by Rob Natelson
Effectively defending American federalism requires us to remember that federalism was not created by the states – nor was it created for state benefit.
Federalism was fashioned by the American people – for the benefit of individuals and of the people as a whole. Justice Sandra Day O’Connor, possibly the most eminent defender of the Tenth Amendment to sit on the modern Supreme Court, put it this way:
The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.â€
People who reduce federalism to a matter of “state’s rights,†or who continue to argue for the long-discredited theory that our American union is merely a “compact†among states play into the hands of the centralizers.
The centralizers easily can point out that these “states-rights†positions are not only historically and legally inaccurate – but that they represent the same line once used to support slavery and segregation.
That’s why we must promote federalism for what it really is – a system that benefits people, and their lives and liberties. Here are some points to remember:
- The states did not, as some Tenth Amendment advocates would have it, create the federal government. The people did. Although the ratifying conventions met in individual states, the delegates were elected directly by the people for the sole purpose of judging the Constitution. State governments were deliberately bypassed.
- The Constitution was not primarily an interstate compact. That was the system of the old Confederation, which the Founders left behind.
- The people bestowed certain limited powers on the federal government. The remainder were retained by local state governments or by the people, according to the constitution of each state. As leading Founders remarked, it was like having one agent to do your legal work and another agent to run your business, while keeping the rest yourself.
- As Justice O’Connor pointed out, the major reason for dividing power this way was to create checks and balances and protect liberty.
- Another reason was efficiency: Most of the Founders recognized that, as to most issues, local government is more efficient than centralized government.
- It is true, of course, that federalism can cause inefficiencies – no system in this world is perfect. There are some national or interstate issues that the Constitution does not give the federal government power to deal with. But if we want government to handle one of those problems, the answer is an interstate compact or a constitutional amendment. The answer is never to disregard the constitutional balance. That’s a “cure†worse than the disease…
- Federalism lets people govern themselves better. And it helps protect people from special interests. For the average hard-working American, a trip to the state capital to make his views known is far easier than a trip to Washington, D.C.  Navigating the state bureaucracy is a lot easier than navigating the federal bureaucracy. Thus, the Tenth Amendment is not so much about “states’ rights†as it is about this individual right to be governed locally.
- Because federalism was established by the people to preserve liberty and not by the states for state benefit, state politicians cannot waive it. The current practice by which state politicians purport to yield citizens’ Tenth Amendment rights in exchange for federal cash is contrary to the whole spirit of the Constitution.
So let’s get the Tenth Amendment arguments right. Doing so greatly increases our chances of ultimate victory!
Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history. He is currently seeking a publisher for his latest book, The Original Constitution.
The professor gets an A on points but his argument is wasted on me and I suspect on the majority of lay people. Arguing the finer points of the Constitution is great for scholars but just confusing for most of us. Seperating the “people” from state govt. and the state govt. from fed. govt. is all well and good but are they not both products of “the people”? Unless I am missing something, the states only have the power granted by their Constitution and therefore by the people. It is just easier and less complicated to push for States Rights. Getting the fed. govt. out of local legislation is only half the battle. We as a people will still have our state govt. to content with. There will be all the same problems such as special interest groups and debating Constitutional rights under our states Constitution. But it will enable us to deal with our govt. on a local basis instead of national level.
The People did create, or authorized the creation of, the central government.
Rob said: “The current practice by which state politicians purport to yield citizens’ Tenth Amendment rights in exchange for federal cash is contrary to the whole spirit of the Constitution.â€
I wholeheartedly agree with Rob’s above statement.
However, I believe in a stricter interpretation of the Constitution than the usual he said she said gossip. Supreme Court decisions, he said she said, and Legislation is completely meaningless to the Constitution, or what the Constitution means or says in writing.
I do not read the Constitution as delegating the power to protect the People, Freedom, or Liberty to any governing body but as that power and Right is retained by the People themselves. What freedom is possible by depending or relying on government protection of it?
The physical USA is American’s (Citizenry/People) playground of Freedom and the federal government is delegated the power to protect that playground, settle squabbles between the States, and domestically very little else.
The People (Americans), not any government body or agency, are obligated to ensure “All†elected Officials honor their Oath of Office or else not be reelected.
