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Federalism and the Abortion Case:
Reading over the transcript from last Tuesday's Supreme Court argument involving the federal partial-birth abortion ban, I was interested to see that both Justice Stevens and Justice Ginsburg appear to have become sensitized to the scope of federal power and the role of the states in our federal system:
JUSTICE GINSBURG: . . . [U]p until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it's, it's been open to the states to make those decisions. How should that weigh in this case? And it is something new.

GENERAL CLEMENT: Well, I mean I don't think it should figure in this Court's decision. I mean principally because the other side in neither case makes a challenge based on the Commerce Clause, and I suppose there is two reasons for that. That legal reason that they don't bring the challenge is because there is a jurisdictional element that I think would address the challenges as a doctrinal matter. The practical reason I think is because this isn't the only instance in which the Federal Government has gotten involved to address issues related to the abortion context. . . .

JUSTICE STEVENS: General Clement, That brings up a question I was intending to ask you. I notice the finding says nothing about interstate commerce but the statute says any physician who in or affecting interstate commerce performs the procedures. Does that mean that the procedure is performed in a free clinic, as opposed to a profit organization, it would not be covered?

GENERAL CLEMENT: Justice Stevens, I don't think we have taken, the Federal Government hasn't taken a definitive position on that. I think it could be interpreted either way. I think my understanding is the face context, a free clinic would be covered. There's not a jurisdictional element in the face statute. So there may be differences as, in application.

JUSTICE STEVENS: But how could the Commerce Clause justify application to a free clinic? I don't understand.
jrose:
Do Stevens and Ginsburg really care about federalism, or are they grasping at an argument in order to sway a 5th vote their way? Afterall, they struck down Nebraska's partial-birth ban without batting an eye over trampling on a state's ability to legislate on the very same manner. Moreover as Clement persuasively argues, federalism plays no role in this facial challenge (it can be litagated on an as-applied basis) because of the jurisdictional restriction in the federal law.
11.11.2006 7:08pm
Eliza (mail):

But how could the Commerce Clause justify application to a free clinic? I don't understand.


Am I missing something? Isn't Wickard the obvious answer?
11.11.2006 7:10pm
anonVCfan:
I take it that your point is that it is interesting that RBG and JPS were interested, not that the SG was wrong, but at any rate, if you're not already aware, you might be interested to know that Marty Lederman has blogged about this.
11.11.2006 7:13pm
John Marshall:
Eliza is correct.
11.11.2006 7:36pm
Bart (mail):
Justices Ginzburg and Stevens display amazing hypocrisy trotting out a federalism argument which is in direct contradiction to their own past opinions.

Perhaps taking both sides of an issue is merely another facet of their "living constitution" approach?
11.11.2006 7:47pm
Misc. Guest:
I think there is a legitimate Commerce Clause argument to be made, particularly regarding a free clinic, since unlike the situation in the medical marijuana case, abortion doesn't have the nature of a commodity and is ordinarily performed locally, so there's a much better argument that it isn't an "article in commerce" subject to Federal commerce regulation

However, the plaintiffs didn't raise the issue, they raised a general facial challenge on other grounds. The Court should wait until litigants raise the issue in a relevant application to decide the Commerce Clause aspects of the case.
11.11.2006 7:58pm
Daryl Herbert (www):
JUSTICE STEVENS: But how could the Commerce Clause justify application to a free clinic? I don't understand.

If my clinic sells abortions at half price in Nevada, it might induce some Californians to have their gobs of tissue removed at my clinic. So clinics in California may have to lower prices to match.

If I'm giving away abortions for free (maybe I'm hungry), the same principle applies: California doctors might have to lower their prices if they wanted people to stay in-state.

Any "free" enterprise that takes business away from commercial enterprises is affecting commerce, which means it's affecting interstate commerce.

