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A Constitutional Question on the 9th and 10th Amendments

Saturday, October 22, 2016 5:30
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I posed the following question on Facebook: Do you think the 9th Amendment is more important than the 10th Amendment?

9th Amendment:

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

What are you thoughts?

 David DeGerolamo

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Comments

Brenda Martin
Brenda Martin I think each and everyone is very important.

Steve Baumgartner
Steve Baumgartner Not sure what your point is. 9: The people have inalienable rights, even though not specifically spelled out in the Constitution. Those rights remain inherently intact despite other rights that are spelled out.. 10: The powers not assigned to the fedSee More

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David DeGerolamo
David DeGerolamo Which are more important: the right of the people or the rights of the states? If you need me to give you another hint, let me know.

David DeGerolamo
David DeGerolamo So then the 9th is more important. Let’s suppose that they were equal for the sake of argument. Now throw in the Supremacy Clause.

Steve Baumgartner
Steve Baumgartner Fed supersedes state in the event of conflict. The point of your exercise is…?

David DeGerolamo
David DeGerolamo Supremacy Clause nullifies the 10th amendment. The 9th amendment is more important as one point. The second point is that people have no clue what the 9th amendment states or its importance in the future.

Steve Baumgartner
Steve Baumgartner If we are trying to legally justify the rights of the people superseding the power of the federal government, it is inherent in the document and establishment of the government. The Constitution was established to LIMIT the powers of the government over the people and the infringement of the inalienable rights the people possess.

Glen Bradley

Glen Bradley The Supremacy Clause neither nullifies the 10th nor does it claim that the fed supersedes the states in the event of conflict.

The Supremacy Clause says that any laws which follow from the Constitution are supreme.See More

Steve Baumgartner

Steve Baumgartner A clause in Article VI of the U.S. Constitution that declares federal laws to have jurisdictional authority over state laws in the event there is conflict between laws established by two governing bodies. http://www.businessdictionary.com/…/supremacy-clause.html

Glen Bradley
Glen Bradley Well then BD is wrong, because that’s simply not what Article VI says.

Glen Bradley

Glen Bradley The text itself:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Glen Bradley
Glen Bradley Nothing whatever about “conflict”

Glen Bradley
Glen Bradley The Supremacy Clause says that the Constitution and laws that SHALL BE MADE IN PURSUANCE of the Constitution, are supreme. Full stop.

Steve Baumgartner
Steve Baumgartner In order to be supreme, there must be a contest or conflict to be supreme over… thus laws made by the state.

Glen Bradley
Glen Bradley If a law is not pursuant to the Constitution, then it is not supreme, no matter how much conflict there may be.

Glen Bradley
Glen Bradley If a law is pursuant to the Constitution, then it is supreme, even if there is no conflict at all.

Steve Baumgartner
Steve Baumgartner Then the critical issue becomes the determination of what is specifically “pursuant to the Constitution”.

Steve Baumgartner
Steve Baumgartner Laws made by the Fed that are not designated powers by the Constitution to the Fed and usurp states rights are not supreme.

Glen Bradley
Glen Bradley Yes. Exactly. If something follows from the text of the Constitution, then it is supreme. If something does NOT follow from the text of the Constitution, then it is NOT supreme. That’s what Article VI says, and if you really examine it, the 10th Amendment is basically saying the same thing but in different language.

Steve Baumgartner
Steve Baumgartner So… now the critical issue is WHAT specific powers are designated to the federal government and what powers are not.

Steve Baumgartner
Steve Baumgartner This is where the Supreme Court has perverted the meaning of the Constitution and extended the reach of the federal government in legislation.

David DeGerolamo
David DeGerolamo Don’t forget executive orders and federal regulations that bypass the Constitution.

Glen Bradley

Glen Bradley The entire doctrine of the 10th Amendment can be pulled from Article VI. This is one reason why in recent years (given the abject terror those in power in the Legislature have towards the 10th Amendment) I have started saying “Article VI Pursuance” rather than “Tenth Amendment Delegation.”

It’s actually pretty easy to sort out what powers (and prohibitions!) belong to the fedgov. The vast majority of such powers are listed in Article 1 Sections 8 and 10.