Allan
The professor asserts that, “The states did not, as some Tenth Amendment advocates would have it, create the federal government. The people did. Although the ratifying conventions met in individual states, the delegates were elected directly by the people for the sole purpose of judging the Constitution. State governments were deliberately bypassed.”
I’m just a humble layman, but I must ask how it was that the State governments were bypassed. Did each and every resident of each and every State have the right to vote for the delegates who judged the Constitution in the ratifying convention in their State? I have my doubts.
If this was not the case, it seems problematic to claim that “the people” created the federal government instead of the States. Didn’t each State government reserve the right to set the criteria for who could cast a vote for their State’s delegates? Were non-propert holders, members of minority religious groups, women, blacks or Native American’s permitted to vote for these delegates? If each State was permitted to decide who “the people” were in their own State, that doesn’t sound like the State government was bypassed at all. Would such a bypassing of State government have even been thinkable, let alone possible in any meaningful sense at that time?
The preface to our Constitution is, “We the People of the United States”. I think the professor’s point is that the Constitution was ratified NOT by the LEGISLATURES of the various states,but by DELEGATES specially elected by the people of the various states for the sole purpose of investigating,discussing & ratifying or rejecting the proposed Constitution for the United States. So yes, state governments would have been bypassed in the ratifying process.
Re universal suffrage: Let’s rethink this. What is wrong with setting standards which a person must meet before he is deemed qualified to vote? What is so great about rounding up the ignorant & uninformed and driving them to the polls? What do the ignorant, uninformed, and even the stupid, have to contribute to the political process? Nothing but the election of the party which panders to them! On ballot initiatives which would raise property taxes, why should non-property holders be allowed to vote? Where did we get the idea that one person may properly vote to take away property from another person? Why I say, require people to pass literacy, history,and LOGIC tests before they may vote! PH
Sandra O’Connor is correct in regarding the ultimate benefit of a Federalized Constitutional Republican government were benefits for the people. However, this was not mobocracy [ Democracy ] but Republican government [Representitive government ] with a guarantee of Republican government at the State level and at the Agency [General Government ] level. At least it was until the 17th Amendment was illegally ratified. FTG
RE: PH
In the far distant past when I became of age to register to vote (21 )my father went with me to the voter registration office, as a character witness. I filled out my applcation and turned it into the three member board. After their review I was questioned about The Constitution, The Declaration of Independence, and how the three branches of government was suppose to work. After about forty-five minutes they decided that I was qualified and I was allowed to complete the process. Later the liberals decided that if you were warm blooded or had in the past had been warm blooded you were given the ” RIGHT” to vote. Remember “landslide Lyndon”. As you know government has been rotten to the core since, beholden to the elite and to the Lobbyist.
Publius/Huldah:
I wasn’t trying to argue that universal suffrage is a good thing in and of itself. Really, if government had been confined to its proper role and scope, (the protection of life, liberty and property) there would never have been such a demand for it anyway.
I just wanted to know, sincerely, how the State governments could have been bypassed in any kind of meaningful way. Even those who did elect delegates were surely doing so not as “the people” in aggregate, but separately as citizens of each State. Why didn’t they just hold a national referendum? Even if it was practical, I suspect most State governments as well as most of “the people” would have been against doing it that way.
As citizens of each State, they probably had to meet the criteria that was set by their own State’s government before they could be nominated as a delegate or even vote for one. So although it might not have been the legislature of each State that ratified the Constitution, I don’t see how this makes the federal government any less a creature of the States or more than a compact among them.
I know the preamble says, “We the people…” but that seems to leave itself open to any number of interpretations. Maybe the preamble was primarily meant to express the sentiments, purposes and hopes of the Constitution’s architects and therefore used more poetic, less legally constrictive language?
Appeal to slavery and segregation as somehow benefiting the government of the States was illogical.
Slavery and segregation were not for the benefit of the States qua states, but for the people or body politic of the States. Slavery, while perhaps morally indefensible (our forefathers did not invent slavery and most slaves were prisoners of war sold into servitude by enemy tribesmen. Ancient rules of warfare among all peoples often meant that the conquered city state was often reduced to slavery as a way of prventing the enemy from being a constant trouble like the Taliban is to us today), Slavery, while morally indefensible, I say, was guaranteed to the people where that institution existed in the Constitution. The cry of “States’ Rights” was for the people who owned slaves, not the States qua states. To appeal to slavery to justify the professor’s argument was therefore illogical.