In a more general sense, how can killing a fetus not affect interstate commerce? We're talking about a fetus that would otherwise become a baby. Do you have any idea how much money people spend on their children? Some of those child-raising products come from out of state. And then the kid's going to grow up and join the labor market. Demographics affect interstate commerce!
11.11.2006 8:02pm
Anderson (mail) (www):
At least as interesting as the sudden passion for equal-protection law displayed by Rehnquist, Scalia, and Thomas in whatever that obscure Florida case was, a while back.
11.11.2006 8:09pm
SWCLERK (mail):

"Justices Ginzburg and Stevens display amazing hypocrisy trotting out a federalism argument which is in direct contradiction to their own past opinions.

Perhaps taking both sides of an issue is merely another facet of their "living constitution" approach?"



Of course Bart, that is the advantage of any "living" document. It means whatever you want, whenever you want. It is continuously morphing into something different--what ever the interpreter wants it to say.
11.11.2006 8:16pm
Jeremy Pierce (mail) (www):
Rehnquist, Scalia, and Thomas have been interested in equal protection since long before the obscure Florida case. It always seems to come up in those obscure cases favoring underrepresented groups in college admissions.
11.11.2006 8:57pm
Vovan:

At least as interesting as the sudden passion for equal-protection law displayed by Rehnquist, Scalia, and Thomas in whatever that obscure Florida case was, a while back.


To say nothing of Scalia's sudden concern for interstate commerce...
11.11.2006 8:58pm
Justice Fuller:
Vovan,

Scalia has already adopted an almost infinite view of interstate commerce. See his concurrence in Raich.
11.11.2006 9:16pm
John Herbison (mail):
I agree that many opponents of abortion rights are result oriented scolds who don't care one whit how they get to the preferred result. That having been said, why is whether a doctor's conduct is or is not "in or affecting interstate commerce" a factual element which the government in each case must prove beyond a reasonable doubt? In the case of a free clinic, if the performance of abortion procedures does not affect interstate commerce, why wouldn't the remedy be granting a defense motion for judgment of acquittal in that case (on either the due process ground of failure to adduce sufficient evidence of an essential element or on unconstitutionality of the statute as applied) rather than invalidating the statute on its face?
11.11.2006 9:17pm
Robert Jackson (mail):
At least as interesting as the sudden passion for equal-protection law displayed by Rehnquist, Scalia, and Thomas in whatever that obscure Florida case was, a while back.

Scalia has always championed equal protection over substantive due process.
11.11.2006 9:31pm
Marcus1 (mail) (www):
The last Stevens comment made me laugh -- was he joking, maybe? I would have guessed he was being ironic.

Generally, I'd guess they're taunting the conservatives more than presenting a concern. I doubt they're seriously considering striking it on commerce clause grounds.

At the same time, does all of federalism come down to the commerce clause? A political argument re: abortion, if not a legal argument, is that the states should decide, not the feds, or particularly the SCOTUS. Presumably that could be tied to some kind of structural constitutional argument. Of the top of my head, I don't know if you could try to turn that into something here, to say that a federal ban is particularly suspect, even if not a direct overstepping of federal power via the commerce clause.
11.11.2006 9:45pm
K Parker (mail):
John,
why is whether a doctor's conduct is or is not "in or affecting interstate commerce" a factual element which the government in each case must prove beyond a reasonable doubt?
Sigh. I have a somewhat different question: why isn't the fact that the words "or affecting" don't actually occur in the Commerce Clause of vital importance to this case? Double sigh...
11.11.2006 9:50pm
Public_Defender (mail):
If four justices vote against the measure based on Roe, how is it hypocrisy if they try to convince a colleague to vote with them based on that colleague's view on commerce?
11.11.2006 10:15pm
Kate1999 (mail):
Public Defender,

Presumably the answer is that these Justices are willing to join or even write an opinion saying things they actually don't believe in order to achieve the greater good of retaining abortion rights. Although this is merely unprincipled, not really hypocritical.
11.11.2006 10:18pm
Anderson (mail) (www):
If four justices vote against the measure based on Roe, how is it hypocrisy if they try to convince a colleague to vote with them based on that colleague's view on commerce?

