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Yet More on Palmer the non-Federalist

Following up on this post–my latest hnn reply is reprinted below again, in case it gets deleted.

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Palmer writes:

Mr. Kinsella is not only not a careful reader, but it seems that he’s not much of a thinker, either.

Here we see Palmer once again donning his his personal attack mode regalia. I tire of these people always trying to make it “about me”–really, I’m not an important enough figure to do this to. Anyone perusing my corpus can analyze Palmer’s claim for the puerile slander that it is. I may not have gone to Oxford (sniff), but still…

I am, however, a bit disappointed he didn’t call me a racist, anti-semite, slavery supporter, misogynist, or homophobe, in this post. I must be losing my touch.

Neither I nor anyone else I know would argue that the Tenth Amendment imposes limits on the states, as Mr. Kinsella says I do. That would, indeed, be quite a stupid claim. I leave it to the reader to ponder what it says about Mr. Kinsella that he has interpreted my words in that manner.

I did not say explicitly that Palmer argued this. Rather, I made clear my view that the Tenth Amendment does NOT limit the states. I made this comment to explain why I objected to your use of “reserved” earlier–your use makes sense only if you do view the Tenth Amendment in this way. Therefore, since the 10th can’t be viewed this way, your usage makes no sense.

Let’s see why. Palmer said “the federal constitution […] does not reserve to the states the power to regulate commerce among the states.” He said this in support of his contention that I am “seems deaf to clearly unconstitutional rights violations”. In other words, Palmer is contending here that because the federal constitution does not “reserve to the states the power to regulate commerce among the states” — in the 10th amendment, which does the reserving — then this implies that state laws regulating commerce among the states are unconstitutional. But this conclusion rests on the assumption that states are granted their power by the Constitution–by the Constitution “reserving” certain powers to the States. And if it does not reserve this power to the states, then they don’t have it. That would imply that the reservation clause of the 10th amendment is a grant of power to the states. But it clearly is not, as I pointed out, to illustrate Palmer’s implicit error.

Rather, a proper understanding ou our federal system would require the following argument for saying the state wine laws were unconstitutional: Congress is granted the exclusive power under the IC clause to regulate interstate commerce, and due to the supremacy clause, any contrary state law is preempted. This is the type of argument that would have to be made; it is the dormant commerce clause type of reasoning. It has nothing to do with any reserved power to the states.

Here’s how this can be seen. If there were no commerce clause at all, then it would clearly not be unconstitutional for states to regulate wine from other states. Why? Because there is simply no limit in the federal constitution on states doing this. In fact the “reserved” language in the 10th empahsizes this. We do not need to find some language saying “power to regulate interstate commerce is reserved to the states.” The states have plenary power, subject only to limitations on that power in their own constitution or in the federal Constitution.

There is no explicit limit placed on states to regulate IC, in the Constitution. It is implied only because the Constitution grants Congress the power to regulate this. That crowds out the state’s right to do this, or preempts it. But since the federal government is one of enumerated powers, if the IC clause did not exist, it would not have the power to regulate IC, and there would be no preemption of the state’s power to do so.

So the issue of whether a state has a right to regulate interstate wine shipments turns solely on the IC clause itself (and also the later-ratified 21st Amendment). It has nothing to do with the 10th Amendment. So there is no need to say anything about whether the “power to regulate IC is reserved to the states”. The question is whether Congress is given this power, and whether it conflicts with a given state law.

This can be seen even more clearly by recognizing that the Constitution was enacted in 1789 with no bill of rights. The 10th Amendment was not ratified until 1791. It was added just for extra caution. In the two-year period from 1789 to 1791, there is no doubt hat we still had a federal system. In this federal system, the feds had only the powers granted to it; and the states were limited by this Constitution only where it explicitly limited the States or where it implicitly limited them due to a grant of power to the feds that would preempt contrary state laws. So if a state had tried to regulate wine in 1790, one could still argue that the dormant IC clause nullifies this state law. Notice this argument would be the same one as we make now (though we now have to take the 21st Amendment into account too). In both cases it is irrelevant whether there is a “power to regulate interstate commerce” “reserved” to the states.

