norml21 - Page 22
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theorist:
To admit a given federal power as a matter of
convenience would go far to impair the
validity of the Tenth Amendment° The
doctrine that the federal government was one
of the enumerated powers would "then be
replaced by the theory that federal authority
could encompass any matter of sufficient
importance to the national welfare° The
whole Jeffersonian concegtion of the union
would be subtly altered, even destroyed.
A.H. Kelly, The Americ@f!_Constitutiong 220 (3d Edo 1963)
The import of the clause of the Tenth Amendment is
inaccurately reflected by its contemporary disregard. The last
clause of the Tenth Amendment has never been subjected to careful
Supreme Court analysisg nor has any case been argued or decided
on its merits. In the first forty years ef this century, the
Tenth Amendment was often invoked by litigants who claimed that
certain federal laws invaded the powers _'reserved to the state."
The Supreme Court, in three major cases (___l_v. Da_, 247
U.S. 251f 62 L. Ed. 1101 (1981) {commerce clause), Schect r v.
United Statg___, 295 UoS. 495 (1935) (commerce clause), and Uni__9__
States v. Bu_eK, 247 U.So 1 (1936) (taxation)), guided by its
view as to where the dividing line between the state and the
Federal jurisdiction should be drawn, restricted delegated
federal powers. In these decisions, it was determined that the
asserted federal power was not within the purview of the commerce
clause or the power of taxation.
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