shows you do know that you don't want to answer them.

So tell me about that 18th Amendment as unnecessary...; 9/23/15, 1:04 PM
Gabriel said...: @Birkel:Why did the citizens of the United States think they needed an 18th Amendment?

Moot. A later amendment overturns an earlier. But one possibility is that they wished to turn an unexpressed power into an expressed power. Or they thought the Federal government didn't have that power and wished to give it to them. But neither possibility invalidates the meaning of the Tenth Amendment as including unexpressed powers delegated to the us government.; 9/23/15, 1:09 PM
Static Ping said...: Air Force? Really? There's nothing explicit in the US Constitution about national defense?

Arguably the space program also falls under national defense, given the obvious applications for war both as weapons and support for the military.; 9/23/15, 1:15 PM
Gabriel said...: @Static Ping:Arguably the space program also falls under national defense, given the obvious applications for war both as weapons and support for the military.

Armies need to eat, so regulating the production of wheat and other foodstuffs obviously falls under national defense.

You can't get to where you want to go this way. The Founders had the same discussion.; 9/23/15, 1:21 PM
AlbertAnonymous said...: "Your defense of him is making me much less sympathetic than I was when I wrote the post."

Professor Please!

When you wrote the post you had NO sympathy for him. You were bashing!

Just admit that you hate the guy. You're not fooling any of us.; 9/23/15, 1:26 PM
Patrick Henry was right! said...: Again, a written document cannot delegate anything other than through what is written in it. By writing what is delegated, it is impossible facto expressed. Any authority, including the right to ignore future amendments, is what you are arguing that the necessary and proper clause provides, in a sort of unexpressed way.

Third Obama term, anyone?; 9/23/15, 1:26 PM
Static Ping said...: Ann: Your defense of him is making me much less sympathetic than I was when I wrote the post.

Impossible. You clearly loathe this man. You loathed this man before. You loathe him now. You will loathe him tomorrow.

The fact that the actions of other people not associated with him are used as justification to loathe him more is irrational.

I seriously doubt you would even have noticed this comment if it was spoken by someone else.

If you hate the man, say so plainly.; 9/23/15, 1:26 PM
Patrick Henry was right! said...: ipso facto.; 9/23/15, 1:26 PM
Alexander said...: Gabriel,

Everything is a weapon in war, yes: from wheat to xerox machines to the news media.

So let us comprimise: when Congress issues a declaration of war, then - and only then can the Federal government restrict the wheat production and trade.

Would be an improvement of the current situation.; 9/23/15, 1:29 PM
Gabriel said...: @Basil:Again, a written document cannot delegate anything other than through what is written in it.

Yes it can, by stating premises which logically entail other things not written in it.

Again, the Founders discussed this issue and then took out "expressly" for this reason. They didn't want to have to list every single possible power in the Constitution and said so.; 9/23/15, 1:35 PM
Hagar said...: Not only do the Supremes read the newspapers; unfortunately, they also watch television.; 9/23/15, 1:40 PM
Static Ping said...: Gabriel: Well, if you go with that logic, then the Constitution provides no limitations to the national government at all. You can justify anything, even things explicitly denied. Clearly this is not the case. (Or maybe it is, which is why we are at this point. There is no system that cannot be corrupted.)

The national government has a clear and obvious duty to the national defense, explicitly stated in the document. Does it have the clear and obvious duty to feed said military? Yes, but only to the extent that meets that requirement. I could see situations where this would justify the federal government taking over the entire agricultural sector if there was no other way to provide for the national defense, but if it cannot provide said military justification it has no power to do so.

I would tend to think that spy satellites and orbital platforms with nuclear weapons would qualify under national defense.; 9/23/15, 1:41 PM
Gabriel said...: @Static Ping:Well, if you go with that logic, then the Constitution provides no limitations to the national government at all.

No, the limits are not explicitly expressed, but that doesn't mean they don't exist.

Again, the Founders considered and rejected and explained their reasons, regarding "expressly". The states ratified. The end. It says what it says, not what you wanted it to say or think it ought to have said. It doesn't matter that I agree with you about what it ought to say. It says what it says.; 9/23/15, 1:50 PM
Gabriel said...: @Static Ping: An analogy: where in the Monopoly rules does it say you can't use loaded dice? Nowhere. Loaded dice must be legal in Monopoly? No.

