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My excellent student Alex A. has recently employed the phrase “The Jig is Up” in regard to an existential crisis we’ve all been having. We’ll share that crisis soon. In the meantime, let’s honor the expression a little bit. Here’s the Harvard Law Review in 1939 (do current editions read like this?):

While there is a substantial body of opinion that the federal idea is obsolete (e.g. Harold Laski) it is not seriously contended that its demise can constitutionally be accomplished without amendment. Yet, unless it is the Tenth Amendment, no constitutional provision in terms requires adherence to that ideal. Use of the Amendment to establish the canon that the granted powers of Congress must be construed to preserve the federal organization seems unexceptionable. And a doctrine that the Tenth Amendment requires national policies to be carried out with as little interference with state law as is consistent with the business-like administration would not be the first to depart from the dictionary meaning of constitutional language.

Here is a link to the Tenth Amendment Center.

2 Responses to “The Jig is Up: A New and Continuing Series”

  1. I have two booklets of The Constitution, one for each briefcase. I never leave home without it. I have it in doc, txt, and html in my folders for .

    Amendment X
    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.

    But, as recommended, reading it with cadence helps.

    In the wake of 9/11, it was suggested that there is no “right to travel.” Before that “the right to privacy” was argued. I think that what is needed is citation to a contemporary of the Founders such as Pufendorf or Condorcet who enumerated the “natural rights” or offered a standard for finding them. I agree with the Randian principle that a right is not provided by others. You have a right to travel, but not a right to trespass. You have a right to privacy; but I do have a right to gain information? I often take pictures and sometimes people object. I tell them that they lost their right to privacy when they left their homes. But then that raised Kyllo v. United States. Can I use any and every existing frequency to “see” what may be putatively “obvious”?

    I have more questions than answer… and perhaps that indicates the real challenge here…

  2. Harry says:

    A reference was made to cumulative preferred stock, a concept perhaps foreign to budding financiers. The “cumulative” refers not to cumulative voting, as in common shareholders’ rights, but rather to paying preferred dividends; if the company were not to be able to pay its preferred dividends one year, if it made enough money to pay the preferred dividend plus the one they missed the next year, the preferred stockholders would get paid not just for this year, but for the one they missed. Of course, the contingent-interest bondholders would get paid before the preferred stockholders, and the common shareholders got paid last. An advantage of this contractural system was not to force a company into financial ruin for a bad year or two, thus avoiding the Bleak House solution, where the lawyers get everything.

    My comment about lawyers is not to ridicule the rule of law or sanctity of contract, two principles embedded in our Constitution. There were good lawyers who dreamed up the contingent cumulative concept.

    Contrast this with the screwing of holders of Chrysler and GM bonds, or placing Citicorp executives ahead in line of holders of CITI debentures, upending the apple cart, throwing every creditor under the bus. I never touched GM or Chrysler corporate bonds, but it took a lot of resistance, and I got lucky with GMAC, feeling just a little dirty, along with the Auto Workers, who owned a pile in their pension fund.

    Who knows what this will cost, our government repudiating debt, in this case, in favor of favored individuals.

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