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Noted Conservative Hack Jonah Goldberg posted a little article tearing into the idea that the Supreme Court is the place where we define what is and is not constitutional. He is defending the new radical Republican talking point that all legislation should have a constitutional justification attached to it. This is the Tenther’s (folks who think that the powers of the Federal Government are completely enumerated in the Constitution and the Tenth Amendment gives all other powers to the states individually) favorite meme.

They would use this thinking to end the Federal minimum wage, Social Security, Medicaid and Medicare. All the big Tea Party faves have this idea, with Joe Miller, Sharon Angle and Christine "I am not a witch" O’Donnell really leading the charge.

"Originally posted at"

This idea is nuts on the surface but it is packed full of nutty goodness as you get deeper as well. The whole push for "constitutional fealty" by the Right is a ruse and always has been. The reason that they want to return to so called original intent it so wipe out two centuries of case law that does not suit their radical agenda.

Things like the Loving decision and Brown v Board of Education have pushed our civil rights in the direction that seems most consistent with the intent of the Framers who wanted the people of their nation to be free and equal under the law.

Mr. Goldberg makes the point that all legislators should be deciding for themselves what is and is not constitutional and should vote against anything they think is unconstitutional. That is fine as far as it goes, but he fails to understand that the while there is a need to think about constitutionality of legislation, the Legislative and Executive Branch are political branches by design. They have other concerns than just the law and the Constitution.

This can be clearly seen in the over-reaction to the 9/11 attacks. A partisan majority in the House and Senate, at the demand of their constituents, put into affect laws that would have been anathema to a previous Congress. Further the Executive Branch set out to do things which the Supreme Court has found to be unconstitutional in terms of declaring citizens "enemy combatants" and holding prisoners indefinitely.

This same Congress and Executive Branch enacted a law invalidating Heaves Corpus, the right to challenge your detention and face your accusers. It also tried to prevent the Courts from even reviewing this law.

Mr. Goldberg asks, sarcastically:

Before we get to the historical niceties, a question:
Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Anyone? Anyone?
How about Presidents? Should they sign such legislation into law?

All the acts above were voted and signed into law, and based on Goldberg’s premise we have to assume they were thought to be constitutional by those who proposed and voted one them. The thing is not everyone agreed that they were Constitutional, including the branch of government that has become our arbiter of the Constitution, the Judicial branch.

These abuses show exactly why the Supreme Court must be the final say. The reaction of a political branch to the political situation of the nation can lead to laws that are contrary to the goals of the nation, to provide for the common defense and secure the blessings of liberty. Without a review of calmer heads who do not have to look to the fickle whim of the electorate for their continued employment gives us a check that is badly needed, especially in times when demagoguery and know-nothingism runs rampant.

It is not as though there are not checks on the Judiciaries’ powers as well. Yes, the Supreme Court is the final say on what is and what is not constitutional, but the Legislative Branch can keep working on legislation until it passes muster. Or there can be a change in the Constitution and then the High Court would need to use that as part of its thinking going forward.

Basically Goldberg is using the old reductio ad absurdum argument, where he takes a outlandish premise, extrapolates to the completely absurd then argues against that absurd conclusion. There is no doubt that legislators should consider if a piece of legislation is constitutional or not. However there is a wide range of opinion, even among Supreme Court Justices what this means. To assume that some of our less than swift legislators will take the time to think through all the constitutional ramifications of every piece of legislation, when many of them don’t read the entire bill, is absurd in and of itself.

However Mr. Goldberg’s goal is not good government. He is more interested in making sure that the powerful interests that many legislators lean on to tell them if a law is good policy or not continue to have a disproportionate amount of power. He wants to spin up his low information base to the idea that we are betraying the Constitution while weakening the power of the only branch that can and will put a check on a reactionary political climate and prevent the legislating away of rights protected by the Constitution and centuries of law based on it.

No system of government is perfect, as Winston Churchill said:

Democracy is the worst form of government. With the exception of every other form tried.

This premise that the courts should not interpret law is one that conservatives love. It plays into the idea that complex problems can be solved with simple solutions, the beloved and mythical "common sense". In the governance of a nation of 300 million plus citizens spread out over a third of continent there can be no simple solutions. Having one place where the final say is granted is a needed aspect of governing and pushing know-nothingism in regards to it is at best disingenuous and at worst dangerous to our overall Republic.

The floor is yours.