Where does it say you can't poison your opponent when he charges you rent. Nowhere. Poisoning must be legal in Monopoly? No.; 9/23/15, 1:53 PM
Bob Ellison said...: I've been reading Reading Law by Scalia and Garner. The arguments in it are so concise and learned as to be, well, inarguable. It's also so long and so full of itself (lots of Latin for things that are obvious and don't merit exposition) that I doubt I'll make it through to the end. Now I'm reading it like a PoliSci major, granting each paragraph a second or two.

Still, the book gives a glimpse into a way that legal thinkers approach written text, and that's interesting. The authors do tend to create scaffolding upon tenuous bases, much like modern interpretation of the 10th Amendment (need I point out Roe or the ridiculous interpretation of the 2nd Amendment that held sway until Heller?).

Once one builds that multi-story scaffold, one finds it difficult to wonder whether the first storey or two is strong enough to hold up.; 9/23/15, 2:00 PM
HoodlumDoodlum said...: Gabriel said...The end. It says what it says, not what you wanted it to say or think it ought to have said.

That's a bit naive, isn't it Gabriel? Maybe Static Ping thinks what is says ought to be subject to, I dunno, evolving standards of decency, such that it means what he wants it to mean today and not necessarily what it meant at some prior time.; 9/23/15, 2:21 PM
Birkel said...: The Monopoly analogy necessarily fails when one reasonably accepts there are other, greater sources of rules for Monopoly. No such rules exist for the federal government.

Hence, you have added nothing with the analogy. Logically, this may make you consistent, as you argue the 1pth Amendment adds nothing.

Further, you have proven the point that you would reduce the 1pub Amendment to a tautology. Called it early.; 9/23/15, 2:27 PM
cubanbob said...: Said Mike Huckabee, who seems to be mixing the Constitution up with the Articles of Confederation.

Articles of Confederation, Article II: "Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

Constitution, Amendment 10: "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."

But I'd still let Huckabee vote. "

Lets see the independent sovereign States who joined together to form a union that created the United States that predates the adoption of the Constitution which never expressly repealed the Articles Of Confederation And Perpetual Union which was a reason one Abraham Lincoln prosecuted a war against a rebellion, said article was the legal framework need for the passing of the Northwest Ordinance, the creation of the Army, Navy, post office and other national government instrumentality's of government..... while I'm no fan of the Huckabubba tell me exactly where he is wrong that isn't based on legal conceits. If Huckabubba is an idiot please tell me how he is dumber than the five Supreme Court jurists how determined that the federal government
can't compel you to enter into commerce but tax you for for not doing something you have a right not to do.

He is right about voting. The only people who should be voting are those who are net taxpayers. Those who are the paying party.; 9/23/15, 2:29 PM
Ann Althouse said...: "Now could you point to where in the Constitution these powers were delegated to the federal government?"

1. The commerce clause.

2. The power to raise armies, the spending power...

3. The commerce clause.; 9/23/15, 2:31 PM
Birkel said...: Heller is ridiculous? Which opinion?

Another gladiator enters the arena...; 9/23/15, 2:31 PM
Birkel said...: What work does the 10th Amendment do, Althouse?; 9/23/15, 2:34 PM
walter said...: An expressly weak Alt-parse.; 9/23/15, 2:40 PM
HoodlumDoodlum said...: Ann Althouse said...The commerce clause.

Does that depress anyone else? Absent Lopez is there any Federal regulation that isn't allowed under the commerce clause? And Lopez was 5-4! Beryer's dissent said the Court didn't need to determine whether the regulated activity actually affected interstate commerce, just that the gov had a rational basis for thinking it MIGHT. On top of that he said the question wasn't whether any individual instance of the activity to be regulated affected interstate commerce, but rather whether the cumulative effect of all such activity MIGHT affect interstate commerce. I dare you to try and think of some activity that wouldn't fall under this umbrella--from your choice of toothpaste brand to your taste in dating partners, it's all covered. One wonders why we need much else in the Constitution under such an interpretation. All behaviors and choices (cumulatively) affect interstate commerce. If the Federal Government under the commerce clause has the ability to regulate anything affecting interstate commerce then we don't live under a federal system. Apparently we're 1 Court vote away from that, now. Depressing.; 9/23/15, 2:52 PM
Birkel said...: Althouse is, of course, correct in relating current SCOTUS doctrine.

That does not make the Court's position logical or logically necessary.

