One of the previously obscure Constitutional Amendments that the public did not feel attracted to is the 10th Amendment, one of the main bases of separation of powers between the state and federal government.
The text of the 10th Amendment is as follows:
It is quite peculiar how the 10th Amendment is - is not - mentioned and is - and is not - litigated nowadays, and how the public mislead as to is meaning, which is quite plain and unambiguous.
Let's look at the recent and not-so-recent judicial decisions regarding interpretation of the 10th Amendment.
The 10th Amendment is often equated with the so-called "police power" - of the states, not the federal government.
The authority for use of police power under American Constitutional law has its roots in English and European common law traditions. Even more fundamentally, use of police power draws on two (Latin) principles, sic utere tuo ut alienum non laedas ("use that which is yours so as not to injure others"), and salus populi suprema lex esto ("the welfare of the people shall be the supreme law"), to justify restriction of individual liberties in order to protect the general welfare. The concept of police power in America was further expanded in a series of notable court cases in the late-nineteenth and early-twentieth centuries, including the landmark 1851 Massachusetts Supreme Judicial Court case Commonwealth v. Alger, and the 1905 Supreme Court case Jacobson v. Massachusetts.
So, here are some "police power cases" that have been made by American courts - as an example of laws "made" by courts in the U.S. - completely at a whim, of courts, or those politically and financially powerful forces that make courts tick.
Jacobson v. Massachusetts, 197 U.S. 11 (1905), a 1905 case,
is a case challenging mandatory smallpox vaccination in the state of Massachusetts as a violation of individual 14th Amendment rights.
The U.S. Supreme Court refused to find a 14th Amendment violation in mandatory smallpox vaccination and pointed out that mandatory smallpox vaccination, as protection of public health, is within lawful police power of the state of Massachussetts.
The court did point out that
Of course (as a side note), the same U.S. Supreme Court, 20 years after deciding this case, has asked the U.S. Congress for a "right" to pick and choose whether to exercise such a duty and whether to give effect to the Constitution - and the U.S. Congress did give the U.S. Supreme Court a "right" to pick and choose its cases on a whim, so, after 1925, we have in the United States a discretionary enforcement of the U.S. Constitution, and, as a result a discretionary Constitution, and a super-powerful U.S. Supreme Court acting as a super-legislature - which is confirmed by the recent circus of judicial appointments and attempts for judicial appointments to that court:
- "the stolen seat" of Merrick Garland;
- the nomination of Neil Gorsuch by President Trump; and especially
- the nomination of Brett Kavanaugh by President Trump, and
- the recent #ribsforruth not-so-much-of-a-joke campaign when Ruth Ginsburg, a 85-year-old judge of the court who broke 3 ribs after a "fall in her office" (drunk, asleep or out of it on medication or due to physical frailty or dementia - we do not know since the court refuses to release its judges' medical records, and we are reduced to being force-fed ads about her workouts and interviews with her paid trainer of many years) - the public went so far as openly stating that it will accept a "stuffed Ruth" (I preserved a scan), so far as there is an appearance of a filled seat, the "stuffed Ruth", or her law clerks, rule against Trump, and Trump does not get to appoint a 3rd judge. Note that Ginsburg, by rules of judicial ethics, should be nowhere near Trump's cases - because of her public hostility towards Trump - yet, she sticks to these cases like glue, refuses to recuse, rules against Trump in dissents and is glorified for her obvious judicial misconduct by a large portion of the American public.
- states have mandatory police powers to order vaccination as a public health issue,
- state courts are not allowed to decide the issue of remedies of victims of such vaccinations - children who were injured or died as a result of vaccinations.
And that is true - but it is also true that, in vaccination cases, there is nothing commercial or economic in a child being injured, permanently disabled or die from application of a vaccine.
The judge was correct, though, that making FGM a crime is a matter for state legislatures.
And, state legislatures - I bet - will not make FGM a crime, because it will be immediately challenged on grounds of gender discrimination and equal protection, and making genital mutilation a crime without regard to the child's gender will cause an uproar in Jewish and Muslim communities where male genital mutilation (circumcision for religious reasons) is routinely practiced and is considered a requirement of the faith.
So, here the 10th Amendment won, but the female children lost.
New York State, California and, likely, other states by now, have begun issuing occupational licenses (law, medical etc.) to illegal aliens back during the President Obama's presidency, with President Obama's opposition.
And here there is an interesting trick of the law that does not often - or at all - get discussed in the mainstream media or in the mainstream legal scholarship in the United States.
While it is proper, under the protection of national security powers, for the federal government to regulate immigration, who does or does not work within a state is a purely state power falling within protection of the "general welfare", police power doctrine protected by the 10th Amendment.
So, the federal government is within its rights to "adjust immigration status" - issue permits to foreigners to stay within the United States, temporarily (visas) or permanently (green cards), or accepting foreigners into citizenship (naturalization).
But, the federal government oversteps its authority given to it by the U.S. Constitution by issuing work permits.
At the same time, it is, of course, bizarre when states issue, specifically, law licenses to illegal aliens - because attorneys are required to take an "oath of office", and swear their allegiance to the federal and state laws and to the federal and state Constitutions.
It is bizarre when a state accepts an oath from attorney of loyalty to the Supreme Law of the Land (which includes federal immigration laws) while knowing that that attorney is, and has been for years, violating those same laws - himself and, often, by bringing into the country and harboring his illegal alien relatives, a federal felony.
I see a lot of article and comments condemning actions of Betsy DeVos, the U.S. Secretary for Education.
