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Comment by rdl | Hacker News Reader

There seems to be some political calculus where it makes sense to pass unconstitutional but popular laws, then let the courts strike them down. Frequently vs. the 1st, now against the 2nd, 4th, and 5th. Of course, the courts never really seem to rule for the 9th or 10th.

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I hope you're not suggesting they are doing this for the people. Because the people weren't even aware they introduced this provision in the NDAA 2012, so it's not like it would've scored them any brownie points with the "kill the muslims" crowd. They tried to do it in secret, but civil libertarians found out about it, and then some backlash started.

Now the House passed NDAA 2013 with the same provision as in 2012, and the Senate adopted an amendment that banned that "indefinite detention without trial" provision. But the negotiators for the two bills eliminated that at the last moment. So indefinite detention without trial is back. So now it's up to Obama to reject it, but I hope there are no illusions, like last year, that he will actually reject it. He won't.

I wonder if these senators are the kinds of people who believe that a cop would never lie on the stand.

Humans as a species are rather more credulous of others than warranted by the inherit limitations of our perception, cognition, and retention abilities, even before factoring in deliberate deception.

In short, I can believe that.

It's done for a variety of reasons -- ignorance, special interests, or pandering -- but the same enabler -- not caring so much about the constitutionality of the laws passed.

Congress should have a legal duty to uphold the constitution.

It doesn't work like that. The judiciary does that.

They actually do typically swear to support the constitution as part of their oath of office.

As we all know saying one thing and actually doing it are two totally different things. Sadly.

It would be interested to see what would happen if it was upheld that a sworn official who passes (or votes for) a law that is later deemed unconstitutional has to step down. I don't believe such a principle would ever be approved by official bodies, but it would certainly have an interesting effect, one way or another.

s/typically/always/

I agree with the grandparent. It's the same thing here in Germany: The parlament has passed many, many unconstitutional laws throughout the last decade. Courts invalidated them later.

There are two main issues:

1. Those laws set expectations to what is acceptable. Constitutional but extreme laws later pass as "moderate" in the opinion of the public. 2. Respect for the constitution gradually erodes. 2. Lots of energy is wasted, because EFF type of organizations need to go to court, collect evidence, testify, etc.

I'll also add, it punishes citizens with jail time or fines for not following unconstitutional laws until they are invalidated...which takes a long time, at least in the United States.

So the desired chilling effect occurs regardless. In fact, the goverment can (and does, sigh) play the game like this:

1. Pass an unconstitutional law and enforce it.

2. Wait years for the inevitable legal challenge to make its way to the Supreme Court, at which time it is invalidated.

3. Change the law slightly (minor variations in wording are sufficient), pass it, and enforce the law.

4. Go back to step 2.

The government can do this as long as it wants, without any problems (i.e. there's no fine for passing unconstitutional laws, and those who vote for them don't lose office, etc.).

In theory, doesn't the new interpretation effectively reduce (if not remove) the third branch? Without trials, where is judicial authority?

It doesn't work like that.

Yes, it does. Every Congresscritter takes an oath to uphold the Constitution, just like the President does.

Sounds like they're spamming knowingly unconstitutional provisions that have already been struck down, in an attempt to overwhelm the supreme court's finite capacity to enforce them.

Not sure if it's intentional, but yes, the effect seems to be a form of denial of service.

They tried to do it in secret, but civil libertarians found out about it, and then some backlash started.

No they didn't. Not putting out a press release doesn't mean you're trying to do stuff in secret. The reality is that most people just don't care much about the intended targets of this legislation.

The 9th amendment is merely interpretive guidance, and the 10th amendment is a tautology.

Also, what is happening with the NDAA is not Congress passing an unconstitutional law. It's Congress passing a law with a potentially unconstitutional interpretation, and both Congressional and Presidential guidance that such interpretation is not intended. Such guidance carries great weight in the court. It's a non-issue really.

The Tenth Amendment is only now interpreted as a tautology for political convenience. The text reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Just because it is now ignored by our government doesn't make it a tautology. It's still the law of the land; it's just being willfully misinterpreted.

That's incorrect. It's actually "only now" that the 10th amendment is being interpreted as an affirmative limitation on federal power. Historically, the 10th amendment was considered a mere truism. U.S. v. Darby (1941).