Originally posted to Something the Dog Said on Tue Oct 05, 2010 at 06:07 AM PDT.

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Comment Preferences

  •  Tips? Flames? (34+ / 0-)

    Some intellectual honesty from conservative commentators?

    Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

    by Something the Dog Said on Tue Oct 05, 2010 at 06:06:55 AM PDT

  •  This is also why (10+ / 0-)

    Ruth Bader Ginsberg is so adamantly advocating that all judges be appointed, not elected.

    We've got to fight their millions of dollars with millions of our voices. - Pres. Barack Obama

    by RhodaA on Tue Oct 05, 2010 at 06:12:15 AM PDT

  •  This goes hand in hand (6+ / 0-)

    with their literal interpretation of the bible.  They cannot have a "living" document because new interpretations befuddle them.  Why should there be change? "I am comfortable with life, we do not need to change anything" is the mantra.  Somebody told me what to do dammit and I'm not going to try something new.!  They would have us all back to the Dark Ages.  The better to fleece you all say the rich!

    •  even so (7+ / 0-)

      Their "literal" interpretation is selective and tendentious.  The stuff about the rich having a hard time getting into heaven, or giving all your worldly goods to the poor, the beatitudes never seems to come up for these literalists.  It's all 10 commandments and "abomination unto God" - picking and choosing.

      Ditto their constitutional literalism.  The bits about "common welfare" and "equality for all" never seem to come up.  They really hate the Declaration of Independence because it's really hard to put a conservative spin on that document, so they usually just ignore it.

      •  There are other problems with the notion as well (4+ / 0-)
        Recommended by:
        Ice Blue, tobendaro, RenMin, Larsstephens

        "Literal interpretation" makes no sense except when the interpretation takes place entirely in the context in which the words were written. Which of course is impossible. There is a bit of reductio ad absurdum there as well but overall it is true.

        Even for something originally composed in English (which of course the Bible was not, but don't tell the fundies that), the meanings of words change over time. The notion of "original intent" thus fails entirely, just as the notion of "literal interpretation of the Bible" does.

      •  hit 'em with the adjacent verses out of Leviticus (0+ / 0-)

        the way Spock's dad Sarek's did in Diane Duane's wonderful "Spock's World."

        Wingnut head explosions.

        LBJ & Lady Bird, Sully Sullenberger, Molly Ivins, Barbara Jordan, Ann Richards, Drew Brees: Texas is No Bush League! -7.50,-5.59

        by BlackSheep1 on Tue Oct 05, 2010 at 09:37:19 AM PDT

        [ Parent ]

        •  Last night (1+ / 0-)
          Recommended by:

          there was a righty conversing here that stated he doesn't believe in the homosexual lifestyle because it is a choice and one shouldn't make that choice ala the Bible.  He then, when confronted with Leviticus, proceeded to lecture about how Christ put the old rules aside for Gentiles.  But continued to argue that proscriptions against homosexuality were perfectly legitimate.  Man, they are so able to trick themselves with bullshit.

          •  tobendaro, you gotta be stubborn with 'em (1+ / 0-)
            Recommended by:

            'cause lots of 'em would bring back stoning if they could (and lots of 'em don't realize the Inquisition didn't have Biblical roots: it was a political machine designed to amass loot for the church).

            LBJ & Lady Bird, Sully Sullenberger, Molly Ivins, Barbara Jordan, Ann Richards, Drew Brees: Texas is No Bush League! -7.50,-5.59

            by BlackSheep1 on Tue Oct 05, 2010 at 10:11:27 AM PDT

            [ Parent ]

            •  I try hard (1+ / 0-)
              Recommended by:

              I really get riled up by these people.  They are so obstinatly set on their views, nothing will change them.  I just hope that some day when they have to face a problem they will have an epiphany and get a clue due to something someone pushed back on during such a discussion.  This particular guy was a classic case of denial in the way he has decided that homosexuality is a choice.  Just too ignorant to bear in silence.

    •  They want constitutional interpretation set back (3+ / 0-)
      Recommended by:
      BlackSheep1, tobendaro, RenMin

      Why not set it back to the mid-60's, as long as we're picking where to hit the reset button to?

      And, hey, nobody likes changing.  It's often uncomfortable.  Sometimes, I'd love to fall back into an easy comfortable routine>

      And when you grow up, you realize that change is a part of life that is to be accepted.

