For JPaul, especially...

...as he has actually put a bit of effort into understanding our Constitution, but also for others who may not understand.

Strictly for informational purposes; any further debate or commentary will hopefully be on topic and lacking "rantish-ness".

The Reactionary Utopian
February 2, 2006


PENUMBRAS, EMANATIONS, AND STUFF
by Joe Sobran

You could easily get the impression that the U.S.
Supreme Court has banned public displays of the Tenth
Amendment. Actually, this hasn't happened, at least not
yet. Anyway, adults can still read it in the privacy of
their own homes, if they can lay hands on a copy. And in
the age of the Internet, it would be hard to suppress
completely.

But a conspiracy of silence, if observed by enough
people, can be as effective as an outright ban. And since
at least the days of Franklin D. Roosevelt, that lump of
foul deformity, most employees of the Federal Government
have tacitly agreed to avoid all mention of the Tenth,
which encapsulates the meaning of the U.S. Constitution.

The silence was broken in 1996 by Bob Dole, who, in
a desperate attempt to salvage his losing presidential
campaign, said he always carried a copy of the Tenth in
his wallet. Not that anyone would have been led to
suspect this from his long voting record.

The Tenth is often referred to as "the states'
rights amendment," but that's not quite accurate. It
speaks of powers, not rights. It says that the powers
that haven't been "delegated" to the Federal Government
in the Constitution are reserved to the individual states
and the people.

This was an attempt to make the Constitution
foolproof. Nice try! At the time, it may have seemed that
nobody, not even a politician or a lawyer, could miss the
point: The Federal Government could exercise only those
powers listed in the Constitution. Whatever wasn't
authorized was forbidden. The basic list was found in
Article I, Section 8. It was pretty specific: coining
(not printing) money, punishing counterfeiters, declaring
war, and so forth.

In principle, simple. Unfortunately, however, it
runs up against the politician's eternal credo: "In
principle, I'm a man of principle. But in practice, I'm a
practical man."

So the politicians, all practical men, began their
endless but fruitful search for powers other than those
listed -- "implied" powers that weren't spelled out in
the text, but were "necessary and proper" for the
execution of the explicitly enumerated powers. The very
practical Alexander Hamilton argued that a national bank
was necessary and proper in this sense; but Thomas
Jefferson hotly denied it, and soon the two men were
wrangling over what "necessary and proper" meant,
reaching an impasse over the word "and."

Among the most creative interpreters of the
Constitution was Abraham Lincoln, who found he needed all
the implied powers he could get his hands on in order to
prevent peaceful secession by the exercise of violence.
As Professor Harry V. Jaffa approvingly puts it, Lincoln
soon "discovered" a huge "reservoir of constitutional
power" that suited his purpose. Nobody had discovered
this "reservoir" before. Later such reservoirs would also
be called "penumbras, formed by emanations."

But the richest cache of penumbras and emanations
was later found in Congress's power "to regulate commerce
with foreign nations, and among the several states, and
with the Indian tribes." Especially since the New Deal,
the part about "the several states" has gotten quite a
workout. It is now interpreted to mean that the Federal
Government can "regulate" just about everything we do,
from sea to shining sea. This makes the rest of the
Constitution pretty much superfluous.

Where does this leave the Tenth Amendment? Oh,
that. The Supreme Court has held that it's just
"declaratory," a mere "truism," a trivially true
acknowledgment that the states retain any powers they
haven't actually "surrendered" (the Court carefully
avoided the fraught word "delegated").

To call all this "legislating from the bench" is an
almost imbecilic understatement. It inverts the plain
meaning of the Constitution, making it mean the opposite
of what it actually says. It's nothing less than
revolution by means of "interpretation."

If the power to "regulate commerce ... among the
several states" had been as broad as the courts now say,
Congress could have abolished slavery, imposed (and
repealed) Prohibition, and given women the vote by mere
statute, without all the bother of amending the
Constitution twice.

Notice that the Tenth Amendment is one of the few
passages in the Constitution in which the Federal
judiciary hasn't discovered reservoirs of penumbras and
emanations. I wonder why.