So I ask again what purpose the 10th Amendment serves in the document.; 9/23/15, 2:53 PM
Birkel said...: HoodlumDoodlum has scratched a liberal.
And underneath he has found a fascist.; 9/23/15, 2:56 PM
Ignorance is Bliss said...: Ann Althouse said...

1. The commerce clause.

2. The power to raise armies, the spending power...

3. The commerce clause.

1) Fuck no.

2) Yes, the Air Force is part of the army, if not called such, NASA was set up for weapons development.

3) Fuck no.

Glad we cleared that up.; 9/23/15, 2:56 PM
Nonapod said...: So I ask again what purpose the 10th Amendment serves in the document.

To perpetuate the illusion that there are any real limits on Federal power.; 9/23/15, 2:58 PM
HoodlumDoodlum said...: Allowing unmarried couples to cohabitate COULD have adverse economic affects on the nation. Pass a law against it, no problem, commerce clause.

Certain types of sexual behaviors are more dangerous than others, and outlawing those behaviors could have a positive economic affect on the nation (since we're all on the hook for healthcare, don't cha know). Pass those laws--commerce clause.

You have a First Amend. right to expression, but if you're a business and you're putting out a message that COULD harm the economic interests of the nation...hey, let's outlaw whatever I consider Socialist propaganda. Commerce clause, baby.

Now trust me, I understand that not everything that's constitutional is a good idea, and that "moral" and "constitutional" aren't synonyms. I wonder, though, if others really understand what it means if we allow the commerce clause to permit any federal regulation that can be dreamt up.; 9/23/15, 3:03 PM
Gabriel said...: @Birkel:Further, you have proven the point that you would reduce the 1pub Amendment to a tautology. Called it early.

The fact that it doesn't say what you want does not make it a tautology.

It says "all powers delegated". It doesn't say "all powers expressly delegated". "All" necessarily includes un-expressly and expressly delegated powers.

It does not say that the government gets all possible powers--it just does not give an exhaustive list of what the powers are. Not my fault, I didn't write it.

This isn't hard. I'm sorry the Founders did it wrong. Convene a convention and make it right. Or hold your elected officials accountable for using powers they shouldn't have. But you can't blame the text for not saying what you want it to say, or me for pointing out what it says.; 9/23/15, 3:11 PM
cubanbob said...: Ann Althouse said...

"Now could you point to where in the Constitution these powers were delegated to the federal government?"

1. The commerce clause."

The clause that was put in to regulate existing commerce between the states?; 9/23/15, 3:19 PM
Birkel said...: Nonapod strikes at the answer.
Gabriel cannot admit that he has accepted the reduction of one of the Constitutional Amendments to a tautology.

And this reduction happened in short order. We know it had not occurred before the passage of the 18th Amendment. And we know it had occurred before WWII.

And here we are.; 9/23/15, 3:24 PM
Birkel said...: Gabriel,
After you have fully unleashed levitation from any constraints, I wish you well. Because you are succumbed...; 9/23/15, 3:27 PM
Gabriel said...: @Birkel:After you have fully unleashed levitation from any constraints...

The constraints are not spelled out in the Tenth Amendment. I know you think they should be. That does not make it true.

We know it had not occurred before the passage of the 18th Amendment.

Nonsense. The 18th Amendment gave the government a new power it didn't have before. The 10th Amendment acknowledges that the government does not have every power. It does not give an exhaustive list of all the powers it does and does not have. No one has ever written out that list.; 9/23/15, 3:35 PM
cubanbob said...: Birkel said...

Nonapod strikes at the answer.
Gabriel cannot admit that he has accepted the reduction of one of the Constitutional Amendments to a tautology.

And this reduction happened in short order. We know it had not occurred before the passage of the 18th Amendment. And we know it had occurred before WWII.

And here we are.
9/23/15, 3:24 PM "

You're losing me here; in the rhetorical sense or the philosophical sense? Or is Gabriel simply having an Inigo Montoya moment in your opinion?; 9/23/15, 3:39 PM
Birkel said...: Further, Gabriel, as I know there have been different interpretations that the one you submit as the only one, and you cannot do the same, I will note you are ill-informed or dishonest.

Also, as I have learned the lesson well that changes to Constitutional interpretation require only five votes, I cannot understand why you insist on a constitutional convention to win an argument. I submit that a bare majority of nine is all that is necessary. So quit pretending that one side is forced to respect the document that the other side openly derides. No thank you.; 9/23/15, 3:42 PM
Gabriel said...: @Birkel:Here's James Madison, argue with him:

"..it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia."