      "Unseen, in the background, Fate was quietly slipping the lead into the boxing glove." P.G. Wodehouse

      by gsbadj on Tue Oct 05, 2010 at 08:26:16 AM PDT

      [ Parent ]

  •  "Johan" goldberg?? (1+ / 0-)
    Recommended by:
    Something the Dog Said

    Title of diary needs to be changed.

  •  What a load of twaddle... (7+ / 0-)

    Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Anyone? Anyone?
    How about Presidents? Should they sign such legislation into law?

    Ummm... seriously WTF?  No, I don't think legislators should vote for unconstitutional legislation.  So what?  They do it anyway.  That's pretty much the point he's missing here... Jesus, what a dipshit.  

    "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." -- Dom Hélder Câmara

    by SLKRR on Tue Oct 05, 2010 at 06:23:37 AM PDT

  •  His main point strikes me as unobjectionable. (4+ / 0-)

    Does anyone, anywhere, think legislators should vote for legislation they think is unconstitutional? Anyone? Anyone?

    That's his main thesis here: Congress has a duty to assess the constitutionality of legislation.

    I don't see how that's even arguable.  

    •  It isn't but to continue on to say that the (6+ / 0-)

      the Supreme Court should not be the final arbiter is specious.

      Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

      by Something the Dog Said on Tue Oct 05, 2010 at 06:26:25 AM PDT

      [ Parent ]

      •  I don't think he's reaching that far. (3+ / 0-)

        I don't see him arguing against judicial review, but sticking more closely to the notion that Congress has an independent duty to find that its laws are constitutional.  

      •  I don't think anybody's saying that (2+ / 0-)
        Recommended by:
        burrow owl, RenMin

        the Supreme Court should NOT be the final word on what is constitutional.

        The more pertinent fact here is that (unlike state legislatures) the federal government does not have plenary power to do whatever it wants.  Congress has only the power and authority specifically granted to it in the Constitution.  

        I, frankly, see no harm in requiring Congress, as part of legislation, to cite the Constitutional provision that provides the authority to pass such legislation.  

        •  So they'd cite the general welfare clause and the (0+ / 0-)

          necessary and proper clause whenever they enacted a law that wasn't specifically enumerated in the Constitution -- and they'd be right.

          See my post below -- the constitutional doctrine of implied powers has prevailed in our country since the earliest days of the Republic -- at least since George Washington and Alexander Hamilton relied on implied powers to overcome objections that the Bank of the United States was unconstitutional.

          "[W]e shall see the reign of witches pass over . . . and the people, recovering their true spirit, restore their government to its true principles." Jefferson

          by RenMin on Tue Oct 05, 2010 at 09:30:46 AM PDT

          [ Parent ]

    •  it's arguable because it is tendentious. (5+ / 0-)

      The actual argument is about what makes some constutional, and who gets to decide that. What Mr. G really wants is that all legislation genuflect towards a reactionary and partisan interpretation of America's Holiest Test.

      A soft answer turneth away wrath: but grievous words stir up anger (Proverbs 15:1)

      by Boreal Ecologist on Tue Oct 05, 2010 at 06:28:52 AM PDT

      [ Parent ]

    •  It's a straw man. n/t (1+ / 0-)
      Recommended by:
      Something the Dog Said

      Teabaggers are Koch suckers (not that there's anything wrong with that).

      by psnyder on Tue Oct 05, 2010 at 06:36:57 AM PDT

      [ Parent ]

      •  No, it's really not. (1+ / 0-)
        Recommended by:

        Litwhick's argument is really just that stupid:

        Emily, I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution? In 2003, O'Donnell said of the Supreme Court that "it's kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system." So I do wonder a little whether she's claiming that her view of what's constitutional trumps theirs. Not a lot of space for checks and balances in that reading.

        Lithwick is flat out misreading O'Donnell; or, to the extent she isn't, but is rather asserting that Congress ought not consider the constitutionality of legislation, then her argument is borderline insane.

        •  Sorry (2+ / 0-)
          Recommended by:
          psnyder, RenMin

          But this sounds to me like a direct contradiction of the principle of judicial review established in Marbury v. Madison:

          it's kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system

          not that Christine O'Donnell has ever heard of Marbury. She thinks judicial review is an "abuse of the system!?"

  •  Well, slavery was "Constitutional" (3+ / 0-)

    'Til that dang Abe Lincoln came along.

    Conservatives never fail to astound.

