The original form of the American Constitution may be read as reserving to the individual states the authority to occupy law’s entire province, minus the federal fraction. But language expressly limiting the range of governmental law entered the national text in 1791, as nervous founders added the Ninth and Tenth Amendments in the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “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 most obvious aim of these reservations was to create a hedge against tendencies to monopoly not by the states but by the new federal regime. But, in doing so, they also by implication limited the power of the states to occupy all of the remaining range of lawmaking. Given the references to “the people,” it is hard to read these texts as an invitation to a local monopoly by, say, Oregon or Wisconsin. The people hold ground of their own in both amendments. The word or in the Tenth Amendment even makes the individual state and its people competitors in the creation of law, suggesting that the two could exercise their powers contrarily within the uncharted zone.

A clear judicial recognition that parents are an independent source of law for their children—making and enforcing commands that no state or federal government can preempt or forbid—would have profound practical consequences. In the years to come, conflicts between agencies of the state and parents are likely to increase, and courts will be asked, more and more, to reexamine the limits of the parentocracy. Wealth and improving technology will constantly present new options for parents. The educational versatility of the Internet is making homeschooling easier and more attractive, for instance, letting more parents remove their children from the direct influence of the public-school system; already advocates of conscriptive public schooling worry that these children will not be properly socialized and given correct information about sex, medicine, the environment, or what­ever these advocates feel they need.

The significance of all this, however, depends less on who wins particular cases than on which of two master images dominates the consciousness of the nation’s judges: the image of delegation to parents from the monopoly state, or the counterimage of a sovereign parentocracy.

Brandon: Hopefully, as you can see, this is why state is not all about force (at least in the negative sense) ...

Jeff: I agree. Rom 13 says the state motivates by fear AND PRAISE. What I contend is that if you remove the force, the praise, too, will go with it. For the state's enemies would overthrow it if it ceased to sustain itself by a monopoly of maximal force.

I, too, agree that consolidation is a negative move for the state. But, alas, the whole history of man is the history of the powerful consolidating to themselves more power even if it has to shamelessly usurp power to do so. And the moral weakness of man provides no competent resistance to this tendency. This is why the prophets spoke of the people as sheep that are virtually powerless before their "shepherds." That's why it is true what has been said: The only thing man learns from history is that men never learn from history. Nothing but the King of Kings, the true Shepherd, will ever correct this fallen state of affairs.

Post Edited (Similtude) : 1/25/2009 10:35:17 AM (GMT-6)

Post Edited (BBBCanada) : 1/25/2009 10:40:12 AM (GMT-6)

"Every such concession to other sources of law obviously makes state monopoly less plausible. Nevertheless, let us take the monopolist seriously and ask the straightforward question: Does law in the United States consist of nothing but the doings of the federal and state systems, or are there regimes that create and enforce authentic law beyond their reach? Do some persons or institutions make and enforce commands that **no state or federal government can preempt or forbid?**

The answer is yes, even if law is understood en­tirely in the positivist way, as the sheer authority to command with force sufficient to secure habitual obedience. The parents of underage children form a good example, for they are themselves genuine lawmakers. Because too many people believe that only the government makes law, the lawmaking role of parents has been largely invisible, and this invisibility has practical and un­for­tunate consequences for American culture and ­jurisprudence."

Jeff: There is no logical connection in the sense that the laws of logic dictate it. It's just that the two major parties are active in consolidating more and more illegitimate and unconstitutional power to the federal government. The Democrats do it in their own way, and the Republicans do it in their own way. But they both do it, setting further precedents in each administration that almost never get reversed by subsequent administrations.

Brandon:  Right.  Though I don't think you and I agree on what is meant by that exactly--such as your position below about the "redistribution of wealth." 

Post Edited (BBBCanada) : 1/27/2009 11:44:51 AM (GMT-6)