If the Tenth is a tautology, he and his generation intended it to be. But it's not a tautology. There are powers delegated and powers reserved. The Tenth simply does not enumerate all powers which could be so classified. I know you think it should. It doesn't. By design.; 9/23/15, 3:46 PM
Gabriel said...: @Birkel:as I have learned the lesson well that changes to Constitutional interpretation require only five votes,

Not true. It requires the passive acquiescence of the rest of society plus 5 judges.

You agitate enough people to get the convention to pass the amendment, you won't need the amendment, and you won't need five judges either.; 9/23/15, 3:48 PM
Birkel said...: cubanbob,
The reading Gabriel gives the 10th is to render it a nullity, offering no constraint on the federal government whatever.

Tautology: true by virtue of its form alone; 9/23/15, 3:51 PM
Birkel said...: Since you alone have access to Madison... Oh, wait. I have read him too.

No other section of the Constitution is a nullify. And you would argue this one is. As I said above, this violates the normal rules of construction. Carry on.; 9/23/15, 3:55 PM
Gabriel said...: @Birkel:The reading James Madison and the rest of Congress gave the 10th when they wrote it and the states ratified it is to render it a nullity, offering no constraint on the federal government whatever.

FIFY. It does not, as written, enumerate constraints that it explicitly acknowledges the existence of. It was intentionally written not to spell that out, and they said why at the time.

So, take it up with them, or get an amendment. You can't blame me, or Ann, or any one else.

Oh, wait. I have read him too.

Good, you produce a quote from Madison that says something different about the Tenth Amendment. I'll wait.

No other section of the Constitution is a nullify.

It's not a nullity. You are calling it one because it doesn't say what you want it to say.; 9/23/15, 3:58 PM
Birkel said...: What power does it have? If you find none, it is a nullity.; 9/23/15, 4:00 PM
Birkel said...: Also, I would be careful to say the states passed the Bill of Rights because of what Madison wrote. Are you sure? Have you read the speeches offered in the various state houses to that effect?

I venture a guess that you are full of shit on that.; 9/23/15, 4:03 PM
Gabriel said...: @Birkel:If you find none, it is a nullity.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

What power does that have? Is it a nullity?; 9/23/15, 4:05 PM
Gabriel said...: @Birkel:Have you read the speeches offered in the various state houses to that effect?

Have you? You post the links we'll read them together.; 9/23/15, 4:05 PM
Birkel said...: You made the assertion about state adoption. The onus is on you to offer proof. You can of course withdraw your bull shit claim and offer the narrower claim.

It would be a good start for you.

As for reciting the preamble, that did not answer my query. Your posturing is weak. Answer the question as to what force the 10th has. If none, do not play coy. Admit you would read it differently than the other 26.; 9/23/15, 4:10 PM
Achilles said...: I think if the founders saw what has happened in the last 20 years, they would have put the word "expressly" in. They obviously had an idea of what they wanted to achieve. The government at the time consumed about 3% of GDP. Now it is hanging out in the mid 20s"% and stacked up with state and local governments approaches 50%.

They would have been fighting by now.; 9/23/15, 4:10 PM
Gabriel said...: @Birkel:What power does it have? If you find none, it is a nullity.

New York v United States, Printz v United States. The Federal Government may not compel the States to enact or administer a federal regulatory program.; 9/23/15, 4:10 PM
Birkel said...: Why not repeal the 10th?
Be honest about what you support.; 9/23/15, 4:13 PM
Gabriel said...: @Achilles:They would have been fighting by now.

I'm sure you're right. And "fighting" is literally what they'd be doing, not trying to reinterpret clauses in Magna Charta.; 9/23/15, 4:14 PM
Gabriel said...: @Birkel: The Tenth delineates the levels of sovereignty. The government does not have every possible power and there are no powers that fall between the cracks. I have no desire to repeal the Tenth even though it doesn't come up that often. I don't want to repeal the Third either.; 9/23/15, 4:16 PM
Birkel said...: Anti-commandeering is the one.
But what if commandeered is necessary and proper?
And what if two votes have switched since 1992?
Then what?

And Printz, five years later, was 5-4 and offered a second basis for striking the law.
The clearer method of defending the Second by applying strict scrutiny must not have been an option on that Court.

Wager on the 10th having power a generation from now?; 9/23/15, 4:20 PM
Achilles said...: Gabriel said...
@Achilles:They would have been fighting by now.

