If the name John Marshall doesn’t mean anything to you, don’t be alarmed. He’s a bit before our time. He was a highly esteemed figure in history, but if I tell you a lot of folks would like to go back in a time machine and shoot him at birth, you might be surprised. Lacking a time machine, I’d support digging up his bones, shooting them several times, then reinterring them.
Why? John Marshall, Chief Justice of the Supreme Court of the United States from 1801 to 1835, rendered the Tenth Amendment to the Constitution meaningless with an arbitrary decision that still stands today. Here’s the language in the amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The intent of those who passed the amendment was to limit the power of the federal government. The import of it was that whatever powers the government has were detailed in the Constitution. But this didn’t sit well with Marshall. He interpreted it as allowing any power the government is not expressly prohibited from having. Had the amendment read “not expressly prohibited”, he wouldn’t have been able to interpret it that way.
There were other decisions that gave the feds more power at the expense of the states and the people, such as extending the power to tax. But Marshall began the invalidation of much of the Constitution.
There are quite a few conservatives who feel that the federal government has too much power, and would like to restore the Tenth Amendment to its original meaning, most likely by inserting the word “expressly”. The much maligned and demonized John Birch Society (not a party today, but an informational organization) was largely founded on that belief. The Constitution Party, the American Conservative Party, the Conservative Party USA, and the Libertarian Party all support restoring the Tenth Amendment. However, they may take it farther than many would like. For example, Social Security is unconstitutional if the Tenth Amendment is restored, as would be Obamacare and the bulk of government spending which isn’t for defense or homeland security.
I personally feel that the genie is out of the bottle, or Pandora’s box is open, or some other similar cliché applies to the current reality. We can’t undo John Marshall’s legacy. What we can and should do is try to reform the federal programs, particularly entitlements, taxes, and regulations, to bring us closer to what the Founding Fathers intended this country to be.