However, it is true that ultimately “States Rights” exists for the benefit of the people and it is we the people who are being oppressed by a usurping federal judiciary and government!
Recall, if you will, that the ratbastard Hamilton was a raucus and avowed Federalist – - – think about the obligations of contract clause which has been so deftly manipulated by interested parties in sewing us up in a shroud of ‘contracts’ which have, effectively, made us indentured servants to the greedy and the needy. Then consider the interstate commerce provision; through this, and modern technology, you now have an internal passport (‘Real ID’) which will eventually permit ‘them’ to track every individual in every car, truck, bus and on every motorcycle; how did it come about that you kid ‘must have’ a so-called ‘Social Security’ number before he/she is an hour old? How did it come about that your serially numbered kid ‘must have’ an encredible series of toxic vaccines injected before he/she can go to school? Benefits of ‘Federalism’. Thomas Jefferson, that staunch and unwavering republican knew the dangers of federalism. I suggest that before anyone swallows the professor’s argument hook, line and sinker, they read The Antifederlist Papers. Federalism, so far as I can tell, was a monstrous scam run upon a people who were trusting of the people that they sent to office in the State Houses, legislatures, Congress and various administrations. Hamilton was a silver tongued devil, with an incrdible criminal intelligence, and overbore Jefferson’s arguments through rhetorical skills that have to be admired, even in a wholly evil creature of the crown; had Jefferson better articulated his oral arguments (he does not appear to have been gifted in that regard), federalism might have been stillborn, but as it is Federalism has become the monster that was under the bed all along, and is now become visible and is attempting to claim its prey, which is us.
[...] http://www.tenthamendmentcenter.com/2009/05/22/its-the-peoples-right/ [...]
Amen, Arklight. Amen.
Fearless!
May I ask in what year & in which State did you first register to vote? 60 years ago in Florida, only “freeholders” [that's "land owners" for those of you from Rio Lindo] could vote on ballot initiatives raising property taxes. WHEN did the States abandon the principle that voters should be informed? Your account was very moving.
And yes, Derek, If Congress & the other two branches stayed within the boundaries the Constitution places on them, it wouldn’t matter who got elected! And yes, the citizens of each State elected the delegates for their State. There was no national referendum because there was no “nation”. Until the 14th Amendment, citizenship was with the States (see, e.g., ART. III §2).
It really is a profoundly important point: The issue is whether ultimate sovereignty over the federal government rests with “The People” or with the States. The authors of The Federalist Papers insisted that this sovereignty rested with the People. Alexander Hamilton said, in Federalist No. 84, Para 8, that the phrase,
“We THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of American”,
was “a better recognition of popular rights” than any bills of rights.[Hamilton opposed a Bill of Rights. In No. 84, 10th Para, he shows why. He was right! I'll prove it: Art. I, §8 does not give Congress authority to pass laws about firearms or ammunition. Thus, any "law" which purports to address these is an usurpation and deserves to be treated as such. Yet the debate in recent times has been whether the 2nd Amendment "allows" private citizens to bear arms or whether it "allows" only the militia to bear arms! When our "Dear Reader" replaces one of the 5 who voted for private citizens in D.C. v. Heller (US Supreme Ct.), with an "empathetic" judges, the majority will vote that the 2nd Amendment "allows" only those in national guard and military reserves to bear arms.]
And Arklight! I respectfully submit that, like many, you misunderstand the concept of “federalism”. “Federal” refers to the FORM of our government: An alliance of States with close cultural and economic ties associated together in a “federation” with a national government to which is delegated supremacy over the States in SPECIFICALLY DEFINED AREAS. As the national government usurps more & more of the powers retained by the States or the People, THE FORM of our government becomes less & less “federal”, and more & more “national”.