What are you, some kind of grownup or something?
11.11.2006 10:24pm
marghlar:
Sigh. I have a somewhat different question: why isn't the fact that the words "or affecting" don't actually occur in the Commerce Clause of vital importance to this case? Double sigh...

Oh cool, an easy one. Art I, sec. 8, cl 18, and McCulloch v. Maryland. To win that particular fight, you'd need to overturn 187 years of interpretive tradition.
11.11.2006 10:37pm
Paul Allen:
Eliza: Dead-on right, and after Raich I think the situation is even more constrained vis-a-vis Federalism.

Anderson: You don't know that the other four are planning on basing their opinion solely on Roe. After all this law was passed precisely because Roe seems to allow it. Anyways, it is hypocritical to advance a general principle to win your point when otherwise you oppose that principle.

Misc guest: SCOTUS doesn't always bother with restricting itself to what has been briefed.
11.11.2006 10:44pm
Dave Hardy (mail) (www):
At least as interesting as the sudden passion for equal-protection law displayed by Rehnquist, Scalia, and Thomas in whatever that obscure Florida case was, a while back.

I did find the resdiscovery of equal protection by the conservative wing, and its near discarding by the liberal wing, rather amusing in that case. The sudden concern for federalism here is quite interesting here. Of course, whether Breyer suddenly forgets his committment to majoritarianism, to the "active liberty" of the majority to implement its will, may be interesting as well.

Gad, I'm glad we can count on our nine Supremes to decide cases on principle rather than by the desired result...
11.11.2006 10:59pm
Dave Hardy (mail) (www):
Of course Bart, that is the advantage of any "living" document. It means whatever you want, whenever you want. It is continuously morphing into something different--what ever the interpreter wants it to say.

Brings into mind a thought I had the other day (a variant of a point Prof. Volokh has made).

IF we were to take a "living constitution" view, what argument can be made against having an elective federal judiciary?

After all, if the constitution can evolve, presumably the relevant evolution is in the minds of the people (whose ancestors ratified the original, unevolved, one). Since they best know how it has evolved, how it is "living," why should they not choose its interpreters?

The counter would logically be that we don't want the constitution construed in accord with popular views. But that of necessity suggests that the "constitution" has meaning apart from contemporaneous popular views of what it means, i.e., that it is not living and changing. (Which happens to be my view).
11.11.2006 11:06pm
Thomasly (mail):
Justice Stevens used to be a very good lawyer.
11.11.2006 11:17pm
Dell Adams (mail):
"General" Clement?
11.11.2006 11:19pm
Classmate-Wearing-Yarmulka (www):
"General" Clement?

Solicitor General Clement is just too long.
11.11.2006 11:39pm
Marcus1 (mail) (www):

IF we were to take a "living constitution" view, what argument can be made against having an elective federal judiciary?


Well, pretty much the same ones as under an originalist view. Everything is political to an extent, and the judiciary has never been an exception. It's simply supposed to be the least political branch.


But that of necessity suggests that the "constitution" has meaning apart from contemporaneous popular views of what it means, i.e., that it is not living and changing.


Living Constitutionalists have never said that the Constitution lacks meaning. Conventionally, they argue that certain phrases like "liberty" or "due process" or "cruel and unusual" were intended to be flexible over time. In other words, it states the obvious.
11.12.2006 12:50am
K Parker (mail):
marghlar,

Uhhh, "easy" is in the eye of the beholder: now explain why under your view of Art I, sec. 8, cl 18 there could be any restrictions on Congressional authority at all.
11.12.2006 12:53am
marghlar:
Sure, I'll bite. You can formulate the standard of what is necessary and proper in any number of ways. One approach is the standard set out by Morrison and Lopez -- require a substantial effect in the area subject to congressional regulation (in those cases, commerce), supplemented by some bright line rules designed to delimit those categories (the economic endeavor requirement of Morrison). Such an interpretation does leave plenty of regulations out of bound -- such as the non-economic, traditionally-police-power types of regulations at issue in those cases.

