[cabaalis]

I can't for the life of me understand why the 10th amendment does not have a more prominent place in the American political system than it does. It is because government would be hamstrung if they respected it? It would seem to the layman that is the entire reason it exists!

[CobrastanJorji]

Technically you're right. The 10th amendment has been largely neutered by selective incorporation, a very broad reading of the commerce clause, and other decisions.

That said, the world in which the 10th amendment is very strong and the fourteenth is weak is much worse for civil rights. Suddenly the states can declare official support for Christianity, ban dissenting speech, shut down newspapers they dislike, search you or even imprison you without a warrant, or quarter troops in your house.

[coldseattle]

"Quartering Troops" sounds archaic, but every now and then lawmakers propose it, like forcing private airlines to provide discounted or free arrangements for servicemen traveling. (As opposed to negotiating rates with them, or soliciting competitive bids). These proposals usually don't get very far, but it shows you that the Government still thinks it's OK to _force_ a citizen or private business to give free services or accommodations to soldiers.

(For example, see https://www.huffingtonpost.com/2011/06/08/congressman-bruce-... and https://www.huffingtonpost.com/2011/06/08/delta-troops-afgha... The Government should reimburse him, and try to negotiate the best rates from the Airlines. I'd be all for the Airlines offering a discount, but they shouldn't be forced to.)

[noobermin]

Disregarding what the law says, the material reality is that American society today largely respects and thinks highly of the US military, and is not as skeptical of federal government's standing armies.

[int_19h]

This, by the way, tells you a great deal about how far away the modern American society is from its own founding principles - and especially so among the people who otherwise profess their infatuation with them (and who tend to be more pro-military and pro-police).

[itronitron]

aren't we already quartering troops with the proportion of taxes that support the DoD?

[jessaustin]

I think the idea is that directly quartering troops is certain to be much more capricious and unequal than paying taxes. Everyone (with some narrow exceptions) is supposed to pay taxes, while only those families who have nice houses in convenient locations (and beautiful teenage daughters!) will have to quarter troops directly.

[coldseattle]

No. They aren't forcing a particular private party to provide personal accommodations to an individual soldier.

[maehwasu]

At the margin, people would begin moving to different states.

The current system has some pros (which you enumerate), but also some massive cons in the form of high exit costs, since you're exiting the entire federal apparatus rather than the government of a single state.

[r00fus]

> At the margin, people would begin moving to different states.

"They can simply move away" is a fantasy solution. 99% people would/could not move until/unless it became a crisis situation.

Sure, you could move, but what about your infirm parents? The costs are already high for between-states moves.

[techsupporter]

Completely agreed. The argument I heard made before is "if people can just move, why do gay people live in [state with no civil protections for gay rights]?" It's an easy one to answer. Family, job, social connections, money; those are just a few. Then comes the question of how free should each state be or not be? What if you are born, for example, both gay and a native Texan[0]? Should Texas have the right to "force" you out of where you were born and bred simply because a majority of its legislature detests gay people?

0 - The choice of Texas was deliberate because I am a native Texan so I'm not "picking on" any state other than "my own."

[18pfsmt]

I grew up moving as my father changed jobs, and I continued the practice on my own when I turned 18. I'm at least 1k miles from any family, and I've had to make new friends many times. It's really not that big of a deal for many people. I think most people I know in Colorado were not born here.

[techsupporter]

I don't disagree. I, also, don't live where I was born or grew up, though it took a few decades of my existing on this planet before I was ready to move more than one county away from where I was born. But, like others point out, we are decidedly in the minority.

My anecdote is to point to the rest of my parents' children along with my parents' siblings and their children. All told, you wind up with about a hundred people (big families, lots of cousins). Out of all of them, I am the only one who does not live in Texas. And, out of all of them, I am one of only five who do not live in the 30-county area known as "Northeast Texas."

It's not like my extended family members are destitute or have some external tie to where they all live (e.g. they're not all "Texas Bluebonnet Genetic Researchers" or something like that). Yet none of them could fathom living anywhere else and every year at the big family reunion, I am still (quite a few years later) peppered with earnest, wide-eyed questions about how it is to live so far from "home."