    This ain't no party. This ain't no disco. This ain't no foolin' around!

    by Snud on Tue Oct 05, 2010 at 06:28:52 AM PDT

  •  The underlying argument (4+ / 0-)

    is that any fool Congressman can easily tell which laws are Constitutional - and of course, that's because Goldberg knows.

    It's the ones that put more money into the pockets of the ruling elite, directly if possible, indirectly if necessary. Those are Constitutional.

    It's not always easy to decide what the Constitution means, and we have 9 Justices because even lawyers with decades of experience disagree.

    What we'd wind up with is lawyers writing briefs saying, e.g., "Of course this law which allows left-handed people to be hunted like deer is Constitutional".

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Tue Oct 05, 2010 at 06:32:30 AM PDT

    •  for goldberg (3+ / 0-)
      Recommended by:
      Something the Dog Said, sfbob, RenMin

      It is pretty easy to tell what's constitutional:  Anything conservatives like is constitutional, and everything they don't agree with, isn't.

      That really is about what the conservative "Justices" do if you read their specious, vacuous published rulings that vacillate between whatever principles are needed to back their desired conservative ideological outcome.  The liberal judges at least occasionally do find that the law as written leads to a conservative outcome even if they personally don't like it.

  •  Conservatives Made the Opposite Case (5+ / 0-)

    Gee folks, it was Madison Vs. Marbury, from the Marshall Court run by conservative Federalists, who first established the lasting notion that The Court makes these rulings, on the basis that this is why there is one.

    Why do these Loose Cannon Constructionists think they're being conservative mucking with that?

    •  Never Confuse What They Say w What They Think (5+ / 0-)

      They say stuff in order to get what they want.

      They want everything.

      So they'll say anything.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Tue Oct 05, 2010 at 06:49:16 AM PDT

      [ Parent ]

    •  Note that was after the federalists fell (2+ / 0-)
      Recommended by:
      bmazor, RenMin

      out of power with the election of Jefferson.

      And surprise, surprise, suddenly they discover that the Federalist dominated SCOTUS is the final arbiter of constitutionality.

      That such a principled position they took. It's the same schmucks for 200 years inventing legalistic justification for power grabs. And the plebes repeat their chants like zombies.

      •  Oh, please. (2+ / 0-)
        Recommended by:
        Something the Dog Said, RenMin

        It's not that hard a question, is it?

        You have three branches of government: the legislative makes laws, the executive carries out the laws, and the judicial interprets the laws.

        So, which branch of government should be the one that interprets the Constitution (which is, after all a law).

        I'll wait while you think about it.

  •  Minor Nit, Democracy <> US Constitution (2+ / 0-)
    Recommended by:
    Something the Dog Said, RenMin

    Personally I support democracy but I've seen enough of our system.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Tue Oct 05, 2010 at 06:48:23 AM PDT

  •  Are you serious? (0+ / 0-)

    Things like the Loving decision and Brown v Board of Education have pushed our civil rights in the direction that seems most consistent with the intent of the Framers who wanted the people of their nation to be free and equal under the law.

    It makes good propaganda, I understand -- but DAMNNNN that's silly. Of course the "Founding Fathers" as a group did not want us to be free and equal under the law -- that's the whole point of the constitution, to entrench power differentials in the face of the American Revolution. The "FF'ers" didn't bother to put ANY human rights in the document -- they're all amendments forced down their throats.

    Of course Loving and Brown v BOE were built out of the post-civil war amendments against the principles of the FF'ers -- and that was done at the end of a gun, and arguably without the intention by most of the supporters of complete equality under the law (at least a majority believed so for almost a century).

    The right-wing are WRONG because they are RIGHT -- they are right that they're more faithful to the wishes of the FF'ers. That's precisely what's evil about the teabaggers -- their loyalty to men like Hamilton, Madison and Washington who supported the concentration of power in the hands of the few, who believed in mass slavery, who were against freedom and equality for all except their buddies at the top.

    Sure, this is bad propaganda; but damn, we need to grow the fuck up.

  •  this is what drives me NUTS about the Republic (5+ / 0-)

    party, they don't know SHIT but they INSIST they know EVERYTHING.

    If courts aren't there to interpret the constitution what are they there for, genius? And who is supposed to interpret the constitution, Glenn Beck?

    Ooooh, I get it! Everything the Gov has done since 1776 has been unconstitutional! We should just go back to the bill of rights and let corporations fill the power vacuum.

