The Ninth Amendment

[mrjurrs]

That is where I rely on the knowledge of people like you.

In my mind, the coercion was not aimed at AZ, but at the Scottsdale Public School District.

The pushback was by parents on certain books.

So, it wasn't the states.....

It seems like the individual parents were cut out of the discussion (the school district caved and challenged the parents to replace the board....but shut up in the meantime.....there was only one replacement in the next several years).

And the students (of which I was one) was required to use this book over the objection of my mother and other parents.

Their complaints had to do with what they considered to be sexually inappropriate material.

I suppose my mother could have pulled me from school (but there were not many options back then).

I was just wondering how this is viewed in terms of our discussion.

My mother paid both local and federal taxes which were used to fund the schools.....wasn't going to get those back.

It would seem she would have a right to have a say in what she wanted her son taught. And a right to exclude things that were beyond what she considered appropriate.

States can do whatever they want with their educational programs (assuming they remain constitutional) when they stop taking money for education from the federal government. That won't happen.

 

[HikerGuy83]

States can do whatever they want with their educational programs (assuming they remain constitutional) when they stop taking money for education from the federal government. That won't happen.

Correct.

Because the money being extracted from the state will still be extracted.

Regardless of whether or not they get it back.

Which, of course, is wrong.

 

[mrjurrs]

Correct.

Because the money being extracted from the state will still be extracted.

Regardless of whether or not they get it back.

Which, of course, is wrong.

? You mean the state would have to pay for the program? Of course they would, that's why it will never happen. Why is that wrong?

 

[HikerGuy83]

? You mean the state would have to pay for the program? Of course they would, that's why it will never happen. Why is that wrong?

Federal taxes are collected from the people of the state that are then returned by the fed to the states (i.e. they are giving them back their money).

Only with strings attached and oversight (which is really spelled blindness).

If the states opt out of federal money.

The fed still collects money from the people of the state for schools...which isn't returned.

That is wrong.

The fed should simply get out of the education business altogether.

 

[mrjurrs]

Federal taxes are collected from the people of the state that are then returned by the fed to the states (i.e. they are giving them back their money).

Only with strings attached and oversight (which is really spelled blindness).

If the states opt out of federal money.

The fed still collects money from the people of the state for schools...which isn't returned.

That is wrong.

The fed should simply get out of the education business altogether.

Right, like Brown v Board of Education. It's not wrong, it's a choice. Do you think Californians get a choice about helping to fund low income red states?

 

[HikerGuy83]

Right, like Brown v Board of Education. It's not wrong, it's a choice. Do you think Californians get a choice about helping to fund low income red states?

You'll need to further explain you post.

Or why what California does is germane to the discussion.

 

[mrjurrs]

You'll need to further explain you post.

Or why what California does is germane to the discussion.

CA collects more in Federal taxes than is returned to CA. No difference between that and states choosing not to participate in Federal funding.

Brown required the federal government to directly intervene in local school decisions.

 

[Rich2018]

The less flexible a Constitution is, the more apt it is to break - usually in the direction of authoritarianism.

OK, give me an example of such an inflexible constitution, that "broke" and became a dictatorship because of its inflexibility.

How else do you think France is now on the 5th Republic? And let's not forget, those 5 French Republics aren't laid out consecutively.... there were authoritarian episodes between them... The 1st broke and led to Napoleon and the Bourbon restoration. Then there was the 2nd Republic, and that broke and led to the 2nd Empire of Napoleon III. Then there was the 3rd Republic, which essentially rotted from within under Hitler kicked it over... and that led to the Vichy regime. After the war, there was the 4th Republic, which was probably the least flexible of all.... so inflexible that the governments of the day couldn't actually govern. And when that one fell in 1958, de Gaulle could have easily become a dictator himself.... just like George Washington could have become one. But, like George Washington, he chose instead to make the Presidency a reflection of his beliefs instead of himself... and gave France a constitution flexible enough to respond to changing conditions.

