Paul Finkelman's reply to Carl M. Dozier with previous messages and
electronic noise deleted:
"Enumerated" means listed (or even numbered). There are no rights
"enumerated" in the 10th Amendment or the 9th. That much is clear.
Madison did not want to list rights in these Amendments because he knew
he could not "enumerate" all of them. In fact, Madison opposed a Bill of
Rights because it was impossible to "enumerate" all the rights you would
want to protect. Hence the 9th and to a lesser extent, the 10th,
Amendment.
Mr. Dozier is simply wrong, by any measure (historical, linguistic,
originalist) measure of the Constitution that the 10th "enumerates"
anything. It clearly does not.
More interesting, is the notion that there is a fixed boundary between
the state and federal government. Consider the creation of West Point,
Annapolis, or the whole branch of the services called "the Air Force."
The Constitution gives Congress the powe to create an army and a navy
and to regulate officers in the state militias. There is no explicit
power to create a college to train officers. Are the service academies
unconstitutional because there is no explicit power to create
institutions of higher education (which up until that time had been
entirely done by private organizations, churches, or the states. You
might argue that Congress could not create the service academies, but
must rely on the states to train offices who could then be called into
national service. Or, you could argue that the power to create and army
implies the power to train officers.
These is no explicit constitutional power to create a separate military
branch called the air force. Does that mean Congress could not do it,
and that the old "Army Air Corps" should have remained? Or that the
states should have been free to create air forces as they wished?
One more simple example: There is no explicit constitutional power to
regulate the environment. Mr. Dozier would say that this should be left
to the states; which means, that Maryland or North Carolina would be
free to have a dirty power plant even if the wind brought all the
pollution into Virginia. Or Maryland could dump dioxins into the
Chesapeake and when they floated over to Virginia, well, too bad, so
sad, only the states can regulate this.
Anyone want to live in that environment?
Paul Finkelman
President William McKinley Distinguished Professor of Law Albany Law
School 80 New Scotland Avenue Albany, NY 12208
518-445-3386 (p)
518-445-3363 (f)
[log in to unmask]
www.paulfinkelman.com <outbind://5/www.paulfinkelman.com>
On Tue, 6/2/09, [log in to unmask] <[log in to unmask]> wrote:
The Rights of the States was clearly enumerated by the 10th Amendment;
all powers not enumerated in the Constitution are reserved to the People
and States. The Federal government has usurped the rights of the people
and states more times than we can count since the end of the Civil War.
The states need to reassert "THEIR" rights. My dogeared copy of the
Constitution seems quite clear on the rights of states; maybe not the
right of session (which I would not want to see) but the right to govern
the people at the local level. Let the Federal government DO what the
Constitution promulgated and leave the everything else to the people and
states. The Federal Government can not even protect our economy,
ideology or borders, their primary enumerated function.
Carl M. Dozier, LTC, AUS, Ret GOLD STAR FATHER Proud father of SSG
Jonathan Kilian Dozier KIA Sinsil, Iraq 01-09-08...
Hammer Company (Scouts) 3rd Squadron/2nd Stryker Cavalry Regiment
"SCOUTS OUT!"
816 Weatherby Court
Chesapeake, Virginia 23322-3481
"Illegitimus non Carborundum"
"Life is tough...it's tougher if you're stupid." John Wayne
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