If you think that I am advocating
I suppose that the only solution for a society where the courts have abandoned their inherent right to say "Tell me Counsellor, do you actually expect any rational person to believe that crap?" is to rewrite the constitution so that absolutely every single possibility (no matter how unlikely) is spelled out clearly and specifically. That, of course, would mean that it would be necessary to include a clause along the lines of
"Neither State nor Federal government shall legislate with respect to any matter not herein specifically referred to until such time as a constitutional amendment clarifying whether that matter is a State or Federal responsibility has been duly introduced and ratified.".
rather than pointing out that that might be what is required in a specific situation - and that that specific situation just might be the one that the US finds itself in respecting the seemingly irreconcilable split between the
- "the Federal Government MUST have absolutely paramount powers over everything not mentioned in the constitution - providing that it is something that the Founding Fathers didn't actually discuss in their writings and therefore didn't turn their minds to" group; and
- "the Federal Government MUST NOT have any power whatsoever over anything which is not specifically mentioned in the constitution - regardless of how uneven that would make the laws of the United States of America" group.
then you are mistaken. To illustrate, I DO NOT "favour" amputation as a general course of conduct, but sometimes amputation is required to stop the spread of gangrene and in that situation I wouldn't feel at all reluctant to
recommend a course of action that I do not "favour" as a general course of conduct.
Is there room for BOTH "federal" and "state" legislation on the same general topic? Yes there is.
That mingled jurisdiction could (and I'm making up an example) operate along the lines of:
- The "federal" government establishes a national maximum safe highway speed of 120 mph;
- The "state" government establishes a state maximum safe highway speed on 80 mph;
- The "federal" government requires that each state provide clear warning of the change in maximum safe highway speed to motorists entering the state and also provide a "deceleration zone" of one mile (in which the warning is repeated several times) before enforcing the "state" government established maximum safe highway speed (in order to prevent "state" governments from setting incredibly low maximum highway speeds right at the state border and ticketing everyone who enters the state before raising the speed limit back up to what it was on the other side of the state border).
As I said, that's one theoretical example of how commingled jurisdiction could work.
PS - You do know that arguing "The Federal government should not have the power to __
[fill in the blank]__, that power belongs to the State governments." is NOT arguing in favour of LESS government power, it is simply arguing in favour of the same power being exercised by a DIFFERENT government, don't you?