"States rights" and fights about federal power permeate our history from before the birth of the nation. What is the fuss about, and what are the political stakes?
Today's diary topic is the 10th amendment and the commerce clause.
We must never forget, that it is a constitution we are expounding.
McCulloch v. Maryland
This topic was generated by a discussion I had with The Crusty Bunker.
http://www.dailykos.com/...
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."
The commerce clause states that Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
The Federal government has only limited powers. The Constitution includes a list of powers that Congress has. The list is exhaustive; if it isn't on the list, Congress cannot do it. The history of the nation has been plagued by many heated arguments on this topic. How much power does the federal government have?
By itself, the 10th amendment does not mean anything.
The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.
United States v. Darby, 312 U.S. 100, 124 (1941)
However the related question of commerce clause interpretation is very much active in the courts today. The commerce clause and the 10th amendment are two sides of the same coin; what does the federal government have the power to do?
Which of the following does the federal government have the power to do under the constitution, and which is "reserved to the states":
1. Force a large hotel in downtown Atlanta to provide services to black people.
2. Force a small, mom-and-pop diner in a rural area to seat black people (not just takeout).
3. Pass a law preventing anyone from carrying a weapon within 100 yards of a school.
4. Provide enhanced punishments for domestic violence crimes.
5. Prohibit child labor.
6. Federal law against hate crimes against gays.
1-5 are real cases, 6 is (to my knowledge) still hypothetical.
Congress claims to have the power to pass each of these laws because it can "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Starting with #5.
In Hammer v. Dagenhart, 247 U.S. 251 (1918), the Court struck down #5 because the Court said that the manufacturers employing child labor did not engage in interstate commerce, only manufacturing.
To that Court, this reading was "common sense." And it does make a certain sense because, in common parlance, "commerce" does not include sewing or manufacturing, only sale. Many manufacturers do not sell interstate, they only sell to distributors, who then resell to merchants over state lines. Only the distributors and merchants are engaged in interstate commerce. So the law regulating manufacturing is struck down.
If Hammer were still the law of the land, none of the other laws (1-4, 6) would stand a chance.
All of these laws would be struck down as well, because none of them directly involve "interstate commerce," so they get struck down as beyond federal power.
But, times changed, and so did the court. FDR's court threw out the distinction between commerce and manufacturing, and said that if the regulated activity had a "substantial effect" on commerce, then it would not be struck down.
The court did not strike down any laws from 1937-1995. Both #1 and #2 were upheld, as well as laws regulating how much wheat you could grow (even if only for home consumption!). If the commerce clause authorizes congress to regulate wheat grown for private use, congress can do almost anything. Everything, it seemed, had a substantial effect on commerce.
In 1995, the court started shrinking commerce again. The court struck down #3. United States v. Lopez, 514 U.S. 549 (1995). Why? Aren't guns often sold in interstate commerce? Doesn't regulation of the use of guns have a substantial effect on commerce? The court disagreed.
Then the court struck down a law similar to #4. United States v. Morrison (2000).
To Rehnquist, it seems, the commerce clause was awfully small. And who knows what will happen next. If the commerce clause keeps shrinking, we could see a massive reversal of federal civil rights law. Would 6 pass constitutional muster today?
Most of federal criminal law relies on the commerce clause. Most federal civil rights law also relies on the commerce clause. In fact, almost all federal law relies on the commerce clause. While most social liberals are pleased to limit federal power when social conservatives are in charge, it is important to remember that political tides change. Historically the 10th amendment and a limited commerce clause have been used to prevent progressive laws from being passed by the federal government. The Rehnquist Court's states rights agenda is no different.
It should be clear from this discussion that the tenth amendment is not a civil libertarian manifesto. For example, if Jeb wanted to intervene in Schiavo, a broad 10th amendment would have barred the federal government stopping Jeb. However, because of the history, a broad commerce power has become inextricably linked to federal civil rights law.
What is at stake is the role of the federal government. What role does federal government have in crime prevention, education, civil rights, etc. How are the lines drawn between the federal power to regulate interstate commerce and State power to regulate almost everything else?
DISCLAIMER This is not legal advice. Nothing in this diary or in any of the comments should be construed as legal advice.