And Alexander Hamilton! Oh my! I respectfully suggest that you malign a political genius & one of the staunchest defenders of Liberty we ever had! If you will study his writings in The Federalist Papers, I think you will come to agree. He said it too many times for me to quote them all, but here is a sample of what he wrote:
In Federalist No. 33, Hamilton cited Art. VI, cl.2, as showing that laws which are not pursuant to the Constitution are merely acts of usurpation and deserve to be treated as such (7th Para). He also said,
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.†(6th Para)
Did you get that? Hamilton said that when our â€creatureâ€, i.e., the federal government, usurps power, WE are to judge the conduct by the
standard of the Constitution, and WE are to take appropriate action to
“redress the injury done to the Constitutionâ€!
Hamilton, after all, considered THE PEOPLE to be “the natural guardians of the Constitutionâ€; and contemplated “a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.†(The Federalist, No. 16, 10th Para).
So, Arklight! The evils which you attribute to “federalism” are the result of “nationalism”, not “federalism”! You have it backwards!PH
This would all be a little easier to deal with and understand if the people had the one thing that is talked about the least, but is also the one thing that the Constitution describes as “necessary” to Liberty, a well-regulated citizens’ militia. I believe that people would have a much different perspective on the form of government we have here if a relationship between the people and the militia existed as it was in the times the document was written, including state laws guaranteeing such. Before you turn off and think I’m just some crazy Texan in the woods, let me say “What’s wrong with that?” Seriously though, the militia could serve multiple roles that would easily enable REAL checks and between all governments and the people, such as an alternative emergency assistance force, an alternative mass communication network, an alternative census, conducting of alternative non-governmental “People’s” referendum elections requiring a vote from at least 50% of the census total population, gathered door-to-door. I think people would VOLUNTEER for THAT!
You say “People who reduce federalism to a matter of “state’s rights,†or who continue to argue for the long-discredited theory that our American union is merely a “compact†among states play into the hands of the centralizers.”
I would like proof that the union is NOT a compact among the States. You qualify this saying “merely” to leaven the door open for the idea that ultimately it is people who are the beneficiaries of federalism, but this in no way negates the fact that the Union was a compact created by sovereign states. They may have ultimately acted by and for their citizens, but the power of the law was and is vested in the State. If a bunch of citizens arm and train a militia this is a viewed as a bunch of skin-head radicals, but if the State does it, it is a different matter entirely. The legal authority embodies in the State clothes their actions with legitimacy. So it is with the union. The union is of sovereign States. We are the UNITED STATES, not UNITED PEOPLE. Big difference.
If any thing, it is by negating the sovereignty of the States and emphasizing the protection of “people” that has been behind much of the federal governments greatest violations of the Constition. Almost invariably, it ignores the will of the people as expressed in State law to impose its own on behalf of a tiny minority. So, to say we are playing into the hands of federalizers is at best only qualifiedly true, if not wrong entirely.
PHL – with all due respect, you have it completely wrong.
It was the people, not the states, who created the federal government to be their agent for certain enumerated purposes only.
The state governments remained to be their agent for other purposes that would sometimes overlap.
The people.
The important thing to note is that the entire system was developed of the people, by the people and for the people – whether they did it through agents in their states or through agents now in a federal government.
That’s how even the Federalist supporters explained the entire process of ratification to the general public.
There is a book called “Public Plunder” by David Loth. It was written in the 1930′s and detailed a history of graft of “American” politics. Whether it was the insider trading on redemption of Continental Dollars, the success of JP Morgan reselling guns back to the US government that he had bought in auction from them at great rate for being defective, or a myriad of other events that have molded our government and the people within jurisdiction.
Indian Wars
Spanish-American War
Philippine Insurrection
Insular Cases regarding extra-constitutional federal territory
Federal Reserve
Income Tax Amendment
Direct Election of Senators
World War I & “Making the World Safe for Democracy”
Prohibition, Interdiction, Creation of Shadow Economy
Teapot Dome Scandal
Mechanisms of the Great Depression, the “New Deal”, and the Trust that is Social Security
Repeal of Prohibition
First Prohibitive Tax on Hemp
Rise of Petro-Chemical Distallate Industry
1937 Law on Eugenics and selective sterilization of people in Puerto Rico
World War II, NATO & the Marshall Plan
Korean UN Policing Action
Iranian Overthrow
Congress tapping Social Security Trust Fund
Hungarian Revolution
Vietnam US Policing Action
The Great Society and the de-valuation of US money
Civil Rights
Watergate
Swine Flu Scare and Ford
Iranian Hostages
Afghanistan
Beirut
Iran-Contra
Mena, Arkansas
Iraq/Kuwait
1993 WTC Bombing
Waco & Branch Davidians, Ruby Ridge, the list goes on and on.