The French Republics didn't fail because of an inflexible constitution:

The 1st Republic was hit by mass poverty and food riots, it descended into chaos and it was killed off by Napoleon - nothing to do with how its constitution was written.
The 2nd Republic was killed off by Napoleon III in a "coup d'etat" - again nothing to do with the wording of any constitution
The 3rd Republic was killed off by the Nazi invasion of 1940
The 4th Republic was killed off chiefly by France's disastrous attempts to hold on to its colonies in Vietnam and Algeria, in the post war period. Defeats in both theaters saw support for the French government collapse

And no, de Gaulle could not have easily become a dictator. Even if de Gaulle had become a dictator, France would have been ostracized by the international community like Franco's Spain was, kicked out of the UN (and the loss of its precious Security Council seat) and never have been allowed to be a founder of what was to become the EU. West Germany would never have accepted a dictatorial France in that role.

The fundamental lesson here is that there is, in any nation, a balance that must be struck between security and freedom. The more you have of one, the less you tend to have of the other. That same balance is reflected between order and chaos.

Why ?
What is the contradiction between the two ?
Why is too much freedom a threat to security ?

 

[HikerGuy83]

CA collects more in Federal taxes than is returned to CA. No difference between that and states choosing not to participate in Federal funding.

Brown required the federal government to directly intervene in local school decisions.

Yes, Brown was decided by the Earl Warren Court. No surprise they blew past the constitution.

CA should be asking some questions. What can the fed do that they can't. Simple wealth redistribution.

I currently live in N.M., a blue state that lives off of the Fed. If funds were cut off, the entire state would be living, in large part, off of the oil and gas revenues from the southeast part of the state. Point being that even within a state, things are not equal.

 

[mrjurrs]

Yes, Brown was decided by the Earl Warren Court. No surprise they blew past the constitution.

CA should be asking some questions. What can the fed do that they can't. Simple wealth redistribution.

I currently live in N.M., a blue state that lives off of the Fed. If funds were cut off, the entire state would be living, in large part, off of the oil and gas revenues from the southeast part of the state. Point being that even within a state, things are not equal.

Blew past the Constitution? This should be good. Since it hasn't been challenged in nearly 70 years, where did they miss? CA recognizes that as an integral part of the Union, we provide for others that are less well off. It's part of the ethos of CA.

 

[HikerGuy83]

Blew past the Constitution? This should be good. Since it hasn't been challenged in nearly 70 years, where did they miss? CA recognizes that as an integral part of the Union, we provide for others that are less well off. It's part of the ethos of CA.

Hardly an ethos.

I lived there for six years and watched the schools turn to crap.

 

[VanceMack]

Seems pretty cut and dried. The intent of the 9th was to ensure that the limits of government power WERE constrained to what is written and given TO the government, and not the other way around. The government doesnt get to just assume authority on anything that isnt specifically mentioned as a citizens right.

tragically...the government abuses the 14th to pretty much make everything fit agendas.

 

[Rich2018]

Seems pretty cut and dried. The intent of the 9th was to ensure that the limits of government power WERE constrained to what is written and given TO the government, and not the other way around. The government doesnt get to just assume authority on anything that isnt specifically mentioned as a citizens right.

tragically...the government abuses the 14th to pretty much make everything fit agendas.

An idiotic amendment, just like the tenth.

How could men 250 years ago, forsee the laws that a federal government might need to pass to govern the country ?

 

[Willie Orwontee]

In his paper (cited in post #84), Kurt T. Lash states that many think the ninth was Madison's idea.

In fact, he states, just like the 10th, this is a response to the concern of state assemblies that the Constitution did not contain enough limitations on Federal Power.

He states Madison wanted to avoid a second national convention that might radically alter the proposed national government. He then cites a paper that I have printed but not read.

The philosophy and impetus for the 9th was certainly from Madison's hand (and mind).

The 9th (and 10th) are nothing but Federalist's argument against adding a bill of rights to the Constitution, codified as rules of constitutional interpretation.

Near the end of his speech introducing the proposed amendments to Congress, Madison said:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."​

Madison's fourth resolution contained 10 proposed amendments, many which would become among the Bill of Rights (note that Madison proposed these provisions be inserted in the body of the Constitution, incorporated in it):

"Fourthly, That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:​

​

[ . . . ] ​

​

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."​

The 9th was not understood to protect substantive rights until Harlan's dissent in Poe v Ullman was cited in Griswold, to elevate the 9thA to prop up the legal contrivance created in Griswold (penumbral rights theory).

.

 

[NWRatCon]

Federal taxes are collected from the people of the state that are then returned by the fed to the states (i.e. they are giving them back their money).

Only with strings attached and oversight (which is really spelled blindness).

If the states opt out of federal money.

The fed still collects money from the people of the state for schools...which isn't returned.

