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  1. #31
    Senior Member lowtech redneck's Avatar
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    Quote Originally Posted by onemoretime View Post
    Fourteenth supersedes Tenth. Equal protection under the law means that all constitutional guarantees apply equally to the states. Tenth Amendment is null and void in that context.

    The purpose of federalism is to devolve power where it is not necessary or advisable for the Feds (post-Civil War). Power inherently comes from We The People, not from any government. If we decide through amendments that the Feds get more (14th particularly the enforcement through all appropriate legislation clause), then the Feds get more, regardless of what the Constitution originally said.

    A document written at the time where the entire nation was agrarian, as thoughtful and forward-thinking as it was, will not be perfectly applicable in an industrialized world. That's why we accept different means for interpretation (amendments, Supreme Court). The Common Law is the original supreme law of the land, and consequently, courts have a lot of power. Most legal scholars admit that the 10th was a truism in the first place - it was to be assumed by the nature of the document. The 14th fundamentally changed that. We The People said that states could not deny people rights.

    1.) Read the Tenth Amendment again, its only (validly) possible to overturn it, not supercede it, as its limitations on the national government apply only after the rest of the Constitution is considered.

    2.) The Constitution, not Common Law, is the supreme law of the land.

    3.) The 14th Amendment (or denying Constitutional rights, for that matter) has nothing to do with this debate in the first place-the national government is constitutionally empowered through that Amendment to protect rights enumerated in the Constitution, nothing else.

    As for the rest, check out the Souter Retirement thread in this section of the site for my opinion of the "living document" doctrine.

    Edit: The purpose of federalism hasn't changed post-Civil War, the enumerated powers of the national government were merely increased-"We the people" never voted on a Constitutional Amendment that nullified the tenth Amendment.
    Last edited by lowtech redneck; 07-13-2009 at 11:03 PM. Reason: self-evident

  2. #32
    Dreaming the life onemoretime's Avatar
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    Quote Originally Posted by lowtech redneck View Post
    1.) Read the Tenth Amendment again, its only (validly) possible to overturn it, not supercede it, as its limitations on the national government apply only after the rest of the Constitution is considered.

    2.) The Constitution, not Common Law, is the supreme law of the land.

    3.) The 14th Amendment (or denying Constitutional rights, for that matter) has nothing to do with this debate in the first place-the national government is constitutionally empowered through that Amendment to protect rights enumerated in the Constitution, nothing else.

    As for the rest, check out the Souter Retirement thread in this section of the site for my opinion of the "living document" doctrine.

    Edit: The purpose of federalism hasn't changed post-Civil War, the enumerated powers of the national government were merely increased-"We the people" never voted on a Constitutional Amendment that nullified the tenth Amendment.
    1. Amendments (as parts of the constitution) can be and are superseded by other amendments all the time. The 12th superseded the executive article. The 14th the 10th. The 16th the legislative article. The 17th the legislative article. The 19th the 15th. And so on and so forth.

    2. No, the Constitution is a modification of the Common Law as it existed at the time. The Constitution is used as a waypoint and a guidepost for where our current Common Law interpretation lies, but the Common Law has always been the supreme law of the land. It's why things such as our civil law do not need to be codified; literally thousands of years of precedent dating back to the Magna Carta define civil procedure. Our law has always been about interpretation; it's what makes it different than the Continental system.

    3. No, it's empowered to secure "equal protection under the law" and "due process" using "all appropriate legislation". That by far expands the role of the federal government. Meanwhile, other clauses such as regulating interstate commerce and general welfare expand equal protection into many areas of state government.

    4. Just because you personally do not like that interpretation of the Constitution does not make it invalid. It follows full legal rationale and logic, along with being confirmed by many years of precedent.

    Finally, yes we did - that's what the 14th does. Tenth says that enumerated powers and protections do not apply to the states. Fourteenth says yes they do. Tenth says that states can define the protection of the laws under their own discretion. Fourteenth says that equal protection of the laws must be maintained. Tenth says that states can follow their own procedure. Fourteenth says that states must follow due process under the law.

  3. #33
    Senior Member lowtech redneck's Avatar
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    Quote Originally Posted by onemoretime View Post
    1. Amendments (as parts of the constitution) can be and are superseded by other amendments all the time. The 12th superseded the executive article. The 14th the 10th. The 16th the legislative article. The 17th the legislative article. The 19th the 15th. And so on and so forth.

    2. No, the Constitution is a modification of the Common Law as it existed at the time. The Constitution is used as a waypoint and a guidepost for where our current Common Law interpretation lies, but the Common Law has always been the supreme law of the land. It's why things such as our civil law do not need to be codified; literally thousands of years of precedent dating back to the Magna Carta define civil procedure. Our law has always been about interpretation; it's what makes it different than the Continental system.

    3. No, it's empowered to secure "equal protection under the law" and "due process" using "all appropriate legislation". That by far expands the role of the federal government. Meanwhile, other clauses such as regulating interstate commerce and general welfare expand equal protection into many areas of state government.

    4. Just because you personally do not like that interpretation of the Constitution does not make it invalid. It follows full legal rationale and logic, along with being confirmed by many years of precedent.

    Finally, yes we did - that's what the 14th does. Tenth says that enumerated powers and protections do not apply to the states. Fourteenth says yes they do. Tenth says that states can define the protection of the laws under their own discretion. Fourteenth says that equal protection of the laws must be maintained. Tenth says that states can follow their own procedure. Fourteenth says that states must follow due process under the law.
    1.) Once again, the 10th Amendment was not nullified by the 14 Amendment-the enumerated powers of the national and state governments were altered, but the national government was not empowered to infringe upon remaining state perogatives.

    2.) The Constitution is Code Law-and under pure Common Law, there is no purpose to having a Constitution in the first place.

    3.) Once again, the tenth Amendment was not repealed-"all appropriate legislation" (as well as the Commerce Clause) are therefore subject to its limiting language-actions taken by the national government toward these ends must be narrowly focused and cannot legitimately go beyond the limitations imposed by the tenth Amendment. Also, the Preamble is simply a generalized statement of principles (which is effectively how advocates of the odious "living document" doctrine regard the Constitution) with no legal force behind it.

    4.) The "full legal rationale and logic" you refer to is nothing more than weak rationalizations combined with cynical and effectively unbounded sophistry.

    Finally, the Tenth Amendment did NOT say that enumerated powers and protections do not apply to the states, it says that all powers not explicitly granted to the national government are state perogatives-which is still the case.

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