[john_b]

The 10th Amendment is largely a fiction today. Instead, the opposite is true: the federal government frequently claims and uses novel powers until a Supreme Court case says it can't. And sometimes those powers get minor modifications to enable their re-use afterwards.

The only fundamental force resisting these types of power grabs is a large body of citizens who both know and exercise their rights, and who look at government with suspicion instead of looking at it as a protector.

[rayiner]

The 10th amendment has no independent significance. It says:

> 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.

If an exercise of power can be justified by reference to some Constitutional provision, then it is by definition delegated and the 10th amendment does not apply. If an exercise of power cannot be justified by reference to some Constitutional provision, then the 10th amendment is irrelevant because the federal government can't exercise a non-enumerated power anyway. In other words, there cannot be a situation where one provision of the Constitution says something is okay, but the 10th amendment says it isn't.

As far as "power grabs"--the government has always exercised plenary power over what comes into and out of the U.S. Establishing the Customs service was one of the very first things the First Congress did. Moreover, one of the founding purposes of the federal government was national security, and the federal government was always conceived of as having broad power in that area. Which is precisely why it's tautological.

[pash]

We've had this conversation before [0], and I pointed out then that the tautological interpretation of the Tenth Amendment appeared only in the first decades of the twentieth century, not coincidentally in the jurisprudence of the very judges who started the parade of vast new federal powers rolling.

The interpretation of the Tenth Amendment as a tautology—as a uniquely meaningless bit of prose in our constitution—did not exist in the first eleven or twelve decades of our country's history, and it seems to be quite clearly at odds with the explanation of Federalist 45 [1], in which James Madison wrote,

> The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

0. https://news.ycombinator.com/item?id=4948005

1. http://press-pubs.uchicago.edu/founders/documents/amendXs4.h...

[rayiner]

Im not relying on judicial authority. I'm talking about the plain text of the amendment. And while the tautology point wasn't written until this century, it's not like the 10th amendment was used as a check before that.

The Federalist quote doesnt pertain to the 10th amendment. It is about the concept of enumerated powers in general. The 10th amendment isn't what makes the federal government one of enumerated powers, which is precisely why its superfluous.

And it is true that the framers envisioned the states having power over ordinary life. They also envisioned the federal government having broad power over interstate commerce. They didn't foresee that technological change would cause the latter to swallow the former.

[pash]

The text of the amendment is not tautological in itself: nowhere else in the constitution is it made clear whether the enumerated powers are a mere sampling of the federal government's authorities or an exhaustive list of them. So the Tenth Amendment is broadly understood to have codified the doctrine of enumerated powers—that is, the idea expressed by Madison in Federalist 45, that the enumerated powers are in fact meant to be taken as an exhaustive list.

That's why the Tenth Amendment was included in the Bill of Rights, as is quite clear from the historical record of the drafting and ratifying process. (This is not controversial, as I imagine you know.) But the meaning of the Tenth Amendment and the practical extent of the enumerated powers doctrine was nevertheless a muddle from the start, owing partly to the tension with the necessary-and-proper clause.

No one was at all sure what it took to justify a specific federal action under one of the enumerated powers. The issuance of passports is not on the list of enumerated powers, but the wartime Department of Foreign Affairs (renamed the Department of State in September 1789) was carried over into the constitutional era, issuing passports all the while. The power to annex territory—also absent from the list; but Jefferson decided that he could purchase Florida and Louisiana. And so on and so forth.

Still, there were indeed rare moments in the the nineteenth century when judges invoked the Tenth to nullify acts of Congress, as in Collector v. Day, 78 U.S. (11 Wall.) 113 (1871), which stood until 1939. It is easy to imagine that the amendment was rarely invoked before the progressive era mostly because the doctrine of enumerated powers was firmly established; the powers of the federal government were, in actual practice, vastly less in those days. The Tenth Amendment has been even more rarely invoked since the early decades of the twentieth century because progressive judges completely eviscerated it.

The Tenth Amendment means essentially nothing today, you're right, but that has not always been the case, and it's not because the words themselves are meaningless.

[higherpurpose]

This is why it's a shame the US doesn't have a Constitutional Court with its sole purpose of filtering out unconstitutional bills signed by the president before they become actual laws.

Then bills like the Patriot Act in its current form would have a much smaller chance of becoming laws, and then having the government abuse them for two decades before they are challenged at the Supreme Court.

[rtkwe]

A Constitutional Court seems like a good idea except the politics surrounding it would be at least as bad as those surrounding the Supreme Court and probably worse because it'd have an earlier and thus more powerful interdiction chance against laws.

It usually isn't that much of an issue because normally unconstitutional laws are quickly brought up through the courts and along the way injunctions are issued preventing the problematic portions of the law from being exercised. It's an issue with the latest spying and PATRIOT ACT laws (along with all it's spawn) is the fact that because of the secrecy it's fairly impossible to prove standing for the challenge to begin in the first place.

[twoodfin]

If such an institution existed, it would have so much more power than the Supreme Court that it would inevitably be politicized in a far more insidious manner than the Court is today.

The right way to keep unconstitutional bills from becoming law is to vote for representatives who won't vote for them and presidents who won't sign them. Hoping a handful of septuagenarians in robes will "do the right thing" is fundamentally an anti-small-d-democratic and anti-small-r-republican notion.