That is wrong.

The fed should simply get out of the education business altogether.

That's not at all how it works.

The Constitution, Article I, Section 8 gives Congress the power to "lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States." Congress then spends money in accordance with the powers given to it by the Constitution. Education is within the General Welfare authority of Congress, and has been deemed appropriate under the Commerce Clause as well. There has been a Department of Education since 1868, although its organization and administration has changed numerous times during its existence.

Moreover, the 14th Amendment requires that the laws be applied equally. The Department lays out its responsibilities this way: "The U.S. Department of Education is the agency of the federal government that establishes policy for, administers and coordinates most federal assistance to education. It assists the president in executing his education policies for the nation and in implementing laws enacted by Congress. The Department's mission is to serve America's students-to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access." If a State provides for education (and all of them do), it must provide that education equally (Goss v. Lopez).

I think it's important, in this context, to distinguish between what is required and and what is permitted. The federal government is not required to provide for education, but it is permitted to do so (and not prohibited from doing so). Among the justifications for that are the general welfare of its citizenry, and competitiveness in the world economy.

 

[Rich2018]

I think it's important, in this context, to distinguish between what is required and and what is permitted. The federal government is not required to provide for education, but it is permitted to do so (and not prohibited from doing so). Among the justifications for that are the general welfare of its citizenry, and competitiveness in the world economy.

The general welfare clause, could be used as justification, for Congress to pass any law, on any issue.

 

[Willie Orwontee]

The general welfare clause, could be used as justification, for Congress to pass any law, on any issue.

A constitutionally incoherent and laughable "justification" perhaps . . .

For what purpose it is presented is not readily apparent, other than to usurp, which is rejected.

 

[Rich2018]

A constitutionally incoherent and laughable "justification" perhaps . . .

In your opinion.

For what purpose it is presented is not readily apparent, other than to usurp, which is rejected.

IDK, governing the country ?

 

[HikerGuy83]

A constitutionally incoherent and laughable "justification" perhaps . . .

For what purpose it is presented is not readily apparent, other than to usurp, which is rejected.

Agreed.

There are very few who don't understand the place of the "General Welfare" clause in the Constitution.

It was presented as a clear explanation that congress has full power to do what it feels is necessary to fulfill it's duty as outlined in the Constitution.

This means the enumerated powers.

Unenumerated powers are beyond them.

In other words:

Congress has the power to "Coin money". That is spelled out.

What isn't spelled out is that they can build mints to do so.

But, I doubt anyone disagrees with their actions to do so.

To coin money you need an apparatus and the founders knew this.

Nowhere is congress authorized to have federal parks.

This is from an article:

* The Property Clause gives Congress unconditional power to dispose of property and authority to regulate what is already held. It does not mention a power to acquire.

* Under the Treaty Clause (II-2-2; see also Article VI), the federal government may acquire land outside state boundaries. As long as the area is governed as a territory, the federal government may retain any land it deems best.

* As for acreage (“other Property”) within state boundaries: Under the Necessary and Proper Clause, the federal government may acquire and retain land necessary for carrying out its enumerated powers. This includes parcels for military bases, post offices, buildings to house federal employees undertaking enumerated functions, and the like. It is not necessary to form federal enclaves for these purposes.

* But within state boundaries the Constitution grants no authority to retain acreage for unenumerated purposes, such as land for grazing, mineral development, agriculture, forests, or parks.

* Once a state is created and is thereby no longer a territory, the federal government has a duty to dispose of tracts not used for enumerated purposes.

 

[NWRatCon]

Agreed.

There are very few who don't understand the place of the "General Welfare" clause in the Constitution.

It was presented as a clear explanation that congress has full power to do what it feels is necessary to fulfill it's duty as outlined in the Constitution.

This means the enumerated powers.

Unenumerated powers are beyond them.

In other words:

Congress has the power to "Coin money". That is spelled out.

What isn't spelled out is that they can build mints to do so.

But, I doubt anyone disagrees with their actions to do so.

To coin money you need an apparatus and the founders knew this.

Nowhere is congress authorized to have federal parks.

This is from an article:

* The Property Clause gives Congress unconditional power to dispose of property and authority to regulate what is already held. It does not mention a power to acquire.

* Under the Treaty Clause (II-2-2; see also Article VI), the federal government may acquire land outside state boundaries. As long as the area is governed as a territory, the federal government may retain any land it deems best.