As for your experience in Colorado, my experience and that of those who I know is that it "non-natives" tend to make friends with other non-natives than with native-born people. Why? The native-born people who live where they were raised still have those social and familial connections that were made over many years. Combine that with the trend of people seeking and making fewer friend connections as they grow older and the odds grow more slim.

[sitharus]

It's not a big deal for most affluent well educated people (I live 18,456km from my birthplace and most of my family), but according to a 2015 study only 20% of Americans live more than a few hours drive from their parents and most live within 18 miles (https://www.nytimes.com/interactive/2015/12/24/upshot/24up-f...)

[r00fus]

Me too, but I'm pretty sure we're in the minority. Most people I've talked to my entire lives did not move nearly as much as I did (I went to a different school for each grade from 3-9).

[firic]

There is a reason communist countries had to close their boarder. Because if they didn't, too many of the good people would leave andv that would hurt the country to much. If enough people could leave a communist country to cause them to worry, then surly moving from oppressive states should be common

[bnolsen]

It cuts both ways. One central government squishing civil rights or 50 states each having to squish civil rights? I do tend to agree to the supremacy of the bill of rights which is supposed to be just a restatement of natural rights and is a hands off to government in general.

[ricree]

Because the 10th provides little that is particularly concrete, and because the prevailing interpretation of other clauses has been fairly broad. That is to say, by and large the federal government has been acting withing the powers granted by the constitution, but at the moment those powers are held to be quite broad. Interstate commerce clause, in particular, means that the government can do quite a bit to regulate, so long as it is in some manner related to interstate trade. I don't personally agree with these interpretations, but they are the prevailing ones.

Likewise, incorporation doctrine is derived from the constitution. So anything that is considered barred by incorporation is therefore "prohibited by it[the constitution] to the States".

It has, in the past, been called "a truism" by the courts, and that's not a totally unreasonable read. Still, there issue has come up in court from time to time, and the wikipedia page ( https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... ) lists some examples.

[jdmichal]

Interstate commerce has been interpreted very broadly... So broadly that consuming things you grew yourself is under subject of interstate commerce.

https://en.wikipedia.org/wiki/Gonzales_v._Raich

[ricree]

Even before that, there was a case where the federal government had limited the amount of wheat a farm could grow (to control prices), and came after a farmer who exceeded those limits for the sake of feeding his own livestock. This is, to the best of my knowledge, the earliest supreme court case where purely personal use counted as "interstate commerce".

https://en.wikipedia.org/wiki/Wickard_v._Filburn

[gamblor956]

Wickard's use was not purely personal. He grew more wheat than he used, and he sold that excess on the interstate market (or, from a different viewpoint: he sold wheat up to the allowable limit and gave the rest to his livestock). This directly impacted the interstate commerce of wheat, because growing his own wheat meant there was less demand for wheat from other farmers. Scaled up to an entire nation, this would have rendered the wheat control law toothless. Generally, this law has been upheld consistently in this context, though SCOTUS has struck down cases where a good was tangentially related to Congress but the targeted act/good was not actually a commercial transaction (or the avoidance of a commercial transaction, as in Wickard).

[int_19h]

As I recall, the argument in the decision, however, was specifically that self-production for personal consumption affects the market (because you're not buying the product that you're producing).

Following that logic, Congress can regulate breathing, so long as there's a market for air.

[gamblor956]

That would be an incorrect understanding of the ruling and a misapplication of legal logic.

Wickard is limited to cases where there is a tangible good, produced and sold as part of an interstate market. Subsequent cases have limited the scope of Wickard further than that--Lopez held that the transaction or good regulated must actually be a part of an interstate market or would have a direct and discernable impact on the interstate market for the regulated good or transaction.

In the case of air--there are already markets for air in the context of medical treatment and transportation (i.e., airplanes). But breathing is not a transaction since there is no economic exchange nor is it even a voluntary act. Even if breathing could be treated as a transaction, the breathing of uncontained air is one of the few goods that can be classified as purely local (the only other physical goods I can think of that are purely local are real estate and improvements to real estate because they are immovable). Moreover--as breathing is currently free--Congress would have to establish that a market for breathable uncontained air could exist in a meaningful sense.

However, the ICC has been used to regulate water...Theoretically it could even be extended to regulating the act of drinking water that has or would flow through multiple states, but any such attempt would likely not receive sufficient support in Congress to become law, and any court ruling on this point would likely result in a law overruling the decision.