This is why I said earlier that Palmer’s “comment betrays an utter confusion about our federal system.” To make this comment shows that one believes the states have to “find” in the Constitution somewhere their powers. It presupposes that in our Constitutional order the states derive their power from the Constitution. I pointed out that they do not.

Now, it could be that Palmer misspoke, or was a bit uncareful here, and I am making too big a deal out of his error. But I believe if he meant it as I take he did, it is symptomatic of a deeper error; the error of not seeing our system as truly federal. It seems to repeat the Lincolnian error that the states were created by the Constitution, rather than predating the Constitution as separate, sovereign states.

Now, if Palmer did indeed misspeak, he could simply clarify what he meant, and that would show that my criticism is simply inappliable (though it would be applicable to those who do believe the States derive their power from the federal Constitution). But he did not do this. Instead he resorts to pettifogging, personal insult, and arrogant, snide insults–childish ones, at that, pretending to lecture me about the Constitution. I am not the world’s greatest expert–again, Palmer, it’s not “about me”–but it’s clear to any objective observer that I have a reasonably good handle on the Constitution.

Now let’s see Palmer’s latest insults:

I wrote that the power to regulate interstate commerce is not a power reserved to the states; it’s specifically delegated to Congress. Mr. Kinsella objected to the use of the term “reserved”: “The states do not need to find in the Constitution some ‘power’ ‘reserved’ to them to regulate commerce.” The term “reserved” is from the text of the Tenth Amendment, which states that the powers that are not delegated to the United States, nor prohibited to the States, are reserved to the States, or to the People. That does not mean that the powers are “granted” to the States by the federal government, nor does quoting it mean that I or anyone else thinks that it is intended to be a limit on the power of the states. The power to regulate interstate commerce has been delegated to the Congress, and thus to the United States, and is thus not reserved to the states.

Yes, it is true, that if a power has been delegated to the feds, then it is not reserved to the states. But so what? The question is whether this power has been delegaged and whether it conflicts with a given state law. Not what has been “reserved”. Again, the reserving language simply emphasises that the feds have only the powers enum
erated. If there were no IC clause and no 10th amendment, the states would be able to regulate IC because there is no other limit. So this shows that you don’t need to even answer the question whether the states have the power “reserved” to them. Even if they did not have the power reserved to them in some explicit statement, exercise of this power would be unconstitutional only if it violated a limit in the Constitution or it was contrary to a power granted exclusively to Congress.

Which brings up another point–just because a power is delegated to Congress does not necessarily mean state laws exercising a similar power are necessarily unconstitutional. For more on the “dormant” commerce clause, see here. As pointed out there,

The grant of power to Congress over commerce, unlike that of power to levy customs duties, the power to raise armies, and some others, is unaccompanied by correlative restrictions on state power. […] As Hamilton pointed out in The Federalist, while some of the powers which are vested in the National Government admit of their ”concurrent” exercise by the States, others are of their very nature ”exclusive,” and hence render the notion of a like power in the States ”contradictory and repugnant.” As an example of the latter kind of power, Hamilton mentioned the power of Congress to pass a uniform naturalization law. Was the same principle expected to apply to the power over foreign and interstate commerce? […] That […] the commerce clause, unimplemented by congressional legislation, took from the States any and all power over foreign and interstate commerce was by no means conceded and was, indeed, counterintuitive, considering the extent of state regulation that previously existed before the Constitution.

What does this mean? It means that even if Congress has the power to regulate IC, it does not necessarily mean that States cannot. In other words, the dormant commerce clause reasoning may be wrong. It also means that Palmer is wrong in simply assuming that the delegation of a power to the feds means that power is not reserved to the states, in a sense. It could be, after all, that a given power is meant to be concurrent, not exclusive.

But this just shows that a reasonable lawyer or libertarian could disagree with the Supreme Court’s wine decision, and agree instead with the dissent. Which is what this discussion was about, and which Palmer seems to want to evade in slippery fashion by quibbling over the word “reserved”.

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