"I'm sure you're right. And "fighting" is literally what they'd be doing, not trying to reinterpret clauses in Magna Charta."

If we get a Biden or a Hillary or a Bush or a Rubio or a Christy in the WH it starts. If things don't change soon one way it will change another.; 9/23/15, 4:25 PM
Gabriel said...: @Birkel: You keep moving the goalposts and changing the rules. I met all your demands, and you just keep making more. Now I have to personally guarantee that people will continue to respect the 10th? Piss off. You lost.; 9/23/15, 4:27 PM
Birkel said...: Achilles,
I am afraid you are right. Bad luck has been happening more frequently and I worry Leviathan is unrestrained.; 9/23/15, 4:28 PM
HoodlumDoodlum said...: Gabriel said...
New York v United States, Printz v United States. The Federal Government may not compel the States to enact or administer a federal regulatory program.

Printz was 5-4 and the dissent was that the commerce clause was sufficient. If you had to guess do you think a majority of current judges & justices across the nation take an expansive or a restrictive view of the commerce clause? How about current law students?; 9/23/15, 4:30 PM
Birkel said...: 80 years again amendment was required.
20 years ago Congress and the President asserted power that the Supreme Court pushed back weakly.
The constraints are fewer today.

The interpretation needed to protect federalism and the rule of law has been rejected. Levitation is unleashed.; 9/23/15, 4:34 PM
Birkel said...: Unrelated:
I wonder how much power the federal government will assert once states declare themselves bankrupt, btw.; 9/23/15, 4:36 PM
Birkel said...: So, after all the above, the only thing the 10th Amendment does is prevent the federal government from commandeering state and local officials from enforcing federal law.

I stand by my earlier point that the Tenth Amendment is currently rendered moot and the way it is described is tautological.; 9/23/15, 6:21 PM
Static Ping said...: Gabriel: Where does it say you can't poison your opponent when he charges you rent. Nowhere. Poisoning must be legal in Monopoly? No.

Actually, yes. You must have never heard the term "rules lawyer." You have no idea what people try get away with (and succeed!) and what specific rules have to be added to avoid such situations. I would think the history of people being gunned down at gambling tables would make that clear, but apparently not. I assure you there is no rule against murdering your poker opponent, at least not as far as the poker rule book goes. It is a very effective way of winning, assuming your aim is good.

What I find amusing is I remember an old bad movie, may have been Reefer Madness, where one of the characters is dismayed that the federal government is helpless to stop drug distribution because the drug was being grown and consumed in the same state and therefore not interstate commerce. Apparently, this was obvious at the time.

You may be correct in your analysis of the Tenth Amendment. If you are, it makes it very clear that the document is useless and we only got this far because the citizenry pretended it did something. "Our Constitution was made only for a moral and religious people," indeed.; 9/23/15, 6:53 PM
Patrick Henry was right! said...: The 10th Amendment, being passed after the commerce clause, supersedes the commerce clause. The word expressly is not in their because something in a written document cannot be delegated by the written document through anything other than a writing.

I would ask Gabriel, what power is reserved to the states and the people by the 10th amendment? Under your theory, state common law is invalid because that authority is given to the federal government by the necessary and proper clause and the commerce clause. Where is the common law in the Constitution anyway?

Oh, well, got to go get ready for work to pay my tax for not having health insurance.; 9/23/15, 9:07 PM
Achilles said...: Basil said...

"Oh, well, got to go get ready for work to pay my tax for not having health insurance."

This is one of the best overreaches. It will become standard practice to ignore this "tax." Find 12 people in any state that will put another citizen in jail for not paying this "tax." Obama in his lawlessness is fundamentally changing the US into Greece.

As it is now the only people evading taxes in this country are the Buffet's, General Electric's, and various other grifters. GM got a 15 billion dollar tax break specifically carved out for them by being allowed to carry losses forward indefinitely. Why can't I get 100 billion dollar 0% interest loans like the banks did in 2008? Because I didn't donate enough money in DC. These lawless activities are bought and paid for and the people are waking up. Why should I pay taxes if Obama is just going to give my money to JP Morgan Chase and Goldman Sachs?

This is why Jeb will never make it to double digits this primary. This is why we know Rubio is a betrayer. We know they will play ball and screw us because they already have. This election is going to confound a lot more pundits before it is over. They are pushing Rubio now. But if he wins the republicans are done as a party.; 9/23/15, 10:45 PM