I do think that is a good start on seeing the connected themes on the evolution of what has happened as factions upon factions have vied for the title of ultimate douchebag; or is that turd sandwich?!
IN THE PAST FEW YEARS THE UNITED STATES HAS GONE THRU A BAD CHANGE..AMERICA IS NOT WHAT IT USED TO BE.. THE CRIMINALS, ILLEGAL ALIENS AND THE GOVERNMENT ARE CHANGING AND RUINING THE FREEDOM. THERE ARE MORE PEOPLE ON WELFARE, WHO REFUSE TO WORK AND WANT TO LIVE OFF THE GOVERNMENT AND IT IS ENCOURAGED..RAPESTS MURDERERS,AND ALIENS ARE TURNED LOOSE TO TO OVERRUN THE HONEST WORKING PEOPLE. OUR TAXES ARE PAYING FOR THE TRASH THAT IS LEFT TO RUN FREE. OUR JAILS ARE OVER CROWDED. WE DO HAVE ELECTRIC CHAIRS. DON’T WE? THEY WERE USED BACK IN THE 40′S AND WE HAD NO CROWDED JAILS THEN. THESE PEOPLE KILL, ARE HOUSED AND FED FOR A FEW YEARS AND TURNED LOOSE.. WITHIN 3 MONTHS, THEY KILL AGAIN… SOMEONE NEEDS TO SMARTEN UP. GOD HELP US THRU THESE NEXT 4 YEARS.. AS IT WILL GET WORSE.
PH,
Have you read Tom DiLorenzo’s book, “Hamilton’s Curse”? I must confess, I own a copy but have not yet read it, although I have watched and listened to many interviews with the author about the book. I would be happy to lend you my copy if you would like to read it.
The impression I get is this: When you read the words of Hamilton in the Federalist Papers, it sounds as if he is a hard core strict constructionist. But as soon as the Constitution was ratified, Hamilton wasted no time in pushing for the federal government to authorize apparently unconstitutional measures, such as the creation of a central bank. Where does a strict constructionist find authorization for the establishment of such an institution in the Constitution? It would seem that Hamilton started “reading between the lines” and discovered new “elasticity” in the words of the document he previously had argued was very restrictive and straightforward.
I like Hamilton’s words before ratification much more than I like the activities he engaged in after ratification!
I see no reason why the ratification process could not have involved a popular referendum among all the inhabitants of the 13 States collectively before the 14th Amendment. My guess is that it was not done that way because almost no one would have been in favor of it. Isn’t it possible, even likely, that the vast majority of “the people” at that time saw the ratification process the same way that “compact theorists” of later years saw it; as an agreement among the people of 13 distinct sovereign States and not of “the people” of all 13 States in aggregate?
I admit that I could be wrong, but it seems that ultimate sovereignty over the federal government rests with the States, whose ultimate sovereignty is derived from the consent of their “people”. If I am wrong, I just want someone to explain to me why.
Derek – I’ve read a few of DiLorenzo’s books, and find them to be really good reads. Hope to get to Hamilton’s curse sometime soon too.
As far as sovereignty, I think you have it really close.
Here’s how it goes –
Ultimate sovereignty always rests with the people. Understanding during the founding time (and for a long time before that too), is that all powers not given up by the sovereign, are retained. The 10th Amendment – especially in conjunction with the 9th amendment – were pronouncements of this principle….popular sovereignty.
Why? Because people feared that a new general government would be taking on too much power. To quiet those fears supporters of the constitution made it quite clear that the sovereign was the people. That way, the new federal government would only have those powers that were delegated to it.
So, to sum it up, ultimate sovereignty rests with the people, who have employed state and federal governments to be their agents for purposes outlines in their respective constitutions.
If you want to do some deep digging on this subject, I can’t make a better recommendation than Kurt T. Lash’s paper, “The Original Meaning of an Omission.” (.pdf)
Michael Boldin makes a lot of sense when he says that “the people”, not the States, created the federal government to be their agent for certain enumerated purposes.