There are maybe one or two powers found elsewhere, like the power to prosecute Treason, and then whatever new powers and prohibitions are found in the Amendments.

Steve Baumgartner
Steve Baumgartner David DeGerolamo Under what authority can Executive Powers and Federal Regulations be applied as pursuant to the Constitution?

Glen Bradley
Glen Bradley Aye, SCOTUS not only seems inept at even understanding the Constitution much less enforcing it, but the entire power of Judicial Review is not found in the Constitution in the first place, but was invented out of thin air by Justice Marshall in 1803 in Marbury v Madison.

Steve Baumgartner
Steve Baumgartner So the original authority of the SCOTUS is exactly what?

Glen Bradley
Glen Bradley Judging any disputes to which a State is party.

Glen Bradley

Glen Bradley Yes, States vs US one of the parties is a State, therefore SCOTUS has original jurisdiction.

Re: Regulation

If a law is passed that follows properly from the Constitution, and that law establishes regulatory authority, then that thing (whatever it is) may be regulated.

But there are a few things we need to address before that idea clarifies.

First, the government we have today bears only superficial resemblance to the Constitution — three branches, the basic processes — but 90%+ of what this government does is not authorized in the Constitution. Therefore to understand what ‘regulatory powers’ may be available to the fed, you first have to discard the current ‘vision’ of government.

Second, the concept of ‘regulation’ in and of itself has changed since 1789. Back when “a well regulated militia’ was written, regulations were not minor laws and prohibitions, they were guidelines intended to “make regular” the militia. ie the rifles should be of a certain caliber so as to make it easy for fedgov to provide ammo in the event of a war

Steve Baumgartner
Steve Baumgartner Big difference between standardization and official government regulation on business and industry.

Glen Bradley
Glen Bradley One thing is for certain: What we’ve got is not even remotely what the Framers intended. Now I have studied this extensively for many many years, but that does not mean that I am exactly right either. But while I may not be perfectly right on all points here, the reality on the ground is not even close to right at all.

Steve Baumgartner
Steve Baumgartner Because Congress (and the People) have allowed POTUS and SCOTUS to legislate without authority, we have established precedent and now we are plagued with it forever?

Glen Bradley

Glen Bradley That’s basically correct, but I like to think we can and will take it back one day. No precedent can rule forever. If I thought it was truly hopeless I’d have given up long ago lol.

What I *do* know, however, is the only way to take it back and ultimately prevail, is bottom up and not top down. We have to start with Municipal Boards, County Commissions, and State Legislatures.

POTUS and Congress will be basically useless at accomplishing these things until after we have secured the towns counties and states first.

Steve Baumgartner
Steve Baumgartner That actually sounds more achievable than top down.

Glen Bradley
Glen Bradley It has precedent. That’s how the liberals did it.

Steve Baumgartner
Steve Baumgartner And yet, when we had the advantage of the presidency and both houses of congress, the liberals still prevailed.

Glen Bradley

Glen Bradley They started in the 70’s with boards of education, moving up to municipals, counties, and states. Around the same basic timeframe when Republicans started taking over State Houses around the country, 2006-2010, is about the same time the liberals stopped focusing on locals and started focusing on the feds. The problem is their bottom-up strategy has left us with an entire majority population of progressive liberals, getting worse the younger you get.

Republicans in NC, however, when we won the Wake County Board of Education we didn’t dig in and get to work, our guys spit in everyones faces and used the board as a stepping stone to higher office. Now the voters are reluctant to give Republicans a try at the Board of Education again on account of we blew it last time.

If we were serious about making permanent lasting change, then we would go after the Boards of Education, and we wouldn’t treat the position as just a way to make a name for ourselves and run for higher office.

Honestly, it was the clown show that Reps made out of the Wake County Board of Education that led me to believe that the NC GOP powers that be weren’t really serious about making this happen.

Steve Baumgartner
Steve Baumgartner Republicans continue to be their own worst enemy. Good enough, never is with them, and they’d rather lose everything than compromise some things for a win. They would accept evil, believing it is short term, and betting on wishful long term recovery through backlash.

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