Examination of the Bill of Rights: The Tenth Amendment

ownbestenemy
reply to post by beezzer

 

I do not deny that activism has invaded the court, but at the same time, that activism must have some legal backing or precedent. They cannot rely upon the Legislature's enjoyment of a fickle people or the Executive's command of the bully pulpit in their decisions. Otherwise they would be eaten alive in my estimation.

Even if we look at "controversial" rulings such as Citizen United or Kelo v. New London; the rulings might have satisfied a certain political leaning; but they were in no way activist. Even looking at the most recent "controversial" ruling of the Patient Protection and Affordability Care Act (aka "Obamacare"); the decision was sound. We may not have liked it, but find me how it was "activist"; even in the lauded Citizen United or Kelo cases...

You don't think Justice Robert's interpretation of Obamacare as a tax was activism?

In a broader scope, I feel that 10th Amendment will be/has been infected with the same type of interpretation that has infected the courts towards a certain political ideology.

beezzer
You don't think Justice Kennedy's interpretation of Obamacare as a tax was activism?

It was Roberts, and it was an argument by the Government; they premised it on two fronts in that regard. On the regulatory aspect, they relied upon the Commerce Clause and Chief Justice Roberts decimated it and even set back a century of judicial precedents regarding that clause.

On the tax argument, the Government held they had the plenary power to tax; which they do, via Article I, Section 8, Clause 1:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

While it was specious at best, the argument is not unfounded. It doesn't mean I like it or that I believe the Government played a shell game though.

In a broader scope, I feel that 10th Amendment will be/has been infected with the same type of interpretation that has infected the courts towards a certain political ideology.

That is why the Government scored on the Tax avenue; if they went with the regulatory route, the Tenth Amendment would apply in my estimation.

I think a conversation on the 10th amendment goes hand in hand with the commerce clause.

In congressional bills most have "enabling language" that spells out congresses belief it has the Constitutional authority to make law or regulate whatever is in the bill. The commerce clause is usually cited which conveniently bypasses 10th amendment concerns.

Basically the Commerce Clause is used to nullify 10th amendment to the Constitution, by making as much as possible a matter of commerce rather than a right of the people or state as spelled out in the 10th.


Wikipedia

During the post-1937 era, the use of the Commerce Clause by Congress to authorize federal control of economic matters became effectively unlimited. Since the latter half of the Rehnquist Court era, Congressional use of the Commerce Clause has become slightly restricted again, being limited only to matters of trade (whether interstate or not) and production (whether commercial or not).

But one's interpretation of what constitutes trade is wide open.

Montana I believe is mounting a challenge on this abuse with in state and sale of weapons manufactured within its borders exclusively.

At this point I am not 100% sure but believe no federal charges have been made which would generate a court challenge - gee I think that is something the feds want to avoid at all costs if they can due its potential ramifications to most current federal law.

A court case and a win would neuter commerce clause nullification of 10th amendment and open to challenge most federal laws that exist today - chaos could ensue.

reply to post by Phoenix


Very astute observation Phoenix. This is why the most recent ruling by Chief Justice Roberts is crucial as he has basically rolled back a century of judicial interpretation of the "Commerce Clause" to a pre-New Deal era understanding.

First, in his opinion, Chief Justice Roberts recognizes the Tenth Amendment when he states that "n our federal system, the National Government possesses only limited powers; the States and the people retain the remainder." He continues on to explain regarding the case, as to the two powers in which the Government laid claim to:

The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” ... [and] Congress may also “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

To the first, he set a more "originalist" perspective on the Commerce Clause and to the later, he upheld the plenary power of Congress to tax.