However, I’m just trying to imagine the average American shortly after 1787 saying something to that effect on their own without a tele-prompter. Except for the elite who had already made up the minds of average Americans for them, it is just hard for me to swallow the idea that this is what “the people” understood what they were getting into.
Of course, we all probably agree that governments (State and Federal alike) derive their just powers from the consent of the governed. But did “the people” really create the federal government in an unmediated fashion, simply bypassing the State governments? Forgive me, but I can’t help being skeptical.
It seems more likely that “the people” of each State elected delegates who understood that they were representing the citizens OF THEIR STATE.
Isn’t there some position out there that has historically understood and defended the idea that the federal government was created “by the people” of each State as citizens of their State, but not as “the people” in aggregate?
Derek – extremely important point!! I’m sorry that I was being assumptive in my last response.
There is a big difference, when referring to “the people” – between the “people of the several states” (which you are correctly alluding to), of some single, national people, which my comment probably appeared to be talking about.
The national people is incorrect. It was, in fact, the people of the several states (using state delegates or reps as their agents), creating the federal government.
And, the idea of sovereign power (that power which is not expressly delegated, is retained) was widely understood in the day. It was common knowledge.
These days, a few decades of government-run education has done a great job of destroying that understanding, instead teaching people virtually the opposite.
Michael,
I understand and agree with the author’s point that ultimately government serves the people who institute it and therefore the 10th Amendment is about people, not state governments. I was simply questioning his assertion that the union is not a compact between sovereign States. It plainly is and the name “United States” is evidence of this fact. We the people act collectively through the State. But it is the State that concluded the compact/union, not people. State legislatures ratified it. There was no direct vote by the people. And when it is amended, it is the State legislatures that ratifiy amendments. There is no direct vote by the people. By-passing the State has been one of the federal government’s tools for centralization. The 17th Amendment is a case in point, which removes the State leglislatures from representation at the Federal level and instead gives direct vote to the people, cutting the States out.
I understand the author’s point that when he argues that talk of “states’ rights” diverts attenion from the fact that it is ultimately about people. I also understand that there are some historical associations that may carry a negative ring. His point is well made and valid.
But it is also true that the federal government’s greatest usurpations have been in the name of the “right of the individual (legislative minorities)” over against the will of the majority and their representatives as embodied in State law. Thus, to say that talk of “states’ rights” plays into the hands of the centralizers is historically untrue. Talk of individual rights – the right of atheists to be free from religious symbols, the right of women to abort babies, the right of women to equal employment, the right of homosexuals to commit sodomy, etc, etc, etc” – in all these cases the centralization/federalization of local issues of law and morals have been in the name of the INDIVIDUAL against the right of the people and states. Historically, therefore, his argument is incorrect.
That was my only point.
Derek,
No, I haven’t read Tom DiLorenzo. You are so kind!
You said, “I like Hamilton’s words before ratification much more than I like the activities he engaged in after ratification!”
So do I! A central bank is unconstitutional. Hamilton, like all of us, was flawed and held some inconsistent opinions. But on the whole, he gave posterity a great gift in The Federalist Papers.
On the issue of identifying the ultimate Sovereign, all I can do is (1) assure you that Michael Boldin [and I] are telling you the absolute Truth. It is clear from The Federalist Papers that this is how Hamilton & Madison saw it. (2) The concept that ultimate sovereignty rests in The People was extremely radical – it was a complete departure from the practice in Europe. Unfortunately, with the rise of statism in this once blessed land, The People are losing that understanding. We have been conditioned to believe that “the state” [i.e., civil government] is the sovereign.
Sometimes it takes a while for paradigm shifts to be completed in one’s mind. Shift yours back to the understanding of our Framers! Do not despair! I’ve done it many times.PH
I’m glad I discovered The 10th Amendment Center and even more glad that there are so many discussions actually worth having here! These ideas are more important and more relevant than ever.
I supose that I always assumed that ultimate sovereignty rests not with, “the people” collectively but with each individual possesing reason. But don’t misunderstand me, I understand that we are only people, and can only be human, in relation to others. We are not totally independent entities and that is why we naturally form families and societies. But to paraphrase Tom Paine, society and government are not only different, they have different origins.
