Politico: Gov. Tim Pawlenty joins the Confederacy

Rightardia comment: This is more GOP wing nut stuff.  The 10th Amendment states, "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." 


In United States v. Sprague (1931) the Supreme Court noted that the 10th amendment "added nothing to the [Constitution] as originally ratified." The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment according to Wikipedia. 

The Supremacy Clause is a clause in the United States Constitution, article VI, paragraph 2. It states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." 


The 14th Amendment also states, " "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Of interest the Constitution of the Confederate States of America also had a supremacy clause which was identical to the supremacy clause in the US Constitution. This fact contradicts the state rights revisionist argument of some Civil War historians.


The Civil War settled once and for all that the federal government provides the supreme laws of the land. The GOP needs to stop kidding itself about states' rights. The only time they talk about it is when they lose elections.

 

Minnesota Republican Tim Pawlenty urged fellow governors on Thursday to more frequently assert state sovereignty over the federal government and suggested that the country may increasingly see states suing the federal government.

Asked by a caller about the option of asserting the Tenth Amendment as a tactic to reject a successful health care overhaul by President Barack Obama during a tele-town hall organized by the Republican Governors Association, Pawlenty said, “that’s a possibility.”

Speaking generally about the tenth amendment, Pawlenty said the country has not had “a proper federalism debate since Ronald Reagan raised the issue in the 1980s.”

“You’re starting to see more governors, me and governor [Rick] Perry from Texas, speaking out on this and asserting our tenth amendment rights,” Pawlenty said on a call listened to by more than 12,000 people.

“Asserting the tenth amendment may be a viable option,” Pawlenty said, adding that there may be “more of those claims and maybe even lawsuits if need be.”

Read more: http://www.politico.com/news/stories/0909/27023.html#ixzz0Qnu2cBZP


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Steve Kangas FAQ on liberalism: The States' Rights Myth

Editor's Note: This is one of the Steve Kangas' weaker essays because it doesn't mention the the Supremacy Clause in the Constitution or the Civil War which really settled the limitations of states' rights. The Supremacy Clause states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

The Supremacy clause is also strikingly similar to the 14th Amendment:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

In Edgar v. Mite Corporation, 457 U.S. 624 (1982), the Supreme Court ruled

A state statute is void to the extent that it actually conflicts with a valid federal statute.

Myth: Current federal powers violate the 10th amendment.

Fact: The 10th amendment is a moot curiosity.



Summary

The 10th amendment says that the federal government may not assume powers not permitted to it by the Constitution. Conservatives argue that much of today's federal government exceeds its constitutional mandate, and is therefore unconstitutional. However, most expansions of federal government have been contested in the Supreme Court for their constitutionality. The court has overturned some of these expansions, and upheld others. Therefore, the state of today's federal government has passed constitutional muster.



Argument

The 10th amendment states:

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.

Conservatives view this amendment as a life-saver. It says that the federal government cannot assume any powers not specified by the Constitution. Expansions of federal power beyond the Constitution, then, are unconstitutional. Conservatives go on to argue that the massive expansion of the government that followed the New Deal in 1933 are a violation of the 10th amendment.

The problem with this argument is that it is trivially true, in the way that all things besides oranges are non-oranges. The constitution grants the federal government enormous powers, a fact which is not harmed by the observation that extra-constitutional powers are not constitutional. As the Supreme Court has ruled: ''The amendment states but a truism that all is retained which has not been surrendered." (1)

So the conservative appeal to the 10th amendment only begs the question: what powers does the Constitution grant the federal government?

The vast majority of expansions of federal government have been contested before the Supreme Court as unconstitutional. Sometimes the Supreme Court has struck down these expansions as unconstitutional; sometimes it has upheld them as constitutional. What we have today, then, is a federal government that has passed constitutional muster. Conservatives may disagree with the rulings, but then they must explain what kind of system they would like that would produce the kind of rulings they desire. A Congress that passes laws without that troublesome, irritating Supreme Court? A Supreme Court that seats only conservative judges? (Denying representation to half of America, of course...) Any changes would surely be disimprovements.

A look at the history of this amendment also reveals that the Founding Fathers did not intend it to be a severe brake on federal powers. This is proven by the refusal of both Houses of Congress to insert the word ''expressly'' before the word ''delegated.'' (2) It turns out that the 10th amendment is a historical curiosity, stripped of its teeth by the politics of the time. When the anti-federalists proposed the amendment, they intended it to be a strong limitation to federal powers. But they failed; the federalists managed to pass a wording that left implied federal powers intact, as well as undefined powers "to the people." Most historians, constitutional scholars and Supreme Court rulings have regarded the 10th amendment as the unsuccessful attempt that it was.

A closer look at the history of the 10th amendment can be found at The Tenth Amendment: Reserved Powers and Scope.

http://en.wikipedia.org/wiki/Supremacy_Clause

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