Please note that none of the sitting justices have advocated the alternative construction of Cl. 18 that you propose. Doing so would require overruling McCulloch v. Maryland and two hundred years of interpretive doctrine. Given that the prevailing approach is a reasonable construction of text, it's hard to see the argument for eradicating two centuries of precedent in favor of another possible construction. I don't know of any living jurist who has suggested that the Court should do so.

And you need to contemplate the institutional consequences of what you propose. You'd bring about a world where there was sweeping, highly discretionary judicial review over all exercise of penumbral congressional powers. That's a whole lot of power to give to nine unelected Justices. CJ Marshall wasn't having it, and I think he was right.
11.12.2006 1:21am
Lev:

Solicitor General Clement is just too long.


Then he should be "solicitor". He isn't a general any more than the surgeon general is, or attorney general, or general viewpoint, or general opinion.
11.12.2006 1:39am
Cornellian (mail):
Justices Ginzburg and Stevens display amazing hypocrisy trotting out a federalism argument which is in direct contradiction to their own past opinions

Yep, not like those Republicans who've spent decades claiming they wanted to overturn Roe only so that each state legislature could set its own abortion policy.
11.12.2006 2:13am
David M. Nieporent (www):
Marghlar, it is inaccurate to say that "none of the sitting justices" have questioned the scope of the N&P clause; Thomas certainly has.

That having been said, I don't know why you think it's implicated here. The N&P clause does not expand the scope of other clauses. Even under the broadest reading of McCulloch, it applies to means only, not ends. The Commerce Clause debate is about ends. Since in fact the expansive interpretation of the Commerce Clause is not 187 years old, but about a century less than that, the best thing that can be said for your argument is that you're bootstrapping.
11.12.2006 3:54am
Hans Gruber:
"Yep, not like those Republicans who've spent decades claiming they wanted to overturn Roe only so that each state legislature could set its own abortion policy."

Well, soon as Roe is overturned you might have a point. I'd be comfortable with a decision that overruled both Roe and and the federal partial birth abortion ban. How about you?
11.12.2006 6:30am
K Parker (mail):
Marghlar,

Thanks for taking the time to provide that explanation.

As far as "bringing about worlds" goes, I'd rather have one in which the 10th Amendment actually limited the reach of the federal government in a meaningful way, as it was intended to, though I'll freely (but sadly) admit I've never lived in such a world.

I was intending to end this comment with "Where's Randy Barnett when you need him?" But I see Ilya Somin is a worthy replacement. :-)

And I'm voting with Hans re overruling Roe and the PBA ban.
11.12.2006 11:34am
marghlar:
Marghlar, it is inaccurate to say that "none of the sitting justices" have questioned the scope of the N&P clause; Thomas certainly has.

Reread what I wrote. I didn't say that none of them had questioned its proper scope; I said that none of them advocated overruling McCulloch (which would be necessary to effectuate what K Parker was advocating -- a regime in which no legislation could be passed that wasn't a direct regulation of commerce). I certainly agree that the precise scope of the N&P clause is subject to debate. I think the contaction of the scope of the Commerce Clause's interpretation in Lopez and Morrison made sense and was good policy.

But I was just responding to a suggestion that seemed to imply that Congress could never regulate activity that was not commerce, but had an effect on commerce. Regulating activities that effect commerce can indeed be viewed as a means of providing effective regulation of commerce, given the danger of people hiding transactions in outwardly-appearing non-commercial activity, and due to the fact that some entirely proper federal regulatory goals will be completely undercut if some amount of non-commercial activity isn't regulated as well. For instance, federal regulation of securities would be really undercut without an ability to prohibit some frauds that are not engaged in for compensation; those frauds, however, have a potentially sweeping impact on commerce, on a national scale. Regulating them is a necessary and proper way to further a rational national securities regulation policy.