When it comes to “The State”, dealing with it any other way than as a sovereign individual who has the right to delegate some authority to it seems to lead to inconsistencies.
It seems impossible to prove that “the people” created the federal government by even a majority of them delegating their authority to it, let alone by a broader consensus. Likewise, it would be very difficult to document the process by which “the people” of any given State created their State government. The States are former colonies, not all of which were established by “the people”. It just seems far fetched to argue that “the people” created either the federal government or the State governments. If it can be established and not just asserted, I’m open to someone who wants to make the case.
On the other hand, it seems easy in comparison to demonstrate that 13 State governments ratified the Constitution.
I have often thought of the Constitution as a treaty entered into by 13 sovereign nations. A treaty entered into by two or more governments is binding even if the people represented by one of the governments didn’t directly give their consent to the treaty.
Now I know I’m wading in deep water and may soon need a mask and snorkel…
But if one party to the treaty violates the terms of the treaty, the other parties may consider that treaty void. What if the U.S. withdrew from the U.N.? Would the U.N. security council be able to claim with any legitimacy that it was “the people” of the U.S. that joined the U.N.,
I’m glad I discovered The 10th Amendment Center and even more glad that there are so many discussions actually worth having here! These ideas are more important and more relevant than ever.
I supose that I always assumed that ultimate sovereignty rests not with, “the people” collectively but with each individual possesing reason. But don’t misunderstand me, I understand that we are only people, and can only be human, in relation to others. We are not totally independent entities and that is why we naturally form families and societies. But to paraphrase Tom Paine, society and government are not only different, they have different origins.
When it comes to “The State”, dealing with it any other way than as a sovereign individual who has the right to delegate some authority to it seems to lead to inconsistencies.
It seems impossible to prove that “the people” created the federal government by even a majority of them delegating their authority to it, let alone by a broader consensus. Likewise, it would be very difficult to document the process by which “the people” of any given State created their State government. The States are former colonies, not all of which were established by “the people”. It just seems far fetched to argue that “the people” created either the federal government or the State governments. If it can be established and not just asserted, I’m open to someone who wants to make the case.
On the other hand, it seems easy in comparison to demonstrate that 13 State governments ratified the Constitution.
I have often thought of the Constitution as a treaty entered into by 13 sovereign nations. A treaty entered into by two or more governments is binding even if the people represented by one of the governments didn’t directly give their consent to the treaty.
Now I know I’m wading in deep water and may soon need a mask and snorkel…
But if one party to the treaty violates the terms of the treaty, the other parties may consider that treaty void. What if the U.S. withdrew from the U.N.? Would the U.N. security council be able to claim with any legitimacy that it was “the people” of the U.S. that joined the U.N.,
Sorry for the double posting. Not sure how that happened…
The hand the federal government has played to federalize local issues of law and morals has not been the “State versus the People.” It has been the individual and minorities versus the majority as embodied in State law or action.
Thus, one atheist is sufficient to get crosses banned on state/federal property; one women wants to abort and the will of the whole people/State is overturned to accomodate her; one homosexual claims it is an invasion of his right of privacy to be prosecuted for sodomy and hte will of the people/State is subverted.
Yes, the 10th Amendment is about people. But historically the “State versus the people” has not been the hand the fed’s have played to centralize all power.
It is the individual versus the people/State!
Actually, Patrick Henry Lives:
It wasn’t a few atheists who are responsible for the banning of the “Free Exercise of Religion” & “free religious speech” from the public square; it was a handful of judges on the U.S. Supreme Court who wanted to ban religion from the public square. It wasn’t one woman who wanted to kill her unborn baby – it was judges on the U.S. Supreme Court in Roe v. Wade who said that the word, “liberty”, in the 14th Amendment means that the U.S. Supreme Court could declare a Texas statute outlawing abortion unconstititonal. (They also determined that unborn babies are not “persons”.) It was judges on the U.S. Supreme Court in Lawrence v. Texas which held that the word, “liberty” in the 14th Amendment also means that they may declare unconstitutional a Texas statute criminalizing sodomy. Why, it’s right there in the Constitution: The 14th Amendment gives constitutional rights to kill babies & commit sodomy! Didn’t you know?
