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Apr. 23rd, 2008 @ 03:50 pm (no subject)
How does the 17th amendment limit the 9th and 10th amendment?
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fabianwhig:
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From:nsingman
Date:April 24th, 2008 03:31 am (UTC)
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The 17th amendment, providing for the direct election of US senators, removed one of the states' legislative prerogatives (specifically, selecting those senators). Limiting such state prerogatives would, ipso facto, limit the scope of the 10th amendment as it covers the states, though it might be construed to then grant those powers to the people (thus a wash, perhaps?). The 9th amendment mentions only the rights of the people, and this specific grant would seem to expand rather than limit those rights by granting the people the right to vote directly for senators.
From:fabianwhig
Date:April 24th, 2008 03:33 am (UTC)
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So can it be said that how the Supreme Court has applied the 14th and 17th amendment has led to a De facto neutering of the 10th amendment, which increases the necessary "scale" of people to use the power in the 9th?
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From:nsingman
Date:April 24th, 2008 03:48 am (UTC)
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The 14th is much broader than the 17th. What has done most of the de facto neutering of the 10th amendment by the 14th is the combination of the incorporation doctrine and the rather broad interpretation of "privileges and immunities."

I'm not especially comfortable with the incorporation doctrine itself, and really don't like the broad interpretations of privileges and immunities. However, many very popular (and, I believe, constitutionally incorrect) Supreme Court decisions, such as Brown v Topeka and Roe v Wade rest largely on those.

I'm not a constitutional fetishist; I'm a radical libertarian, and the Constitution is not a libertarian document. But I do expect the federal government to play by the rules, and its branches should neither usurp nor abdicate their responsibilities. They have done so, and with terrible effects.