1989]                        AMPLIFYING THE TENTH AMENDMENT                     931


is comparable to that of a lobbyist.151 This result seems completely inconsistent with the plain language of the tenth amendment and the legislative intent supporting its promulgation152 and confirms the conclusion that the tenth amendment has become an ineffective tool to divide authority between the states and the federal government.153

The amendment also illustrates the general principle that "rules" may become ineffective without a political structure to enforce them.154  In this respect, it could be expected that, without support from the Supreme Court, the tenth amendment would become meaningless.  This loss of support from the Court, however, is tied directly to the passage of the seventeenth amendment, which eliminated the second mechanism the Framers provided to strike a balance in the federal political process.155




The second mechanism the Framers provided gave the state legislatures the right to elect senators to Congress.  In 1913, however, the states ratified the sixteenth and seventeenth amendments and altered the balance of power.156 States relinquished power to the federal government by surrendering the right to elect senators and, thereby, the direct influence they had over the federal political process.  Correspondingly, they conferred power on the federal government by enabling it to tax incomes.  In so doing, the states laid a foundation for the shift in power that would take place over the next seventy

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151. Garcia, 469 U.S. at 552-53.  "The adoption of the Seventeenth Amendment (providing for direct election of Senators), the weakening of political parties on the local level, and the rise of national media, among other things, have made Congress increasingly less representative of state and local interests, and more likely to be responsive to the demands of various national constituencies." Id. at: 565 n. 9 (Powell, J., dissenting).  Members of Congress are elected from the various states, but once they are in office they are members of the federal government.  Id. at 564, 565 (Powell, J., dissenting).

152. "One can hardly imagine this Court saying that because Congress is composed of individuals, individual rights guaranteed by the Bill of Rights are amply protected by the political process. Yet, the position adopted today is indistinguishable in principle.  The Tenth Amendment also is an essential part of the Bill of Rights."  Garcia, 469 U.S. at 565 n.8 (Powell, J., dissenting).  "So strong was the concern that the proposed Constitution was seriously defective without a specific bill of rights, including a provision reserving powers to the States, that in order to secure the votes for ratification, the Federalists eventually conceded that such provisions were necessary."  Id. at 569 (Powell, J., dissenting).  "The spirit of the Tenth Amendment, of course, is that the States will retain their integrity in a system in which the laws of the United States are nevertheless supreme."  Id. at 585 (O'Connor, J., dissenting) (emphasis in original) (citing Fry v. United States, 421 U.S. 542, 547 n.7 (1975)).

153. REGULATORYREFORM, supra note 11, at 33.

154. D. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST 46,47 (1984) (referring to the analysis of "parchment" barriers in THE FEDERALIST NO/s 48 and 51).  See also REFLECTIONS, supra note 66, at 17-25.  The tenth amendment illustrates this principle.  It has, over time, represented the rights of the states, although inconsistently, and may in time represent them again.  Garcia, 469 U.S. at 580 (Rehnquist, J., dissenting).  Assuming for a moment that these rights are fundamental and important, then it does not seem appropriate for the Supreme Court to occasionally take the position that they do not exist or will not be recognized.  Baker, 108 S. Ct. at 1371 (O'Connor, J., dissenting).  Nor should they be left in the general format of assumptions.  New York, 326 U.S. at 595 (Douglas, J., dissenting).

155. National League of Cities, 426 U.S. at 841 n.l2.

156. "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."  U.S. CONST. AMEND. XVI. "The Senate [shall be] ... elected by the people . . ." U.S. CONST. AMEND. XVII, Sec. 1.

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