On state rights, and not to start a "moral debate" even though the subject probably will.

Do you j2k4 think the supreme court should continue to hold as unconstitutional the federal government ban on late term abortions (I can't imagine why they don't just put the exception for the mothers health into it, but hey that's a different matter).
It is not a question on the rights or wrongs of abortion at any level, we have covered that ground over and over, but of "state rights" or "powers".

If Roe was wrongly decided for "state powers" reasons then surely the federal ban must also be wrong.

"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."

It's actually a fabulously interesting concept.

My reading is that, if something is not Constitutionaly the remit of the United States and the Constitution does not specifically preclude something from being legislated by Individual States, then it falls to the Individual State to make it's own laws. (I capitalised "Individual" for effect).

That's a feckin' minefield and I can see why your administration would want to stfu about it.

POTUS - I've made a new law

State - The Constitution doesn't say that's your business so STFU.

POTUS - But I'm in charge.

State - You'd think that, but apparently not.

POTUS - Shit.

State - :naughty:

Quote:

---

Originally Posted by vidcc

On state rights, and not to start a "moral debate" even though the subject probably will.

Do you j2k4 think the supreme court should continue to hold as unconstitutional the federal government ban on late term abortions (I can't imagine why they don't just put the exception for the mothers health into it, but hey that's a different matter).
It is not a question on the rights or wrongs of abortion at any level, we have covered that ground over and over, but of "state rights" or "powers".

If Roe was wrongly decided for "state powers" reasons then surely the federal ban must also be wrong.

---

The different matter...They purposely left out "health" because they say "health" encompasses physical, MENTAL, and any type of "health".

They didn't want the bother of what is considered "health".

I've known for some time about the "whatever powers the feds don't, the states do" but that hasn't been followed for...ever or when it's convenient for the feds.

Quote:

---

Originally Posted by vidcc

Do you j2k4 think the supreme court should continue to hold as unconstitutional the federal government ban on late term abortions (I can't imagine why they don't just put the exception for the mothers health into it, but hey that's a different matter).

I do think that, if the Fed further pursued the ban, it ought to have included a caveat for life/death/health in some fashion, but I also think something else:

It may have been this was omitted as a means of insuring the issue eventually made it back to the Court.

The hoped-for result would be (I imagine) that the Supremes would overturn Roe and lay the issue before the states, as would be proper.

The master plan (if indeed there is one) might be along these lines.

Without taking the time to bore you with the documentation (which you may be aware of, anyway), Roe v. Wade was an orchestrated effort to achieve the resultant "right".

It is not a question on the rights or wrongs of abortion at any level, we have covered that ground over and over, but of "state rights" or "powers".

Correct.

This has been the basis of any debate here I have ever participated in.

If Roe was wrongly decided for "state powers" reasons then surely the federal ban must also be wrong.

---

In my opinion, this would also be correct; the federal "ban" was a situational reaction to a misbegotten law, calculated to prompt a re-examination of Roe.

Quote:

---

Originally Posted by JPaul

"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."

It's actually a fabulously interesting concept.

My reading is that, if something is not Constitutionaly the remit of the United States and the Constitution does not specifically preclude something from being legislated by Individual States, then it falls to the Individual State to make it's own laws. (I capitalised "Individual" for effect).

That's a feckin' minefield and I can see why your administration would want to stfu about it.

POTUS - I've made a new law

State - The Constitution doesn't say that's your business so STFU.

POTUS - But I'm in charge.

State - You'd think that, but apparently not.

POTUS - Shit.

State - :naughty:

---

:) I understand your compulsion, but haven't a clue as to your point. :huh:

Quote:

---

Originally Posted by j2k4

In my opinion, this would also be correct; the federal "ban" was a situational reaction to a misbegotten law, calculated to prompt a re-examination of Roe.

---

Be interesting then to see the conservative outrage if the new boys say it is constitutional. I won't hold my breath though.

I think Roe has had enough challenges without this bill. An interesting theory though.
Btw.
I support the ban (but only if the health exception is included) and believe, given that I agree with Roe, federal procedural control and limitations would be constitutional. I wouldn't go as far as banning abortion altogether though.

