Wednesday, July 29, 2009

It is not a "Bill of Rights", but a "Bill of Wrongs" IV

Last of the original set of amendments to the Constitution which have come to be known as the “Bill of Rights” is the Tenth Amendment, which 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.” Significantly, at page 123 of the Federalist Papers: "The State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” Clearly, the Tenth Amendment was added to prevent the very threat to our liberty that is now occurring: a national authority dictating every aspect of our life . . .

Although there are many aspects to the usurping by the federal government of power denied to it by the Tenth Amendment, the most grotesque example can be found in the exercise of “police” power which was granted to the federal government in only the most limited matters by the Constitution. As observItaliced in Hamilton v. Kentucky Distilleries & Warehouse Company, 251 U.S. 146 (1919): “That the United States lacks the police power, and that this was reserved to the states by the Tenth Amendment, is true.”

The federal government is given the express power to “punish” only three times in the United States Constitution. First and Second, at Article I, §8, “The Congress shall have power . . .To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations” and “To provide for the punishment of counterfeiting the securities and current coin of the United States”. Likewise, at Article III, §3, “The Congress shall have power to declare the punishment of treason . . .”.

Notably, in Keller v. United States, 213 U.S. 138 (1909) the Court found unconstitutional a Congressional attempt to control prostitution: “While the keeping of a house of ill fame is offensive to the moral sense, yet that fact must not close the eye to the question whether the power to punish therefor is delegated to Congress or is reserved to the state. Jurisdiction over such an offense comes within the accepted definition of the police power. Speaking generally, that power is reserved to the states, for there is in the Constitution no grant thereof to Congress.”

Yet, the following year the Mann Act – now found at 18 U.S.C. § 2421–2424 – was enacted and prohibited the interstate transport of females for “immoral purposes.”. Nonetheless, the Mann Act has become a favorite tool of the federal government to prosecute those it wishes – i.e. the D.C. Madam – and to not prosecute those just as guilty – i.e., Eliot Spitzer.

In the final analysis, the federal government was never granted the power to regulate the “morals” of its citizens. But try to find a judge to rein in the legislative or executive branches in this regard. Good luck.


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