All that is your opinion of how it should have been construed on your part. As I said way above, the Constitution means exactly what the SCOTUS says it means. Nothing more and nothing less. Constitutional scholars' opinions mean not a whit. We have to live in the real world...
Of course we have to live in the real world. If someone goes into a federal court and denies the court has jurisdiction over any power not enumerated in the Constitution is apt to get a judicial decision he does not like (or, alternatively, be committed to an insane asylum).
I guess my views are colored by readings of Thomas Jefferson, who said “The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric."
If the people in their constitution-making capacity say, Federal government, “You cannot do x,†(and I believe the people of the United States have said as much) and then their servant, the court, says, “No, I will
not respect that limit. The Constitution says what
I say it means.†That strikes me as an elitist view and is kind of an insult to the idea that a people can govern themselves.
Lincoln said, “the intention of the lawgiver is the law.†When it comes to adopting a constitution, the people of the states were the lawgivers. I am not sure what the people are supposed to do about that level of insubordination by the court (and it is insubordination, when the court says, screw you people. I’m going to do what
I want to do because
I am unelected and unaccountable). They could impeach/remove the violator and amend the Constitution, but that puts the burden on the people. And what is to say their servant, the court, will respect this
new limit any more than it did the previous limit? Conlaw ≠case law, despite how despite how conlaw is taught in law schools. Constitutional law predates the first federal case, and I believe education of lawyers and especially judges ought to include readings of the state conventions that ratified the Constitution, where (as Madison said), it “
rec[eived] all the authority which it possesses.â€Â
Or maybe, this is the equivalent of constitutional deism. Among the Founders, Deists believed that the Almighty created the universe, wound up the “celestial clock,†set it running, and walked away. Constitutional deists would argue that the Founders created the system, got it started, and then forever surrendered control to the federal authorities. As long as justices are nominated by the president and confirmed by the senate, then any decision they made is legitimate. Two problems exist with this view. First, there is no record of any Founder favoring unlimited submission to federal usurpation but, (second), on the contrary, made provisions for resistance, of which the 2nd amendment is part.
I just like to take every opportunity to remind federal judges that the people, in their constitution-making authority, already debated and decided
against unenumerated federal powers. There are no legitimate “penumbras or emanations.†To argue for them is self-disqualifying. It demonstrates
ipso facto that the speaker does not know what he is talking about.
I would add, that if there was to be unrestrained submission to federal authorities,
the one branch the Founders were look to
least would be the unelected, unaccountable judiciary.
My critique of the “law schools say the Constitution means what the court says it does†school is that the evidence and argumentation indicate the Founders clearly intended the federal government to be limited to the powers expressly enumerated. The judges, on the other hand, have “it says so because I
want it to be so.â€Â
In conclusion, it is possible that the court refused to overturn the state statute because they agreed, at least to some degree, with the concept of enumerated federal powers.
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