Reply #251: I wasn't trying to evade your point [View All]

[TPaine7]

You've COMPLETELY ignored the point I made when I said that "the people" in their COLLECTIVE capacity delegated those powers to Congress, and THAT'S how they're retained.

You're correct, I did ignore that. I saw it as a bald assertion, but it was never my intention to dodge or evade anything, so I sincerely regret ignoring it.

Your point still is, as far as I can tell, a bald, unsupported assertion. I see no reason whatsoever to assume that because powers are granted by the people as a collective that they are retained by the people as a collective. On the contrary, I see strong logical reasons to conclude the opposite. Here are two quick examples.

First, the government has the authority to establish speed limits for public safety. "Government" can mean either federal government (as in the District of Columbia or on military bases or in national parks, etc.) or the state or local government. Let us say, for the sake of discussion, that this is a legitimate authority granted to the federal government by the people COLLECTIVELY. Let us further say that the government exercises this power over a national federal area in a remote desert area. The Federal government exercises its delegated power and sets the speed limit at 75 mph.

Now let us say that the people had not delegated the power to the federal government to set speed limits in remote federal areas. That would mean that the people would retain the power to decide how fast to drive on roads in that remote federal area. If you were driving cross country on an interstate highway, and passed through that federal area, you alone, as a single individual, acting on your own behalf, under your own authority, for your own personal reasons would decide how fast to drive. The power to decide the speed on that road would be reserved by the people, but there would be nothing collective about it.

Second, though I could multiply examples like the one above, I will use a stronger one, from history.

On on January 16, 1919, the people of the Unites States of America COLLECTIVELY granted to the federal government the power to prohibit liquor:

Section 1.
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Link: http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html

On December 5, 1933, the people of the United States of America COLLECTIVELY recalled from the federal government the power to prohibit liquor:

Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Link: http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html

The power to ban liquor is no longer delegated to the United States by the Constitution. The power to ban liquor is not prohibited to the states by the Constitution. Therefore, according to the Tenth Amendment, the power to forbid (or allow) liquor is reserved to the states respectively, or to the people.

How does that work? Well, some states grant to their political subdivisions the power to forbid liquor. In those states, there may be--for example--dry counties and counties where liquor is legal. That is the exercise of the power reserved by the state, exercised through its political subdivision.

What of the exercise of the power when the states do not reserve the power to ban liquor to themselves or to their subdivisions? The power to set alcohol consumption policy is then reserved to the people. In such cases, who decides whether to pick up a six pack of beer on the way home or to have a glass of wine with dinner at a restaurant? It is the individual, acting on his own behalf, for his own reasons, under his own authority. This is what it means for the power to set liquor policy to be reserved to the people.

Clearly, while powers are granted COLLECTIVELY, and while powers are even withdrawn COLLECTIVELY, powers--at least those powers reserved to the people--are exercised INDIVIDUALLY, by private people acting on their own authority and for their own motives.

Does the following look right to you?:

"The powers to "TAKE A YOGA CLASS" and "SELECT WHO TO DATE" 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?"

Yes, legally and logically, that makes perfect sense. My problems with it have to do with style and mathematics. The subject selection seems arbitrary and capricious, and it seems to imply that in all other areas of the individual's life the United States may freely intrude. If I were writing a constitution, and if I set out to solve that apparent implication--and I would, because government tends to expand to fill any space available with the faintest of excuses--I would have only two options:

1) Spend the remainder of my life attempting to write a comprehensive list of the powers of individual humans that are off limits to the federal government--and die with the number of powers still unwritten exactly as long as when I had started (that follows from the definition of infinity)
2) Write something like the following:

Amendment X

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.

That was actually the framers choice. The set out to catalog SOME of the important areas of personal powers (or rights, or freedoms, or liberties...) and were left with the implication that the federal government could interfere in any other aspect of an individual's life. The Tenth Amendment was intended to clear up that issue.

As I've just shown, "the people" in the Tenth Amendment is a collective BODY with political powers.

I disagree for reasons that should be clear by now.

The problem you have is you don't realize that collective rights differ IN THEIR APPLICATION. The following are examples of COLLECTIVE rights which all differ in their application:


Massachusettes Declaration of Rights.

IV.--The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them expressly delegated to the United States of America, in Congress assembled. (See 9th and 10th Amendments.)

XVII.--The people have a right to keep and to bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

XIX.--The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives; and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.

When the people of the State keep and bear arms for the common defence, they do it with the States well regulated militia. If eligable to serve, individual citizens would be called to render military service. On the other hand, individual citizens belonging to the SAME collective body to not need to be an able bodied male between the ages 16 - 45 years of age to "assemble to consult upon the common good; give instructions to their representatives." The SAME is true of "the people" in the 4th Amendment.

I don't know what you mean by saying that "collective rights differ IN THEIR APPLICATION" so I can't answer that point.

I will say, however, that you seem to be still (unconsciously perhaps) conflating "the people" as usually used in legal texts with "the people" as used as a term of art in the Bill of Rights. The fact that Massachusetts referred to the people's right "to keep and to bear arms for the common defence", the fact (if true, I am assuming your intellectual honesty and knowledge) that Massachusetts did NOT specify an individual right to keep and bear arms, and the fact that Massachusetts used the term "the people" in a totally different way than the framers of the Bill of Rights used the term IS NOT RELEVANT to the exegesis, meaning or enforcement of the Second Amendment.