Our U.S. Constitution has some remarkable limitations on government power, like the one above.
Think of a specific right, or alleged right, upon which the un-Amended constitution is silent. Be specific and write it down. Here are some of my examples:
- Right to drive a motor vehicle at any speed I choose.
- Right to challenge a person who has insulted me to a duel.
- Right to own slaves.
- Right to be free and not owned.
- Right to control my bodily functions and terminate any that are undesired.
- Right to contraception.
- Right not to be shot at.
- Right to private property.
- Right to travel unimpeded across the land.
- Right to pass my property to my heirs undiluted.
- Right of a legal entity to engage in business or political activity unimpeded using funds raised from a large number of individuals.
- Right of a legal entity to own and control another legal entity.
Due to that word “OR” in the 10th Amendment, we’ve no guidance whether these rights are reserved to the people to the States.
Without that guidance, any State can usurp any of them by legislation, which requires only a simple majority of its legislative body, a rather small number of people. The Constitution gives nearly unlimited power to the states if this view is taken literally. We will explore it.
Some such as 1, 2, 7 are ordinary common law matters or are criminal matters, and regulation by civil law or the state are obviously necessary.
Items 3 and 4 were the subject of the Civil War.
5 is related to Roe v. Wade, recently overturned, and 6 to a right proposed to be overturned. Our point here is that these cases are not States vs. Federal rights issues. They are States vs. People’s rights, and whether the Federal government can tell the States not to take away rights.
8, 9 and 10 are tied up with the 5th Amendment
Travel is part of the “liberty” of which one cannot be deprived without due process. However, due process seems to be as simply as buying various choke points in the land and putting up no-trespassing signs.
Although Britain and other countries had stock trading companies, these are not provided for in our constitution. Law began to be enacted to address corporations from 1811, and initially they were for limited purpose such as manufacturing. As the popularity and size of corporations grew, several issues came up:
1873 – a New Jersey law broke the Camden & Amboy monopoly to enable the National Railroad Project.
1886 – the Supreme Court in Santa Clara County v. Southern Pacific Railroad Company, disallowed taxes that favored privately owned business over corporations. The summary of a law clerk (not an action of the court) asserted the decision extended the constitution’s “equal protection” clause to corporations. This is problematic because corporations are inherently dissimilar to individuals, having no feeling, desiring only profit, and not dying from natural causes, only from lack of attention to profit.
1898 – Delaware allowed corporations to own shares in other corporations and fully exercise control and voting rights over shares. This was essentially a way to get around the 1890 Sherman Anti-Trust Act. Corporations were now significantly more powerful than regular humans. Contrast this to the equal protection idea of 1886. Why should entities exempt from certain criminal legislation be “equal” in other respects? One could say certain rights of the people were appropriated by corporations, as when denied by states, corporate law found a way around the restrictions. Now we have four players:
- The People
- The Federal Government
- States, possibly unconstrained except by the list of Federal Government rights, and certain imposed processes (5th Amendment)
- Corporations, acquiring unique rights due to unique characteristics and unique legislation -one might say, the states took the rights and eventually deposited them with corporations.
The issue of corporations we will save for another day. The issue of the vagueness of the 10th Amendment has not been overlooked. See Interpretation: The Tenth Amendment | The National Constitution Center. ‘the Court has indeed found judicially-enforceable limits on the power of the federal government to regulate states (and their political subdivisions) directly. So it is now meaningful to speak of “Tenth Amendment doctrine.”’
Arguments about the Supreme Court frequently of two types:
- Usurpation of Congress’ legislative power
- Usurpation of States’ rights
It is the main purpose of this article to point out that #2 can be disingenuine, and really a cover for usurpation by the States of people’s rights, using the fog of the 10th Amendment.