If you agree with me up to that point, it's not hard to make the case that medical care is commodified (to a lesser extent of course), and that some amount of it is engaged in between transactors crossing state lines and using goods shipped in interstate commerce. It would be entirely impracticable to ask doctors to follow one set of rules when dealing with an out-of-state patient, and another when treating an in-state patient. When such a situation exists, I think regulating the whole activity is a necessary and appropriate way to resolve regulatory issues that arise concerning it. Now, I might be willing to let you persuade me that Congress must regulate towards economic ends in order to regulate mixed activities under the N&P clause, and that therefore it cannot enact pure morals legislation like the Partional Birth Abortion ban. But that's a different discussion altogether than the one I was having with K Parker.
11.12.2006 12:14pm
marghlar:
As far as "bringing about worlds" goes, I'd rather have one in which the 10th Amendment actually limited the reach of the federal government in a meaningful way, as it was intended to, though I'll freely (but sadly) admit I've never lived in such a world.

Well, that might be a good world, but I don't think you can get it from the constituiton, at least if you think meaning is more important than intent. By its terms, the 10th can't be a restriction on federal power, because it only gives states those powers NOT already delegated to the federal government. So using it to restrain other constitutional powers of the federal government is anti-textual.

But, that being said, I agree with you that the federal government regulates far too much local activity. I'd also like to see the end of both Roe and the PBA ban. I'm just not sure I want to hand the court a club as heavy as you seemed to suggest over the majoritarian branches.
11.12.2006 12:18pm
Jay Myers:
Daryl Herbert:

In a more general sense, how can killing a fetus not affect interstate commerce? We're talking about a fetus that would otherwise become a baby. Do you have any idea how much money people spend on their children? Some of those child-raising products come from out of state. And then the kid's going to grow up and join the labor market. Demographics affect interstate commerce!


Read Breyer's dissent in US v. Lopez 514 U.S. 549 (1995) (which was joined by Justices Stevens, Souter, and Ginsburg). The argument is made that possessing a gun within a certain distance from a school can be reasonably thought to effect interstate commerce because if it is legal for guns to be in proximity to schools then it could increase the number of school shootings, thus lowing the education of students. Lower education would lead to inferior jobs and lower productivity which would impact our performance in the international market. By this argument, there is no way that the aborting of millions of future workers could be seen as not being within federal jurisdiction under the commerce clause.
11.12.2006 2:22pm
k parker (mail):
Marghler,

Great discussion! Regarding this:
what K Parker was advocating -- a regime in which no legislation could be passed that wasn't a direct regulation of commerce
I hope it's just a case of excessive brevity on your part, but it could just as well be a lack of clarity of mine. In any case, I certainly don't hold that Congress can only legislate direct regulation of commerce, just that the Commerce Clause doesn't provide any authority to do so.

And this:
federal regulation of securities would be really undercut without an ability to prohibit some frauds that are not engaged in for compensation...Regulating them is a necessary and proper way to further a rational national securities regulation policy.
Well, if the securities were offered by an entity wholly contained within a single state, and only to residents of that state, I would have no objection with the position that Congress had no regulatory authority under the Commerce Clause over them.

And you're exactly right, the 10th is as you say. My intended point (which was at best implicit, sorry!) is that the existence of the 10th is yet further evidence, in case anyone needed it, that the intent was to limit what the federal government could do, and that the phrase "not delegated to the United States by the Constitution" in particular shows that they intended the main body to be a comprehensive rather than a suggestive description of federal powers. Is that any clearer?
11.12.2006 4:02pm
marghlar:
K Parker (do you prefer to be called K or Parker for short?):

I hope it's just a case of excessive brevity on your part, but it could just as well be a lack of clarity of mine. In any case, I certainly don't hold that Congress can only legislate direct regulation of commerce, just that the Commerce Clause doesn't provide any authority to do so.

Yeah, that was excessive brevity. I meant, that you were advocating that no legislation could be justified by references to the interestate commerce and N&P clauses unless it was a direct regulation of commerce. You do hold that position, right?