[gamblor956]

"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."

Generally, after ratification the 10th Amendment was treated as a truism: essentially a useless amendment that simply confirmed the federal system of government. The words of the man who drafted the amendment, and who opposed it's inclusion:

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.

For much of the 20th Century, the justification for most federal laws infringing on state activity has been the Commerce Clause, which was extremely broadly written.

Most recently, the 10th Amendment has been interpreted to mean the federal government cannot force the states to enforce federal laws (see, e.g., Printz and the recently decided Murphy).

[syshum]

>the Commerce Clause, which was extremely broadly written.

Not really, however in Wickard the Supreme Court simply ignored the entire words written, any context, and any rational thought processes around the words written to come up with a massive expansion of federal power that basic renders the enumeration clause pointless, and granting the federal government almost unlimited authority over everything

>>>>[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Seems narrow and precise to me, how 9 supposedly intelligent people came away reading in to the passage "Yes Congress can regulate how much wheat a man grows on his own farm for his own consumption" defy's all logic and reason

[AnimalMuppet]

Because they didn't decide based on the Constitution, or on the facts of the case. They decided based on what would be convenient for the war effort in World War II.

As Francis Schaeffer said, "If there are no absolutes by which to judge society, then society is absolute." If your ultimate value is "whatever is good for society" or "the nation", there is nothing you cannot trample on in support of that value - even the Constitution.

[syshum]

Which highlights the problem as the Supreme Court should not factor what is "good for society" nor what is "good for the nation" neither of which has any relevance to what is constitutional or not.

[mijoharas]

Sorry, could you explain what the 10th amendment is? (The Wikipedia page has some assumed knowledge that I do not have as I'm not American.)

[jdmichal]

The basic reading would be, that unless the Constitution defines a power of the federal government, that power resides with the states and citizens. As mentioned in the Wikipedia article, its addition was basically CYA, as it was and is true regardless of its enshrining within the Constitution. As such, its existence does not really mean anything beyond what the Constitution already meant. It just provides a handy shortcut to say, "the federal government should not have had the power to enforce this on the states."

This is actually a rather important principle, and most people don't realize how many federal laws that work at the state level use funding carrots rather than criminal-punishment sticks for enforcement. For instance, the penalty for not following the unpopular and eventually dismantled "No Child Left Behind Act" was that your state would not receive federal education funding.

> The Act required states to develop assessments in basic skills. To receive federal school funding, states had to give these assessments to all students at select grade levels.

https://en.wikipedia.org/wiki/No_Child_Left_Behind_Act

[rocqua]

> federal laws ... use funding carrots rather than criminal-punishment sticks

There are limits to this, some of which are set out in South Dakota v. Dole, 483 U.S. 203 (1987). These limits (quoting wikipedia) are:

* The spending must promote "the general welfare."

* The condition must be unambiguous.

* The condition should relate "to the federal interest in particular national projects or programs."

* The condition imposed on the states must not, in itself, be unconstitutional.

* The condition must not be coercive.

Especially the last condition is relevant. It means the withdrawal of funding cannot be so harsh as to be clearly funding. I believe the actual wording used is that the threat of withdrawal cannot be a 'gun to the head' of the states.

[arwineap]

Do you have a background in law?

Reading through this comment thread is very interesting, I just can't help but try to understand how so many geeks are so well versed in case law :)

[rocqua]

Not in the slightest, I recall hearing about this on the "What can trump teach us about con-law" (constitutional law).

I don't even live in america, but the system is interesting and rather well represented in the media. Few countries are as attached to their constitution as the US.

[chasontherobot]

The law is just a programming language for government, thus a lot of programmers are attracted to it.

[AnimalMuppet]

Especially since we see the government in need of debugging, but we don't see the cause of the bugs in the source code...

[SlowRobotAhead]

It means that anything not expressly prohibited in the constitution is up to the states to decide.

What most people don't get (even in the USA) is that the constitution doesn't grant powers to people. It only restricts the government from acting on the people. People were born with the right to speak freely and defend themselves as they see fit - the government can't change that for example.

So the 10th says if it isn't mentioned it is a power that belongs to the people or the states. For example, weed isn't mentioned in the constitution so technically it's a 10th issue for states to decide - HOWEVER - this is thing called the commerce clause...

