The 10th Amendment, The States And The People Part 2
The Coming Storm
Class will now please come to order. Please rise, place your right hand over your heart as we recite the Pledge of Allegiance. Do they still do these things in our public schools? Maybe a teacher or two can tell us the answer and if not, explain why not. If you missed Part 1 of this series, you may want to go to my profile page and take a read as it lays the base for the rest of our discussions concerning the 10th Amendment The sheer volume of information at one's disposal boggles my mind as I begin to write again.
I know I scared some folks in the last session with the threat of a pop quiz. But this is splendid as all the seats in the classroom are occupied. Put your hand down, Little Johnny, the quiz is at the bottom of this Hub!
As the nation began to gel after becoming The United States of America, any real controversy concerning the 10th Amendment was minor until the advent of The Civil War. During the first half of the nineteenth century the federal government started pressuring the southern states, through various forms of legislation, concerning the issue of slavery. The underlying issue was economic in nature though that may be denied by some. The southern states, primarily agrarian in nature, were using slaves as indentured servants and a rather cheap source of labor. The northern states, where the nation's industrial base was populated, wanted to force the 11 southern states to either limit, or abandon totally, the practice.
Those eleven (11) eventually had enough of the powers in Washington DC trying to force their will upon them, a clear violation in their eyes of the 10th Amendment, and formally seceded from the union and formed their own Confederacy. This is not intended to be a re-fight of The Civil War, or who was right or wrong, but rather what resulted from having to fight that war and its effects on the 10th Amendment. The issue at the time was centered around slavery but the real issue was states' sovereignty - the right of local governments to enact laws and conduct the business of the people in their own respective states. It was also a war that established the supremacy of the federal government over the individual states regarding the dissolution of our nation.
The effect of the Civil War on the 10th Amendment altered the course of history, as wars are prone to do. It resulted in a de facto suspension of the 10th Amendment during the Reconstruction Era. Federal troops occupied all of the southern states, and the Civil War Amendments were required to be ratified by those states that had seceded,. Those amendments encompassed the abolition of slavery, gave voting rights to what we now know as African Americans and granted equal status to all races. Reconstruction, in effect, allowed the federal government to run many of the local matters formerly enjoyed by the southern states. What occurred during that period is not at all a model for democracy but believed to be necessary under the circumstances.
It took until 1883 for the 10th Amendment to start to reassert itself into being relevant. The invalidation by the US Supreme Court of The Civil Rights Act of 1875 was step one. That act served to criminalize racial discrimination in public accommodations. The SCOTUS of the time determined that the federal government had overstepped its bounds between it and the individual states. It violated a state's sovereignty in violation of the 10th Amendment. A further case in 1909, the White Slave Trade Act, was struck down by the Supreme Court as a violation of the 10th Amendment. That act prohibited the harboring of alien women with the intent of prostitution and again it was ruled that the federal authority had stepped outside its purview.
In 1918, the Supreme Court was again called upon to enforce the 10th Amendment. This involved the Keating-Owen Child Labor Act which prohibited the shipment of products between the states manufactured by children under the age of 14. The question of the constitutionality centered on whether the law violated the Commerce Clause, the 10th Amendment or the 5th Amendment. Maybe all of them? Precedent was being established along the way as these cases were decided over the years and judicial precedent is a cornerstone of our legal system. The court struck down that law using the following rationale.
Justice Day, speaking for the majority, cited two grounds for overturning the law. It ruled that under the commerce clause, production was not commerce. Congress had no constitutional authority to regulate a production process, That power was reserved to the states under the 10th Amendment. The majority opined that "the powers not expressly delegated to the national government are reserved to the states and to the people," basically what the 10th Amendment states. But there is a distinct difference in the wording. Justice Day inserted the word "expressly" into the statement. That altered the intent of the framers of the US Constitution. Why? The the framer's intentionally left the word "expressly" out foreseeing that they couldn't possibly address every power that would be needed in the future to run the government. The framers were indeed wise men who realized that over the course of history society would change with the times. In effect, that court altered the wording, ever so slightly, of the Constitution. But it reaffirmed that the states had those powers not reserved to the federal government and they had the authority to govern local matters.
Things went tootling along with Congress probably paying more attention to the US Constitution as they penned legislation until The Great Depression struck our economic well being. That event again caused the 10th Amendment to be turned upside down. The events surrounding its further erosion under the FDR administration will be the subject of our next refresher in this non-sanitized recount of American history. Bear in mind that as we go along, we will actually arrive at our destination point of "today" and the movement that is on by the individual states to reassert their rights under the 10th Amendment of the US Constitution.
I believe it is important to keep in mind that the individual states created the federal government and not the other way around. The tail should never wag the dog so to speak.
CYA next time. Class dismissed. God bless America and you and yours until we meet again
The Frog Prince