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Old November 20, 2008, 11:34 AM   #29
King Ghidora
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Join Date: April 7, 2008
Location: SE Ohio
Posts: 584
The Supreme Court has very rarely cited the 10th ammendment in the modern era. It was a major issue before the Civil War and a major issue of the Civil War for that matter. There have been rare instances of the court citing the 10th in recent decades. The one that probably stands out is when the federal govt. tried to force states to pay their employees the federal minimum wage. The court cited the 10th in overturning that ammendment to the Fair Labor Act.

Still going back to the New Deal there has been scant reference made to the 10th in any decision. FDR was essentially given almost free reign to inact any law or policy he wanted. When the SC balked at some of his New Deal programs he simply attempted to add 6 extra members to that court. But Congress wouldn't go along with his Judiciary Reorganization Bill of 1937 and it went down to defeat. He was heavily criticized for attempting to undermine the independence of the courts too.

Oddly the court became more apt to go along with Roosevelt's programs after that battle. FDR had won a landslide victory in 1936 and the court apparently felt like he should be given more lattitude once their independence had been established. Even conservatives in his own party had fought him on his plan to pack the court but his New Deal programs, socialist as they were, continued on unabated. Only a few of his programs were declared unconstitutional and most of those came before his plan to pack the court. They were the reason he attempted to pack the court in fact.

Since that time the federal government has pretty much had it's own way circumventing the COTUS in ever more imaginative ways. From the Great Society to the Food And Drug Act (which was designed to fight drug abuse and signed by Nixon) the court never even ruffled their feathers. The 55 MPH speed limit and lots of other intrusive fed programs went untested. It wasn't until liberals decided they could use the court to get their way in spite of what the people wanted that we started to see interference from the courts. After W managed to change the makeup of the court decisions started going the other way.

That could change if the new POTUS manages to change the court again. But most of the justices that are thought to be close to retirement are in fact liberals. The younger justices are conservative. Maybe strict constructionists will continue to rule the courts if we're lucky. If they do I don't see much chance of a ban on CCW even if Congress and the POTUS pass such a law. It could quickly be stopped by an injunction while the case was fought out. In the end I don't think it would stand up but we just don't know that until it happens.
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