Commentators accuse DeVos of undermining public education in various ways.
Recently, there were a lot of accusations because of DeVos's change of federal rules of handling sexual assault of campuses.
From the point of view of a constitutional lawyer and a criminal defense attorney, DeVos actually did not go far enough - she did not forbid ANY procedures handling sex assault complaints by college administrations, as she should have, because it is a state CRIME, and states already provided for both civil and criminal procedure for addressing this issue where it is supposed to be addressed - in court.
DeVos is now vilified because - the horror! - she introduced cross-examination of the accuser (the right of the accused guaranteed in criminal proceedings by the 6th Amendment's Confrontation Clause) in "proceedings" on campus substituting the police, prosecution and state courts and handled by people who have neither training nor authority to hold such quasi-criminal proceedings, with long-reaching, life-changing consequences for the accused.
Here would be a good time to recall the 10th Amendment.
DeVos, as a federal public official, has no duty to finance or provide for public education in the states. That duty is squarely, under the police power, the 10th Amendment, on the shoulders of state officials - who are answerable to the public for any mishaps in that area.
And, DeVos certainly has no right to substitute criminal investigations or prosecutions - and there should be, and I am sure that there will be a lawsuit like that by the accused who would tell her that.
Under the 10th Amendment.
It is the state power to control state crime.
And states already provided for how they want that control to be handled, by state police, state prosecutors and state courts.
Not by college administrators.
But, invoking the 10th Amendment in such contexts is inconvenient - because beating federal government for state failures looks kind of stupid, don't you think?
Unless you can earn money by that stupidity, of course.
Like New York State Acting Attorney General Barbara Underwood is doing - by engaging a political activist judge to squeeze federal taxpayers for millions of dollars in order to finance irresponsible fiscal policies of the New York State government.
Sooner or later, any parent has this conversation with his child:
- Child: I am old enough to know what I want, and I want XYZ
- Parent: you are also old enough to get a job, earn money, and buy what you want with your own money
- I WILL FIGHT AGAINST YOU IN CIVIL RIGHTS LAWSUITS BROUGHT BY YOU, USING AGAINST YOU YOUR OWN HARD-EARNED TAXPAYER MONEY;
- I WILL REPRESENT AGAINST YOU THE CORRUPT JUDGES YOU SUED AND WILL FIGHT YOU TOOTH AND CLAW TO DISMISS LAWSUITS AGAINST SUCH CORRUPT JUDGES CLAIMING THAT NO MATTER WHETHER THOSE JUDGES ARE IN FACT CORRUPT, THEY ARE ABSOLUTELY IMMUNE FROM YOUR LAWSUIT AND YOU MUST REMAIN VICTIMIZED AND WITHOUT ANY REMEDY;
- I WILL REPRESENT GOVERNMENT OFFICIALS WHO VIOLATED YOUR CONSTITUTIONAL RIGHTS AGAINST YOU, WHILE YOU ARE SCRAMBLING TO FIND AN ATTORNEY WHO IS NOT AFRAID TO SUE THE GOVERNMENT OR TO PAY FOR HIS SERVICES;
- I WILL INVOKE EVERY JUDGE-CREATED DOCTRINE THERE IS ON BEHALF OF GOVERNMENTAL OFFICIALS TO PROTECT THEM FROM YOUR LAWSUIT, NO MATTER WHAT KIND OF FRAUD OR CONSTITUTIONAL VIOLATION THEY COMMITTED AGAINST YOU AND NO MATTER HOW MUCH YOU WERE HARMED BY THEM;
- I MIGHT EVEN ASK THE COURT TO HAVE YOU PAY THE LEGAL FEES OF GOVERNMENT OFFICIALS YOU SUED FOR FRAUD AND CIVIL RIGHTS VIOLATIONS
I also published, in 2016, when Obama was President, entire lists of dockets from federal courts showing how exactly the New York State Attorney General is opposing civil rights lawsuits against New York State officials accused of violating individual constitutional rights in the state.
All of what I said in 2014, when Obama was President, is as applicable at present, when Trump is President.
State AGs, including the New York State AG,
- continue to OPPOSE civil rights lawsuits in court,
- continue to represent, at taxpayers' expense, government officials accused by citizens of misconduct and corruption, instead of prosecuting them,
- often seek from the court a punishment against civil rights litigants for bringing civil rights lawsuits against the government officials violating their civil rights, as well as to make them pay attorney fees - in other words, to make them BOTH finance his work as taxpayers AND as litigants, and to finance his work not to protect their civil rights, but to protect violators of their civil rights.
And, they are defending the non-existing "right" of states to make the federal government to finance state policies of harboring illegal aliens (a federal felony) - now presented as the states' 10th Amendment power to "secure and protect public safety" - at federal taxpayers' expense.
See, for example, what acting New York State AG Barbara Underwood said in her recent public statement:
The "public safety" victory - is the supposed "right" of state governments to receive GIFTS (grants) from the federal government to do what is their duty to do (and finance, with their own means) in the first place - secure public safety.
Underwood remembers that the police power is the power separate and distinct from the federal government:
And it is true - as with any emancipated child - you earn your own money (collect your own taxes, run your own state-owned enterprises for profit), you use your earned money in any legal way you want.
But, the emancipated child has a right not only to SPEND the money, but to, in the first place, EARN it.
Here the State AG has a memory lapse:
- the person who will fight your civil rights lawsuit in court, on behalf of the government;
- who will represent every corrupt public official in court, at your expense as a taxpayer, but against you.