Quote:
Originally Posted by larrymcg421
Chief Justice John Marshall has a somewhat different view, in the 1819 case McCulloch v. Maryland....
"But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described."
And supports that by comparing the texts to the articles of confederation, noting that the word 'expressly' was not in the text of the 10th Amendment.
"The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articlesof confederation, and probably omitted it, to avoid those embarrassments."
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I don't think necessarily the intention was that "everything granted shall be expressly and minutely described", but do you honestly think the commerce clause was intended to literally cover EVERYTHING (with what, 1 exception over the last 60 years?) Why didn't the framers just clearly give the federal government unlimited power, if that was the intention?
Even United States v. Morrison and United States v. Lopez were 5-4 votes The liberal justices wanted the Violence Against Women Act to apply to the commerce clause simply because that was desirable legislation. But anyway, I think it's clear that liberal appellate justices would literally NEVER strike down federal legislation because it didn't fall under the commerce clause. They would interpret it to apply to EVERYTHING. So what's the point? Has a liberal appellate judge (state or federal) ever struck down "just" legislation, consistent with liberal ideals, for constitutional reasons? And conservative judges can be just as flip floppy, I'm seeing that now in Idaho. The government is supposed to, by state constitution, maximize the revenue from these leased lakefront properties. Instead, they've allowed politically connected people to use the lots, and build million-dollar cabins on them, and lease them for well below market rate, and use them forever. Their reason for not re-doing the leases for market value - it would be unfair to people who had these lots for generations. Whatever. The same people who want to be strict constitionalists when it comes to abortion, or other things they don't like, suddenly develop a broad, expansive view of the constitution when it suits their purpose. The constitution says maximize revenue. That's what they're supposed to do, regardless of anyone's feelings (or political connections).
The appellate courts have completely abandoned their roles. We have a legislature, and then a super-legislature (the courts). Except the super-legislature is required to talk in legal code, in terms of constitutional interpretations, etc. But they're just voting on these bills, like a legislator would.
And what exactly does the 10th amendment mean?