    Jonah Goldberg is a jackass

    A worker who votes Republican is like a chicken voting for Colonel Sanders. ~ Kossack TomP

    by MinistryOfTruth on Tue Oct 05, 2010 at 07:02:27 AM PDT

  •  Congress Supreme (2+ / 0-)
    Recommended by:
    Something the Dog Said, RenMin

    If the courts have no power to invalidate unconstitutional legislation then Congress can pass any law it likes - whatever is in the constitution.

    This is not an impossible way to run a democracy. However, it does mean that members of the legislature have to restrain the worst impulses of themselves and constituents (and campaign contributors) who feel something must be done. How good is the chance that respect for the fine detail of the constitution would soon be lost? Indeed it is far more likely that the federal government would give itself more powers, rather than abandoning everything it does which a minority of the electorate considers to be unconstitutional.

    Perhaps the people pushing the idea that Marbury v Madison was wrongly decided, would like to contemplate what a majority in Congress could do unconstrained by anything but their own consciences or fear of retribution at the next election.

    There is no man alive who is sufficiently good to rule the life of the man next door to him. Sir Rhys Hopkin Morris, M.P.

    by Gary J on Tue Oct 05, 2010 at 07:26:18 AM PDT

  •  Goldberg's case (1+ / 0-)
    Recommended by:

    Having now read the article I see that Mr Goldberg is arguing that the Supreme Court does not have the exclusive right to determine constitutionality. He does not explicity address the question of who has the final right to decide on what the constitution means, if there is disagreement between the branches.

    Clearly Congress should not pass and the President should not sign legislation they consider to be unconstitional. There are also questions on which the courts are likely to defer to the determination of the political branches of the government. However, on most issues, the court (as I understand US constitutional law) will have the last word on constitutionality (subject to the process of constitutional amendment or to a subsequent decision of the Supreme Court taking a different interpretation of what the constitution means).

    My earlier post is thus not particularly relevant to the article of Mr Goldberg, but may address the views of other people considering a more extreme interpretation of the division of powers than Mr Goldberg did.

    There is no man alive who is sufficiently good to rule the life of the man next door to him. Sir Rhys Hopkin Morris, M.P.

    by Gary J on Tue Oct 05, 2010 at 07:49:20 AM PDT

  •  Marbury v. Madison, 5 U.S. 137 (1803) (2+ / 0-)
    Recommended by:
    Something the Dog Said, RenMin

    Established the power of the judicial branch to decide that an act of another branch is unconstitutional.  Everyone should read it and contemplate the absurdities of any other conclusion.

    The case has stood the test of a lot of time and is firmly established as the law of the land.  If Mr. Goldberg has any NEW arguments, I'd like to hear them.

    Human reason treads water in a sea of animal impulses.

    by legalarray on Tue Oct 05, 2010 at 08:33:18 AM PDT

    •  Goldberg is not arguing that (0+ / 0-)

      he is not saying that anybody other than the SCOTUS is the final word on what is constitutional.

      The argument is that Congress should include in every piece of legislation the Constitutional provision that gives them authority to pass the legislation.

      Congress does this most of the time, any way.  (As I recall, for example, the Health Care legislation cites the Commerce Clause as the authority for that.)  I'm not sure why anybody would have an objection to saying that they should do it all the time.  

  •  If not the Supreme Court, Who? (1+ / 0-)
    Recommended by:
    Something the Dog Said

    Mr. Goldberg, as the diarist point out, legislators will inevitably disagree on what is and is not constitutional.  Thus, by definition, a majority would decide.  Do you really think letting a majorit decide whether a given law is constitutional is preferable to giving that decision to the judiciary?  Under your theory, every time there is a new election, the meaning of the constitution is likely to change.  Talk about a living, constantly changing Constitution -- something I thought conservatives were against.  This would make the rule of law impossible.

    As for the Federal Government having only the enumerated powers, that's equally absurd.  The doctrine of implied powers dates back to George Washington and Alexander Hamilton, who had no constitutional problem with setting up the Bank of the United States, even though there is nothing in the Constitution that explicitly authorizes a national bank.  Hamilton even wrote an opinion about it.  Talk about original intent!  The first President and President of the Constitutional Convention, and one of the authors of the Federalist Papers, decided against the strict reading of the enumerated powers clause that you are advocating within just a few years of the Constituion being adopted.  

    To be quite blunt, who the fuck do you think you are to second guess George Washington and Alexander Hamilton about the meaning of the Constitution?