Commerce clause means that if something moves from state to state, that sure does seem like a Federal matter. So it gets complicated. But... In the end, some states have legalized in the state in part referring to 10A, it's their right to do - but if you are in a "weed state" and light up at a DEA office - expect to be arrested and charged with a federal crime.

* The thing about commerce clause is that almost everything can move from state to state. So that's a little bit of an annoying topic depending on the issue and which side you're on. For example, I can manufacture a gun in my state that isn't legal in another state, commerce clause has been tried to limit 2A.

[ricree]

>Commerce clause means that if something moves from state to state, that sure does seem like a Federal matter

To clarify (as you no doubt know, but other readers might not), this has been taken by courts to mean that any type of good that is traded between states is fair game for federal involvement, even if the actual product in question never has and never will travel outside of the state, or be bought or sold whatsoever.

[gamblor956]

This isn't true...the interstate commerce clause may only regulate wholly intrastate commerce if the law regulates interstate commerce and the targeted intrastate transactions would affect the interstate commerce subject to regulation. See Gonzalez v. Raich (permitting the criminalization of marijuana farming of marijuana that could only legally be sold in-state because marijuana as a good could be sold across state borders).

There aren't any cases governing wholly-intrastate physical goods no such goods exist, and generally when attempting to regulate otherwise purely local commerce (i.e., restaurants and civil rights), it is generally not a case of federal powers but rather of civil rights.

[SlowRobotAhead]

>if the law regulates interstate commerce and the targeted intrastate transactions would affect the interstate commerce subject to regulation

Right, but the issue is that's so laughably wide that it's meaningless. Esp as the internet has made things easier, you can be certain it's legally arguable to "prove" that even a small time seller of some good is measurably impacting big company X.

[gamblor956]

No, it's not so laughably wise as to be meaningless. For example, the interstate commerce clause cannot regulate service transactions (healthcare, legal, accounting, etc.).

Esp as the internet has made things easier, you can be certain it's legally arguable to "prove" that even a small time seller of some good is measurably impacting big company X.

That's not how it works at all. But what do I know? I've only successfully practiced law for a decade in state and federal courts.

[SlowRobotAhead]

Yes! Good point. It's remarkable commerce clause passed this many years of scrutiny. It's extremely difficult to think of things it doesn't apply to.

[forapurpose]

On what is this analysis based? No offense to the parent, but I've learned that analyses of law by non-attorneys, while they can be valuable in regard to principles, are about as accurate as an attorney's analysis of a software project.

[SlowRobotAhead]

Dude. I wrote an ELI5 for a non-American to get the idea of what 10A and some factors around it. Not everything needs an in depth dissertation.

Feel free to reply to him with your expert analysis that contradicts my simple overview.

[ricree]

The full text 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.

What, exactly, this means has been a matter of ongoing debate for much of the amendment's existence. Some of the more fervent states' rights advocates have considered it a hard check on the power of the federal government, while at other times it has been considered little more than a truism.

My own personal read on it is that it defines the nature of state and federal lawmaking power, from the perspective of the constitution. Federal law is strict. The constitution allows it certain specific powers and subjects it is allowed to govern, and it must stay within those. State laws, from a federal perspective, are permissive. The constitution bars certain powers from the states, but anything not banned they are allowed to regulate.

In practice, this means less than it might, because the constitution's powers allow the federal government a lot of room to regulate and govern. At the state level, incorporation doctrine also limits their powers a fair bit.

In terms of judicial history, the 10th is one of the less significant parts of the Bill of Rights, becoming an issue in court far less than, say, the First Amendment (freedom of speech/press/religion) or Fourth (limits to search and seizure/ warrant requirements). On the other hand, it has come up more often than the Third (forced quartering of troops during times of peace).

[greggarious]

>On the other hand, it has come up more often than the Third (forced quartering of troops during times of peace)

I'm surprised no one has made a 3rd amendment argument against so called "wiretap rooms" in our nation's ISPs

https://theintercept.com/2018/06/25/att-internet-nsa-spy-hub...

[Finnucane]

The Supremacy clause of the constitution means that state law can’t be contrary to the constitution. So if the 8th amendment applies in this case, the state law is overruled.

[forapurpose]

The article says it's the due process clause (the 14th Amendment) which extends Constitutional law to the states.