Well, if the securities were offered by an entity wholly contained within a single state, and only to residents of that state, I would have no objection with the position that Congress had no regulatory authority under the Commerce Clause over them.

That's a different point. (Although it's hard to imagine a modern company that doesn't engage in interstate commerce to some degree.) What I was saying is that, if you believe that the federal govt. has authority to regulate securities fraud that doesn't involve profit for the defrauder, then you necessarily believe that the federal government has the authority to regulate some non-commercial activity that has a substantial affect on commerce. If you don't think the federal government can regulate in that area, that's fine (although I think there are real pragmatic problems with saying that it can't -- allowing competing regulations from state to state of securities fraud would make litigation enormously complex and burdensome, and would undermine reliance interests to an extraordinary degree).

And you're exactly right, the 10th is as you say. My intended point (which was at best implicit, sorry!) is that the existence of the 10th is yet further evidence, in case anyone needed it, that the intent was to limit what the federal government could do, and that the phrase "not delegated to the United States by the Constitution" in particular shows that they intended the main body to be a comprehensive rather than a suggestive description of federal powers. Is that any clearer?

That was what I understood you to be saying. And I was responding that I don't believe you can impose constitutional limits based on the unexpressed intent of its framers or ratifiers. First, there is an inherent Arrow impossibility theorem problem -- you can't really say that a collective group of people who were making compromises on multiple axes had any singular intent about anything, unless they all come to the table with identical preference-orderings. Second, there is the problem of authority -- how can unexpressed intent be law? For these reasons, if the constitution doesn't say X, I don't think you can use X as a constiutitonal basis for striking down statutes. So, even if I think a dual federalist system might be a good idea (a question on which I have some doubts, but remain ulitmately agnostic), I don't think it exists in the law of the constitution. So, until you amend the constitution to state otherwise, I think it guarantees the states only those powers which:

1. Aren't granted to the federal government, AND aren't resereved as rights to the people, OR

2. Are explicitly granted in the text of the constitution.

I think the PBA might possibly be an example of the first type of exclusive state powers, although not for the reasons you've suggested, and not under the court's current jurisprudence. But it definitely is not in the second category.
11.12.2006 4:26pm
Gaius Obvious (mail):
For these reasons, if the constitution doesn't say X, I don't think you can use X as a constiutitonal basis for striking down statutes.

Not even in the "penumbras and emanations"?
11.12.2006 5:42pm
marghlar:
Not even in the "penumbras and emanations"?

No.
11.12.2006 5:43pm
Kevin Murphy:
The Mann Act, and particularly ATHANASAW v. U S, 227 U.S. 326 (1913) seems to let Congress regulate any interstate movement for "immoral purposes" which might well include partial-birth abortion. Even though the Act probably doesn't apply to the same things (e.g. sex) as it did, it's never been found unconstitutional in mechanism.
11.12.2006 7:08pm
cac (mail):
"General Clement"?

Same thought occurred to me and then I realised he was presumably either the Attorney General or Solicitor General.

But what's wrong with Mr Clement (or Ms - I have no idea what sex he or she is).

As an outside, it's one of the more curious aspects of american life, the conflation of titles of office with forms of address. Down Under, the only people who attach an occuptional title to their name are the traditional exceptions such as doctors and military types.

Alternatively, you just use their job title without any other adornment - Prime Minister, Minister or Attorney General.
11.12.2006 9:33pm
k parker (mail):
Marghlar,

Some call me 'Kirk'. There is, indeed, a registered user here by the name of 'Kirk Parker' and I suspect it's me, but I don't know the password and the password reminder doesn't get mailed to any email account of mine.

Regarding this, I'm fairly sure I'm not following you:
I think it guarantees the states only those powers which: 1. Aren't granted to the federal government

How is that any different from saying that the fedgov only is granted explicit powers?
11.12.2006 9:39pm
marghlar:
How is that any different from saying that the fedgov only is granted explicit powers?

It's not (or at least, it doesn't contradict that other truth about our system).

So, it goes like this:

Fed govt. has set of explicit powers A, minus reserved rights B, = T (total fed power).