Conceptually, how the Constitution works is as follows. The states inherited the sovereignty and unlimited power of the British parliament. In aggreeing to the Constitution, the states delegated some of that power to the federal government, and agreed to refrain from the exercise of certain other powers. The clauses of the Constitution outline the powers delegated and prohibited. All the 10th amendment says is that anything that hasn't been delegated or prohibited hasn't been delegated or prohibited. Which is tautological.

The mere face of the text cannot support an interpretation that the 10th amendment does anything other than state the obvious. If a federal action is otherwise Constitutional, by virtue of falling into one of the delegations, then it is by definition something that has not been reserved to the state.

The Progressive movement's attempts to circumvent federalism date to the beginning of the 20th century, so you can hardly cite a 1941 case to defend your assertion. That was four years after FDR's court packing scheme and eight years after the formation of the National Recovery Administration.

As far as I can tell, you only see the Tenth Amendment as a tautology because you take for granted the makeup and principles of the American government. It was not at all a given at the time that the Federal government would leave sovereignity to the states and only exercise certain defined powers. For example, it has largely ceased to do so today, in violation of the Tenth Amendment.

All the 10th amendment says is that anything that hasn't been delegated or prohibited hasn't been delegated or prohibited. Which is tautological.

The States battled over the wording of each amendment. Many of the debate texts and the notes from the Founders are still available. How an attorney with the Internet at his fingertips could maintain a contrary delusion is really disturbing to me.

There were no throwaway/meaningless amendments in the Bill of Rights.

The Tenth Amendment means exactly what it says it means. The States barely allowed the Federal Government to have any power under the Articles of Confederation. The Constitution was an effort to allow more power to the Federal Government, but certainly not limitless arbitrary powers... thus the Ninth and Tenth Amendments.

The federal government would not have unlimited power without the 9th and 10th amendments--the rest of the Constitution explicitly limits it to the enumerated powers and those necessary and proper to carry out the enumerated powers. Which is precisely what makes the 10th amendment a tautology--it doesn't disallow any federal action that isn't otherwise disallowed.

Up until the middle of the Rhenquist court the 20th century saw an incredible expansion of the powers of the Federal government, mostly through Commerce. So, I can't really see how ignoring the 10th is a new thing.

It's ineffectual as a limit on Federal power because other clauses of the Constitution allow for any expansion or contraction of Federal power you could want, and what swings the argument is the legacy of precedent.

I don't see it as a new thing, depending on your definition of "new thing." I think the rolling back of federalism and the Tenth Amendment mostly dates to the beginning of the 20th century, with most of the heavy lifting handled by Wilson and FDR.

And although you are correct that prevailing interpretations of the Constitution allow for arbitrary Federal power, I don't believe that those interpretations are supported by the plain text nor by historical understanding of the Constitution.

The decline of federalism has much to do with the 13th/14th/15th amendments and the Civil War. Between the Civil War and the Civil Rights Era, it became apparent the states could not be trusted. Thus the 14th amendment gives the federal government explicit power to legislate against the states in certain circumstsances, and incorporation of the Bill of Rights through the 14th amendment has dramatically limited state power in other areas.

Most of the rest of the change in the balance of power has come from the changing nature of the economy. Both the plain text and the early interpretations of the Commerce Power (Gibbons v. Ogden in 1824, a mere 35 years after the ratification of the Constitution) support the modern exercise of federal power. What is different is that in 1789, most people lived on farms, grew their own food, made their own clothes, etc. Very little human activity came within the scope of the commerce power, as broad as that power was defined. Today, just this post involves an interstate electronic transaction. It's nearly impossible to buy clothes that weren't made in a foreign country. Etc. Nearly all activity comes within the scope of federal power because nearly all activity is commercial and either interstate or international in nature.

There is nothing in the 10th amendment to ignore.

Take the individual mandate, for example. It was fund to be outside the Commerce Power, but within the Taxing Power. What does the 10th amendment have to say about it? If you read the 10th amendment as saying "Congress shall not infringe on the traditional functions of the states to safeguard health, welfare, and morality" then you might say that the individual mandate violates the 10th amendment because healthcare is a traditionally state function. But that's not what the 10th amendment says. All it says is that action which falls outside the Constitutional delegates is unconstitutional. Well if the individual mandate is within the Taxing power, then it is within one of the Constitutional delegations, and is by definition outside the scope of the 10th amendment.