    "[W]e shall see the reign of witches pass over . . . and the people, recovering their true spirit, restore their government to its true principles." Jefferson

    by RenMin on Tue Oct 05, 2010 at 09:22:28 AM PDT

    •  The SCOUS disagrees with you, apparently (0+ / 0-)

      Your notion that the Congress has plenary powers and is not limited to what power it is specifically given in the Constitution is not, by any means, a universal view, nor has it been accepted by the SCOTUS.  See New York v. United States, 488 U.S. 1041 (1992):  

      In 1788, in the course of explaining to the citizens of New York why the recently drafted Constitution provided for federal courts, Alexander Hamilton observed: "The erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties." The Federalist No. 82, p. 491 (C. Rossiter ed. 1961). Hamilton's prediction has proved quite accurate. While no one disputes the proposition that "[t]he Constitution created a Federal Government of limited powers," Gregory v. Ashcroft, 501 U. S. _, _ (1991) (slip op., at 3); and while the Tenth Amendment makes explicit that "[t]he 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 task of ascertaining the constitutional line between federal and state power has given rise to many of the Court's most difficult and celebrated cases. At least as far back as Martin v. Hunter's Lessee, 1 Wheat. 304, 324 (1816), the Court has resolved questions "of great importance and delicacy" in determining whether particular sovereign powers have been granted by the Constitution to the Federal Government or have been retained by the States.

      These questions can be viewed in either of two ways. In some cases the Court has inquired whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution. See, e. g., Perez v. United States, 402 U.S. 146 (1971); McCulloch v. Maryland, 4 Wheat. 316 (1819). In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment. See, e. g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985); Lane County v. Oregon, 7 Wall. 71 (1869). In a case like this one, involving the division of authority between federal and state governments, the two inquiries are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress. See United States v. Oregon, 366 U.S. 643, 649 (1961); Case v. Bowles, 327 U.S. 92, 102 (1946); Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534 (1941).

      It is in this sense that the Tenth Amendment "states but a truism that all is retained which has not been surrendered." United States v. Darby, 312 U.S. 100, 124 (1941). As Justice Story put it, "[t]his amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities." 3 J. Story, Commentaries on the Constitution of the United States 752 (1833). This has been the Court's consistent understanding: "The States unquestionably do retai[n] a significant measure of sovereign authority . . . to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government." Garcia v. San Antonio Metropolitan Transit Authority, supra, at 549 (internal quotation marks omitted).

      Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power bythe First Amendment. The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.

      Or, as the SCOTUS said in United States v. Morrison,

      Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.). Congress explicitly identified the sources of federal authority on which it relied in enacting §13981. It said that a “federal civil rights cause of action” is established “[p]ursuant to the affirmative power of Congress … under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution.” 42 U.S.C. § 13981(a). We address Congress’ authority to enact this remedy under each of these constitutional provisions in turn.

  •  So how about two amendments (0+ / 0-)

    The ERA, which would summarily abort DOMA, DADT, and "civil unions" (as it would simply eliminate 'separate but equal' treatment as well as all discrimination based on gender)


    Corporate Personhood Annulment, which would summarily abort Citizens United as well as a host of other anti-human-being policies on offer from the hard right?

    LBJ & Lady Bird, Sully Sullenberger, Molly Ivins, Barbara Jordan, Ann Richards, Drew Brees: Texas is No Bush League! -7.50,-5.59

    by BlackSheep1 on Tue Oct 05, 2010 at 09:39:40 AM PDT

  •  I think this is an overreaction (0+ / 0-)

    Congress often cites the Constitutional provision that provides the authority for it to pass legislation.  If I recall correctly, the Health Care bill (or one of the forms of it, anyway) cited the Commerce Clause as the Constitutional authority for passage of that bill.  In addition, Congressional staff ALWAYS looks at legislation to assure that there is a Constitutional basis for what Congress is doing.  We're not talking about anything unusual.  I'm not sure what the big deal is in saying that Congress always should include that kind of statement as part of the bill, which is (as I understand it) is what is being proposed.  

    As I understand it, NOBODY is saying that the SCOTUS doesn't have the final word on the constitutionality of legislation.  Instead, the proposal is that what Congress does some of the time -- i.e., cite the provision of the Constitution that gives it authority to pass the legislation -- it should do all of the time.  

    Personally, I don't find that proposal objectionable.  

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