Tuesday, February 12, 2013

"Expressly" delegated powers

After writing about constitutional violations by the LAPD last night, I was telling myself that in the morning I need to dig up an excellent post by Gene on Madison and the use of the word "expressly" in the tenth amendment. Serendipitously, he just reposted one along the same lines, so I don't have to go digging. Here it is in its entirety:
"The tenth amendment to the United States Constitution reads:

"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."

When this amendment was being drafted, the "states' rights" advocates kept putting the word "expressly" in before delegated. Madison kept taking it out. The reason he did so is that he thought the federal government should have the power to do what was not expressly delegated to it, but which was only implied in its expressly delegated powers.

As a result, what passed was an ambiguous compromise: the states' rights people could say the amendment meant what they thought it should, and that "expressly" was implied. The "consolidationists" could interpret it their way, in which it meant the federal government could do anything that aided it in achieving the ends the Constitution explicitly set for it.

Successive Supreme Courts took one view after the other: the Marshall court adopted the Madisonian view, while Taney's court adhered to the states' rights view.

There was no single, original interpretation that we can fall back on today: this document was an ambiguous compromise designed to appease different visions of what the country should become."
The Constitution is a fundamentally contested and contestable document. Some people act like the fact that it is contestable means that it is not a limit on the state. I contest that view.

1 comment:

  1. Not to worry Dan

    Due to Yahoos like those in Virginia (Charlottesville), states and cities are going to pass laws this year outlawing drones, even though the airspace is Federal.

    The United States is now mostly populated by know-nothing Luddites wearing tin foil hats.

    This country was built on see the potential in mastering and harnessing very emergent technology but we are going to ban drones.

    New low for low information.


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