States are only guaranteed X (set of all possible state powers) - A - B + C (explicitly granted state powers) = S (total state power guaranteed by constitution).

This means that states can't have any guaranteed constitutional powers that would contradict explicitly granted federal powers, like commerce, because their own guarantee of power is defined by the residuum left over after federal power is subtracted from their hypothetical set of possible power.

This means that the one way you can't analyze a federalism question is to ask, "Is this a state power, so that it can't be a federal power?" It never works that way -- you always have to resolve the federal power question first.
11.12.2006 10:02pm
k parker (mail):
This means that the one way you can't analyze a federalism question is to ask, "Is this a state power, so that it can't be a federal power?"

Was I or anyone else here saying this? I certainly didn't intend to. My beef (along with Justice Thomas) is with the ultra-expansive view of the commerce clause.
11.13.2006 2:52am
marghlar:
Well, I was assuming that your reference to the 10th Amendment put you into a familiar camp of argument - that, along with CJ Rehnquist, you were urging a "dual federalism" interpretation of the Tenth, that meant that states had affirmatively guaranteed powers that could act as substantive limits on federal powers, beyond those limits stated in the text of the constitution. Hence, he reasoned that if federal powers were too police-powerish, they were invalid for that reason. By referring to what the Framer's "intended" the Tenth to mean, and given the former content of your arguments (that the Tenth was intended to be a substantive limit on federal power), I took you to be making that argument.

If you were not, I apologize for mischaracterizing your views.
11.13.2006 11:20am
k parker (mail):
No, my reference to "intent" and the 10th was supposed to mean this: since they went to the trouble to write something that said, "everything else not specifically dealt with here is left to the states or the people", they obviously thought there was an "everything else" to so leave.

Is that clearer?
11.13.2006 12:18pm
k parker (mail):
Oh, and as far as Rehnquist and dual federalism goes, I'm neither a lawyer nor a legal scholar, I don't immediately recall his arguments, and maybe I'm not using the terminology correctly in this regard.

But disclaimers aside, let me give you my interested-layman's point of view. When you ask if the states [or the people] have "affirmatively guaranteed powers", my response is, "Of course they do." What they don't have is enumerated powers, but I don't see why that's a problem. The federal government has a clearly defined and enumerated closed set of powers, and the-states-and-the-people retain all others. How is this not "substantive", except maybe in a technical legal sense?
11.13.2006 1:09pm
marghlar:
At this point, I think we are basically quibbling over terminology.

No, my reference to "intent" and the 10th was supposed to mean this: since they went to the trouble to write something that said, "everything else not specifically dealt with here is left to the states or the people", they obviously thought there was an "everything else" to so leave.

Sure, they probably thought that, but what they thought doesn't control, it is what they enacted that controls. So, if they defined federal powers so as to cover literally everything (I don't think that they did, but assume so for the sake of argument), then by definition, the 10th Amendment would guarantee no powers at all to the states. This is not the case, as the text of Article I does not give the federal government all possible powers, but it shows the difference between the outcomes of an intentionalist analysis and a textualist analysis.

When you ask if the states [or the people] have "affirmatively guaranteed powers", my response is, "Of course they do." What they don't have is enumerated powers, but I don't see why that's a problem. The federal government has a clearly defined and enumerated closed set of powers, and the-states-and-the-people retain all others. How is this not "substantive", except maybe in a technical legal sense?

Again, at this point it's about terminology. Rehnquist argued that the constituiton guarantees certain powers to the states in such a way that they curtailed the powers granted to Congress in Article I. This is what I thought you were asserting, and that's why the difference between an explicit guarantee of listed powers and a guarantee of residual powers is important. You have to ask first, Is this a power given to Congress? Only then can you decide if it is guaranteed to the states. This means that you can't read the 10th amendment as a limit on the scope of federal power, except as a clarification that Congress can't tell the states that they can't regulate things that Congress lacks the power to regulate.
11.13.2006 2:01pm