Feds vs States: The Eighth, Tenth, and Fourteenth


Doodling under Steve’s post on the Eighth Amendment, I realized it was time to spin off a separate article. The Bill of Rights says what the FEDERAL government cannot do to you, and the Fourteenth Amendment attempts to extend those protections into the several formerly sovereign states (and once upon a time, especially in states from the Founding Era, state constitutions had equal or better protections built in). But what about the Tenth Amendment? Who is really supreme when it comes to the police powers retained by the states?

The Eighth Amendment case about to come up at the Supreme Court gets to the very root of the meaning of the Fourteenth Amendment: Does it, and some claim this was the original intent, enforce the protections of the Federal Constitution for all citizens of These United States (explicitly at the time for freedmen – ex slaves), OR is it trumped by the plain statements in the Constitution that the police powers are reserved to the States, and by the Tenth Amendment, reserving all powers not explicitly delegated by the Constitution (and Amendments) to the Federal government, to the States, respectively, and the People?

For example, if the Second Amendment is supreme, how can the states enact bills restricting our right to keep and bear arms? But if the Tenth Amendment and the police powers of the States reign supreme, how can the Federal government prevent states from disadvantaging and disenfranchising classes of people that state governments do not like (think Jim Crow laws)?

The Fourteenth Amendment was an attempt to square that circle, but how far can we push it? Can we enforce upon the states a ban on any laws abridging freedom of speech, the right to keep and bear arms, the right to due process and a speedy trial (always trashed for seizure cases), and of course, and ban on cruel and unusual, or excessive punishment?

The “Tenthers” will say that using the Fourteenth in that manner leads down a slippery slope, not unlike the way the Commerce Clause became the “One Ring to Rule Them All,” when Wickard vs Filburn declared that almost any transaction counted as “interstate commerce.”

What do readers think on this topic? Use the Fourteenth to enforce the bill of rights for all citizens of all states, or render unto the States what is theirs by right under the Tenth? Please debate 🙂