10th Amendment Townhall (Part 2)

Posted on February 23, 2010. Filed under: Politics | Tags: , , , , , |


 

 Texas Supreme Court Justice Don R. Willett, was given a daunting task at the recent Tenth Amendment Townhall in Plano.  He would deliver  “The Tenth Amendment: A Brief Legal and Historical Primer”.  This overview would serve the audience well as a basis of understanding for presentations to be given for the remainder of the day. 

 

His opening observation was that the Texas Constitution is very large compared to the United States Constitution. The US Constitution is relatively brief and has had few amendments.  The Constitution was written with a sparing number of words, which would wield a great deal of power and thought behind each component of the document.  These men were creating the foundation for a new nation. 

 

The 10th amendment is short and to the point.  Of all the states ratifying amendments, the 10th was the only one proposed by each of the states.  Liberty and localism work together.  The constitution takes the notion of we the people very seriously and defines it distinctly.

 

Madison designed the elegant 10th amendment with a very clear, brief definition.  It reads as follows:  “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.”

 

Justice Willett proceeded to give us examples of how court decisions have not always upheld the state rights identified in the Tenth Amendment.  In fact, there have been multiple court decisions through the years which permitted the Federal Government to trump state’s rights.   Following are a few of those examples given by Justice Willett.

 

New York vs  US                                                        

This Supreme court case set a precedent that the federal government cannot “order States into the service of federal regulatory purpose” via funding.   It is a key decision that has been mentioned with regard to Tenth Amendment Rights. 

                                                                                                                                           

The Brady Act

The Brady Act violated the 10th amendment as it required an action to be done.  This act was a Congressional order for the states to take an action because of an order from the Federal Government.  The majority of five justices on the US Supreme Court ruled that the interim provisions of the Brady Bill are unconstitutional.  In his opinion, Justice Scalia refers to the “dual sovereignty” established by the U.S. Constitution that federalism is built upon. His opinion states that the Framers designed the Constitution to allow Federal regulation of international and interstate matters, not internal matters reserved to the State Legislatures.

Nationalism trumps federalism….

Roe v Wade   

Justice Blackmun  

 In this case, a woman in Texas wanted to have an abortion.  Texas had a law that an abortion could only be done in cases where the mother’s life is in jeopardy.  The woman sued the Texas State Attorney General, Henry Wade on behalf of herself and all other Texas women who wanted to have abortions in the state of Texas.

Blackmun traced the history of abortion laws back to the Hippocratic Oath and concluded that laws proscribing the ending of a pregnancy in its early stages were enacted relatively recently. He cited the precedent of previous cases upholding the legality of contraceptives and used the right to privacy found in the Due Process Clause of the 14th amendment to strike down both the Texas law and a Georgia law involved in a companion case. 

 

US vs Lopez

This was the first United States Supreme Court case since the Great Depression to set limits upon the power used by Congress under the Commerce Clause of the United States Constitution. Lopez raised serious questions as to how far the Court might be willing to go in implementing judicial safeguards against federal encroachments on state sovereignty  

Five days later the court struck it down that the states would have the ability to mandate term limits on the Congress.  The court has been supportive of the Tenth Amendment at times and items such as this one arise and they restrict the interpretation of the Tenth Amendment.

Justice Thomas warns the court has come close to turning the 10th amendment on it’s head. 

The progressives state the use of the 10th amendment is simply preventing progress.  They view people who talk about it the same as if they are “truthers” or “birthers”.   The time is now for the states to assert their rights under the Tenth Amendment.  This is the way to stop the tsunami of Federal mandates that are headed for the states and it’s citizens.

“But as the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”  Alexander Hamilton

 

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