Sunday, June 30, 2013

Balkinization: Tendentious, mendacious or audacious? John Roberts rewrites the 10th Amendment

Balkinization: Tendentious, mendacious or audacious? John Roberts rewrites the 10th Amendment:
by Sanford Levinson

"One of the most astounding sentences in Roberts’s egregious Shelby County opinion gutting the Voting Rights Act is the following (slip op., p. 9): “Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10.” (emphasis definitely added) This is, of course, a highly tendentious paraphrase of the text..." 

The Tenth Amendment actually 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...."

The issue was addressed in the case McCulloch v. Maryland (1819) which voided a state tax n the national bank.  Justice John Marshall wrote:

The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land.
There is nothing in the Constitution of the United States similar to the Articles of Confederation, which exclude incidental or implied powers.
If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.
Whatever the original compact it was replaced by the post Civil War Amendments, which enable the Congress to enforce their promises by "appropriate legislation".
Roberts, Scalia, and the other conservatives vision is of state sovereignty as the fundamental sovereignty and that of the United states as contractual and secondary - except in the case of specific authorization in the text of the Constitution.

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