From: bu008@cleveland.Freenet.Edu (Brandon D. Ray)
Newsgroups: alt.society.civil-liberty,soc.history,alt.politics.usa.constitution
Subject: Re: [ACLU] A History of the Bill of Rights
Date: 23 Nov 1992 10:22:44 GMT
Organization: Case Western Reserve University, Cleveland, OH (USA)
Reply-To: bu008@cleveland.Freenet.Edu (Brandon D. Ray)
NNTP-Posting-Host: hela.ins.cwru.edu


In a previous article, MIKEF@brownvm.brown.edu (Mike Fessler) says:

>In article <1992Nov22.033852.26022@ucsu.Colorado.EDU>, fcrary@ucsu.Colorado.EDU
>(Frank Crary) said:
>>
>>In article <92326.175901BRYAN@wvnvm.wvnet.edu> BRYAN@wvnvm.wvnet.edu (Jerry
>>Bryan) writes:
>>>>And the 10th? All powers not explicitly given to the federal
>>>>government are reserved to the states; all powers prohibited to the
>>>>states are reserved to the people.
>>
>>From the debates over ratification (both of the Constitution and of
>>the Tenth Amendment) the paraphrase is accurate, with the exception
>>of the word "explicitly." The federal government has only those
>>powers granted to it by the Constitution (explicitly or by implication).
>>Actions in conflict with these (limited) powers are prohibited to States
>>and individuals. All other powers are left to the States or to the local
>>people, as specified by state Constitution.
>
>The Supreme Court has also held, in McCulloch v. Maryland (Marshall for major.)
>that "there is is no phrase in the instrument [Constitution] which, like the
>articles of confederation, excludes incidental or implied powers; and which
>requires that everything granted shall be expressly and minutely described.
>Even the 10th amendment, which was framed for the purpose of quieting the
>excessive jealousies which had been excited, omits the word "expressly," and
>declares only that the poers "not delegated to the United States, nor
>prohibited to the states, are reserved to the states or to the people;" thus
>leaving the question, whether the particular power which may become the subject
>of contest has been delegated to the one government, or prohibited to the
>other, to depend on a fair construction of the whole instrument. The men who
>drew and adopted this amendment had experienced the embarrassments resulting
>from the insertion of this word in the articles of confederation, and probably
>omitted it to avoid those embarrassments.
>-------------------------------------------------------------------------
>Michael Fessler                                   mikef@brownvm.brown.edu
>   To light a candle is to cast a shadow.  -- Ursula K. LeGuin
>-------------------------------------------------------------------------
>
Thus speaks a man (Marshall) determined to impose his own view of "good 
gov't" on the nation, regardless of what the text of the Constitution
actually has to say.

-- 
******************************************************************************
The opinions expressed by the author are insightful, intelligent and very
carefully thought out.  It is therefore unlikely that they are shared by the
University of Iowa or Case Western Reserve University.
Newsgroups: alt.society.civil-liberty,alt.activism,alt.politics.usa.constitution,soc.history,talk.politics.theory