Basically, federal action can never violate the 10th amendment. Either an exercise of federal power is Constitutional under one of the delegations, or it is not supported by any delegation of federal power and is thus unconstitional for that reason.

Re: the expansion of federal power, it's popular but not necessarily accurate to say it has come at the expense of the Constitution. If you had asked the Framers whether a sale of a product in New York, manufactured and shipped from New Jersey, using a bank transaction with a bank and a payment processor located in San Francisco should fall under the purview of the Commerce Power, they probably would have said "yes, that's interstate commerce." Yet, that's what happens when I go downstairs and buy a Snickers bar at the vending machine with my credit card. There is disagreement on this subject, but in my opinion the expansion of federal power hasn't come at the expense of the Constitution, but has come because much more human activity has come within the scope of federal power as it was already defined.

But the only reason that Constitutional justification is even required for the individual mandate is that we have a Tenth Amendment. Again, you only see the Tenth Amendment as a tautology because you take it for granted. There is no guarantee or convention that nations govern themselves this way. In fact, most don't. (Including America, in practice.)

You're conflating the 10th amendment with the general principle that the federal government must trace its actions to enumerated powers. That principle does not come from the 10th amendment, which wasn't even ratified until two years after the Constitution.

Historically governments where not limited in there power, it was just a question of which parts of government had which powers.

If the king / Parliament passes a law banning anyone else from warring blue clothing then end of story that's the law.

Remember, the Constitutional Convention was a convention to rework the Articles of Confederation. The federal government under tha Articles of Confederation was also one of enumerated powers. That facet was part of the Constitutional scheme long before the 10th amendment.

I stand corrected. There is nothing in the 10th to ignore.

I'm not making the argument that expansion of power comes at the expense of the Constitution, and I actually think most of the Framers were fine with such expansion. If you read the initial debates and correspondence you get the impression that the major writers saw an expansion of federal government power as desirable for the health of the Republic as a whole but impossible to achieve at the time.

Where the problem comes is where the federal government increases power as regards individuals. I can effectively argue that the shift in power from States to Federal govt. is reasonable and in line with at least some Framer's intent. I cannot make the same argument about individual rights.

Re: individual rights, one thing to keep in mind is that at the time of the founding, states weren't required to respect individual rights. The states inherited the unlimited sovereignty of the British Parliament--they could do anything they wanted, limited only by their own constitutions. It wasn't until 1925 that the Supreme Court held that the 14th amendment had been intended to apply parts of the Bill of Rights to the state.

So asking "what would the framers have thought about warrentless wiretapping" is a bit misguided, because the framers wrote a document against the assumption that the states were the ones responsible for internal security, and could use their very broad police powers in the process.

Really the question is: are we less free than we used to be? And contrary to popular myth, we reallly aren't. If you're not a white male, you are unarguably freeer than you have ever been in the history of the U.S. Even if you are a white male, you are free from many of the overreaches of state police power that you would have been subject to before the Supreme Court applied the Bill of Rights to the state. And it's at least debatable that internal security measures like warantless wiretapping aren't as extreme as say the Alien and Sedition Acts which were passed less than 10 years after the ratification of the Constitution.

I'm sympathetic to the civil libertarian cause, but when people complain about the erosion of liberties, I have to ask: which ones? First Amendment? First Amendment protections are today the strongest they have ever been. The First Amendment now protects commercial works like video games that in the past might have been seen as outside the scope of First Amendment protection. State-level obscenity laws, libel laws, etc, have been struck down by federal courts. Second Amendment? Until 2010, nothing would have prevented a state like Illinois from banning guns completely--states simply weren't subject to the 2nd amendment at all. Fourth, fifth, sixth amendments? In the 1970's the Supreme Court went on a rampage striking down state practices that they felt violated those amendments. Heck, just in the 2000's, the Supreme Court extended habeas protection to non-citizens in Guantanamo Bay. A hundred years ago, that would have been inconceivable.

The specific laws which concern me have mainly been passed in the 1980s or later; I'm not arguing that we're less free (in law) than we were in 1800 (even though in practice the structure of the economy, technology, etc. did effectively give people more freedom in a lot of ways).

PATRIOT is a big one.