* As for acreage (“other Property”) within state boundaries: Under the Necessary and Proper Clause, the federal government may acquire and retain land necessary for carrying out its enumerated powers. This includes parcels for military bases, post offices, buildings to house federal employees undertaking enumerated functions, and the like. It is not necessary to form federal enclaves for these purposes.

* But within state boundaries the Constitution grants no authority to retain acreage for unenumerated purposes, such as land for grazing, mineral development, agriculture, forests, or parks.

* Once a state is created and is thereby no longer a territory, the federal government has a duty to dispose of tracts not used for enumerated purposes.

Sorry, but you're wrong. Completely and utterly. You need better sources. Seriously.

There is a faction of conservative theorists who wish to promote that fiction, but it had been rejected over 200 years ago.

 

[Cordelier]

From Justice Owen Roberts' opinion in US v. Butler, 297 US 1, 16 (1936):

"The general welfare clause should be construed broadly to include anything conducive to the national welfare; it is not limited by the subsequently enumerated powers. Congress may tax (and appropriate) in order to promote the national welfare by means which may not be within the scope of the other Congressional powers. That this, commonly known as the Hamiltonian theory, is correct, is shown by the plain language of the clause; by the circumstances surrounding its adoption; by the opinion of most of those who participated in the early execution of the Constitution; by the opinion of later authorities; and by long-continued practical construction."

 

[NWRatCon]

The general welfare clause, could be used as justification, for Congress to pass any law, on any issue.

There are legitimate limitations, but they're not as robust or restricting as many of our commentators posit. The "general welfare" is the start of the analysis, not the end. Congress needs to have an authorized basis for its action - its authority. That may, indeed, include the "General Welfare" - as broad an authority as "national defense" or "interstate commerce" - or something more specific. (Article I, section 8, is not the only source of congressional lawmaking authority, as some claim. For example, congressional authority over national elections is in Article I, Section 4, Clause 1: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.")

Then, however, it is necessary to articulate how its program will meet that goal. It must have at least a rational basis for choosing that methodology. If that process impinges upon a recognized right (say, due process), then a court will balance the government interest against the individual interest. If it is a fundamental right, then additional limitations may apply, requiring the government to use the least intrusive means practicable to reach its goal. If it is a compelling government interest (say, a public emergency), on the other hand, less stringent requirements may apply.

 

[Rich2018]

There are legitimate limitations, but they're not as robust or restricting as many of our commentators posit. The "general welfare" is the start of the analysis, not the end. Congress needs to have an authorized basis for its action - its authority. That may, indeed, include the "General Welfare" - as broad an authority as "national defense" or "interstate commerce" - or something more specific. (Article I, section 8, is not the only source of congressional lawmaking authority, as some claim. For example, congressional authority over national elections is in Article I, Section 4, Clause 1: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.")

Then, however, it is necessary to articulate how its program will meet that goal. It must have at least a rational basis for choosing that methodology. If that process impinges upon a recognized right (say, due process), then a court will balance the government interest against the individual interest. If it is a fundamental right, then additional limitations may apply, requiring the government to use the least intrusive means practicable to reach its goal. If it is a compelling government interest (say, a public emergency), on the other hand, less stringent requirements may apply.

What was the Congressional Authority for the clean air act (1970) ?

The answer is the vague responsibilities and often unclearly defined powers of the Constitution have been very liberally interpreted over the years.

 

[NWRatCon]

What was the Congressional Authority for the clean air act (1970) ?

The answer is the vague responsibilities and often unclearly defined powers of the Constitution have been very liberally interpreted over the years.

This is true. I haven't actually pulled up the clean air act, but I'll do so. That's the objections I continually have to related assertions of "That's not what the Constitution authorized". The Supreme Court rejected the minimalist approach during the lifetime of the Founders, and they've rarely looked back. Even so-called "strict constructionists" like Jefferson and Madison didn't behave that way while in office.

The Constitution provides a framework for governance, and it is intended to be functional. The goal of too many complainers is, they don't want a functional government. (It's really why they hate Democrats. Democrats get things done.) Congress is given broad authority, and the ability to pass legislation to accomplish it. Yes, legislation has to be within that authority, but it is mostly Congress that gets to decide if it is.

 

[Cordelier]

Where it comes to the General Welfare clause, all you need to remember is this:

Hamilton > Madison