Quote:

---

Originally Posted by vidcc

Quote:

---

Originally Posted by j2k4

In my opinion, this would also be correct; the federal "ban" was a situational reaction to a misbegotten law, calculated to prompt a re-examination of Roe.

---

Be interesting then to see the conservative outrage if the new boys say it is constitutional. I won't hold my breath though.

I think Roe has had enough challenges without this bill. An interesting theory though.
Btw.
I support the ban (but only if the health exception is included) and believe, given that I agree with Roe, federal procedural control and limitations would be constitutional. I wouldn't go as far as banning abortion altogether though.

---

I don't believe a ban on abortion would result from an overturn of Roe.

Regardless of my personal beliefs (I am Pro-Life) my only objection is the issue never having been decided rightfully by the states.

If the Court finds Roe unconstitutional, the states can have their referenda, the issue will be decided, and we can stop talking about it.

Certainly, if this happens, there will be a variety of qualifications/restrictions/what-have-you, but I sincerely don't believe there will be an outright ban anywhere; in fact, in California, they'd probably make it mandatory, or at least give you a tax credit for doing it.

If the people get the chance to decide, there is no gripe left; the system will have worked, no matter the result, and even that can be revisited down the road.

I don't see how anyone could ask for more.

Quote:

---

Originally Posted by j2k4

I don't believe a ban on abortion would result from an overturn of Roe.

Regardless of my personal beliefs (I am Pro-Life) my only objection is the issue never having been decided rightfully by the states.

---

For the life of the flesh is in the blood.

Quote:

---

Originally Posted by Busyman

Quote:

---

Originally Posted by j2k4

I don't believe a ban on abortion would result from an overturn of Roe.

Regardless of my personal beliefs (I am Pro-Life) my only objection is the issue never having been decided rightfully by the states.

---

For the life of the flesh is in the blood.

---

Why the edit?

Quote:

---

Originally Posted by j2k4

I don't believe a ban on abortion would result from an overturn of Roe.

Certainly, if this happens, there will be a variety of qualifications/restrictions/what-have-you, but I sincerely don't believe there will be an outright ban anywhere; in fact, in California, they'd probably make it mandatory, or at least give you a tax credit for doing it.

---

you don't think it will be banned anywhere

Some states legislators are even trying to make it a crime to assist a woman going to a different state to have an abortion.

But I don't want to go into that as it's just going to lead to covered ground about personal morals. I only raise it in reply.

Quote:

---

Originally Posted by j2k4

Quote:

---

Originally Posted by Busyman

For the life of the flesh is in the blood.

---

Why the edit?

---

Why does it matter?:blink:

Quote:

---

Originally Posted by Busyman

Quote:

---

Originally Posted by j2k4

Why the edit?

---

Why does it matter?:blink:

---

Because my e-mail notification includes your pre-edit post, and I wondered why you changed it.

You must have decided you didn't want an answer.

Never mind.

Quote:

---

Originally Posted by vidcc

Quote:

---

Originally Posted by j2k4

I don't believe a ban on abortion would result from an overturn of Roe.

Certainly, if this happens, there will be a variety of qualifications/restrictions/what-have-you, but I sincerely don't believe there will be an outright ban anywhere; in fact, in California, they'd probably make it mandatory, or at least give you a tax credit for doing it.

---

you don't think it will be banned anywhere

Some states legislators are even trying to make it a crime to assist a woman going to a different state to have an abortion.

But I don't want to go into that as it's just going to lead to covered ground about personal morals. I only raise it in reply.

---

Some legislators?

Fear not, vid; such efforts will surely be met by referenda, then we shall see.

Anything else is posturing, as well you know.

Quote:

---

Originally Posted by j2k4

Quote:

---

Originally Posted by Busyman

Why does it matter?:blink:

---

Because my e-mail notification includes your pre-edit post, and I wondered why you changed it.

You must have decided you didn't want an answer.

Never mind.

---

Your a sharp one.;)

I already know your answer.