The intelligence wiretapping authorization (especially as expanded in 2001 and 2008)

CDA and COPA (which were later overturned, but are great examples of Congress passing inherently unconstitutional laws "for the children")

I guess right now I'm concerned about the potential for more 2A restrictions -- I'm doubtful that the 1994 AWB was constitutional, and wonder if it would hold up under the current court post Heller and McDonald.

CALEA seems to be at odds with the 4th, but apparently not.

DOMA (which I guess was fixed)

Aside from the recent gun rulings, I'd prefer the laws of 1975 I think.

When you compare something to the Alien and Sedition Acts, you should remember that the Alien and Sedition Acts almost led to the destruction of the Union entirely and laid the philosophical foundation for the Civil War.

The framers put in the Supremacy Clause in order to effectively limit the sovereignty of the States. Madison and others wanted to go a step farther and add in the negative, but they lost that argument by the vote of one state, the deciding argument being that the Supremacy Clause would allow the Federal government sufficient power to control any State law so egregious as to need federal attention.

They were actually worried about things like that because the Massachusetts State Constitution had failed so completely. As Madison wrote in a 1787 letter to Jefferson, "The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most stedfast friends of Republicanism"

Re: freedom, I don't think we're particularly less free than we once were, save on the frontiers and most of that is perception, not fact. However, setting precedent for the accepted encroachment of rights, or even the perception thereof, is very dangerous to do on a Federal scale.

The last part does make a lot of sense.

The 10th Amendment is a tautology only in so far as we take it for granted. But it serves a very important purpose if and when new issues arise that had not previously been anticipated by the Founders.

It helps to think of the Constitution as a set of operating instructions for the machine that is the federal government. If something isn't explicitly enumerated, the machine needs a way of knowing how to render a decision. The 10th Amendment intentionally limits the decisionmaking capabilities of the machine to the expressly listed operating instructions, and no more.

You can retrospectively give it that interpretation, but that's not what the text of the amendment says.

It's exactly what the amendment says.

Text:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In plain English: "Anything we didn't mention in the Constitution is the domain of the states."

It's important to point this out explicitly, so that the federal government does not make assumptions of power if/when it encounters an issue not specifically enumerated in the Constitution.

That is what the text of the amendment says, and contemporary sources make clear that the framers included it in the Bill of Rights to make legally explicit the limited scope of federal power that they all had in mind. This is the explanation given by James Madison in the Federalist Papers, No. 45 [0], for example.

It was only a decade or two into the twentieth century that judges began to call the Tenth Amendment a meaningless "truism". It's no surprise that these were the same judges who first lent their imprimatur to vast new federal powers, mostly through boundlessly expansive interpretations of the commerce clause and especially of the general welfare clause relating to taxation.

0. http://press-pubs.uchicago.edu/founders/documents/amendXs4.h...

I really wouldn't use the Federalist Papers to justify Constitutional intent, or even Madison's true opinion on any subject he wrote within. He wrote them because though he thought the Constitution as written would fail, it was the best they could do at the time and would hold the Union together until it could be changed, which it was.

More importantly, Judicial Review was created and filled the gap Madison saw between the powers enumerated in the Constitution and their implementation.

Within the mainstream of jurisprudence, as well as good case law, the Federalist Papers are absolutely used to clarify and explicate the original meaning of the Constitution. They are far and away the leading source for that purpose.

If you're interested in how well the Papers do (or don't) reflect the intent of the framers and contemporary understanding of the Constitution, I can suggest a 40-ish page law review article [0] by Gregory Maggs. It also covers the history of the Papers' citation in legal scholarship on constitutional interpretation and in decisions of the Supreme Court.

0. http://www.bu.edu/law/central/jd/organizations/journals/bulr... [PDF]

That's really interesting. I'm not a lawyer, just someone who did his thesis on Madison, specifically why the Constitution didn't fail in the way he thought it would; I can only speak to that. I'll read the PDF, thanks.

If you want, the Library of Congress has copies of his correspondence and notes, they're a really interesting read. You can also find them at http://oll.libertyfund.org/index.php

Pash is right, but I think he overstates his case a bit. It's important to realize that there are as many original interpretations of the Constitution as there are framers, and that the Federalist Papers represents the views of a certain subset of the people who wrote the Constitution. They are a popular reference, but they are by no means gospel.

Yours is neither the first, nor will be the last comment I hear sharing this common theme, but I strongly feel that EAFP holds truer in the real world that contains people than our world that contains electrons and holes.

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