I learned something interesting about the "State's rights" arguments the Right loves.

[white_wolf]

In one of my classes we were discussing a Supreme Court case U.S. Term Limits V. Thorton. During the discussion my professor mentioned that in his decision Justice Stevens mentioned Justice Story's commentary on the 10th Amendment in which he argued that the 10th amendment "reserves" powers to the States that they held before the Constitution, but didn't refer to powers that arose after the Constitution was ratified. Powers that did not exist before the Constitution was ratified could not be reserved since they didn't exist.

He also mentioned that this is why Romney's line about the regulation of healthcare being something that should be left up to the State's is quote "hogwash."

Anyway, I just thought it was an interesting discussion considering the Right's obsession with State's Rights.

[avebury]

1. Interesting. That would also mean that state could not pass

laws banning gay marriage since the concept of gay marriage didn't exist back then. The same would also apply for laws to restrict birth control and access to abortion. It kind of makes you want to go back and look at a whole host of laws that states have passed.

[white_wolf]

2. I actually wondered about gay marriage myself. I'm not sure about it...

simply because laws regulating marriage have existed since before the Constitution so they might be able to get around it. I'm not sure, though. I wouldn't want to test it right now, though. Not with the current Court.

[avebury]

3. I am not sure that they actually had any laws that defined

marriage as between one man and one woman back then because it probably didn't occur to them that there would ever be any other type of marriage. Later on there were laws regarding mixed race marriages.

[alc]

4. there are many interpretations

Even in the 1790s. Hamilton's interpretation was that the general welfare clause gave the federal government the right to do anything as long as they could justify it. Enumerated powers and 10th amendment were irrelevant since the general welfare clause took precedence. His private journal at the time they wrote the federalist papers disagreed with what Madison wrote about limits of federal government. Hamilton avoided writing about limits to federal government himself but knew it was needed to get the votes so was happy to have Madison do it.

Madison felt that the enumerated powers were the limit of federal government. The states got ALL other powers, even ones not yet conceived. An amendment would be needed if the federal government was to get a new power enumerated.

Hamilton and Madison both had supporters. And just about everyone's attitude changed according to specific issues (they'd gladly use the interpretation that supported their side just like today)

We're still having the same arguments, with someone's "hogwash" being someone else's "abuse of power". I think that's a good thing. We need to be able to move forward without an amendment for every new power. But we need lots of debate any time the government is given more power.

[white_wolf]

6. Yes, but the interpretation I mentioned has been used to support Supreme Court precident...

so that should give it more weight than the average person's opinion, though there may very well be conflicting precedent.

[philly_bob]

5. Discussion is over my head -- but very interesting. Go on.... n/t