How did this happen? Judges, the “creatures”, abandoned the concept of strict constructionism, and replaced it with the notion that the Constitution means what THEY say it means. And the People, their “creators”, were asleep…………PH
You know, the more the problems sink-in, the more I wonder if secession really isn’t the answer. We could certainly have treaties among the states regarding defense.
For those who worry that act(s) of secession might just bring about the next Civil War, I must ask “war by whom?” If anyone thinks Obama might declare war on the states for seceding, then, we know Obama should be distrusted as a dictator. Why would anyone vote for Obama if he threatens their quest for liberty by acts of war?
If the only reason to not want your state’s rights is fear of war, then you truly fear your dictator.
Succession should only be an alternative once all other legal avenues are exhausted. In my opinion, this is going to the courts at some point and should therefore be prepared for it.
And what are the courts empowered to do? The short answer is “naught!” Sure, they could opine that one of the parties is right or wrong, but that is not exactly a cure. You know the old joke about opinions…..
10th Amendment Resolutions are swell. The more the better. But we all know that fed-gov will only relinquish power if it absolutely has to. Resolutions will not bring the relief sought. Only a willingness to secede or a Constitutional Convention proposing amendments stripping Congress of its powers (and the executive while we’re at it!) will do the job.
It sounds radical to talk of secession. But it is the usurpations of a greedy, grasping, over-reaching federal government that “radicalizes” the people under its oppressive boot heel. If you can name a single other way than Convention or secession to actually take back the power from the central government, I would like to hear it. Just go ahead and post away. I’ll be waiting.
Patrick Henry you may very well be right. It will be a court fight for sure even once states fully establish their Tenth Amendment resolutions. There will be court battles for years to come and we are not ensured of success. It will all ultimately end up un the Supreme Courts lap but they have failed us just as badly as our politicans. They have turned a blind eye to every unconstitutional law the Fed. Govt. has passed. The worse so far in my mind is the Patriot Act. We never heard a word from the court. They seem to only hear cases brought before them and leave congress strickly alone. I would like to read an essay by a knowledgable person as to the responsiblity of that court. I always thought its number one job was to monitor the legislature to keep them within bounds of their Constitutional authority. Obviously not.
Patrick Henry Lives,
“Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.â€
George Washington
Government is “force†and force is required to control it. The Constitution says in Article I, Section 2, that the People have the force of the ballot box to hire (elect) Lawmakers. The People can control who is elected to legislate (make law) and thereby can hold the elected to their Oath of Office. As a matter of fact that is the only way the People can hold the elected to their Oath – honor that Oath or get fired.
That is the Constitution’s plan; do you have a better plan to hold the elected accountably to their Oath?
Allan
Protection of State Rights
The United states shall guarantee to every state in this union a Republican form of governemt, that meaning: a limited, representative form of government under a Constitution. Congress decided this question because it was a political and not a judicial one, and therefore not one for the courts.
As in the Federal system, the state government have three branches of government: Executive, Legislative, and Judiciary. We are not a Democracy. Government is out of Contol.breaking the law
The only thing I can say about a state that prefers succession over the Bill of Rights applying to their citizens is:
Good riddance. Don’t let the door hit your ass on the way out. The rest of us will welcome those of your citizens who flee back to the United States.
Preservation of separation of powers is one thing. A very important thing. Majorities trampling the rights of minorities is another, entirely different thing. In fact, it is an evil that practically all of the founders decried.
Patrick Henry Lives,
Jefferson saw nullification as the middle course between secession and unlimited submission to an out of control federal government. These 10th Amendment resolutions are not acts of nullification but they will bring about nullification in one or more States if taken to their logical conclusion.
State legislatures and executives must retain the initiative and not be pacified, bought or backed into a corner by Washington, D.C. What will the federal government do if one or more States, supported by the citizens, begin to nullify unconstitutional federal usurpations? Loud will be the cries of “treason!†I’m sure, but that will probably be it.
A Constitutional convention is the least likely event, I would say. Nullification, State secession or even part of a State seceding from the parent State or the Union altogether are all far more likely IMHO.
If secession does occur, it could be just the inevitiable result of local people just trying to preserve law and order after the dollar declines and the federal leviathan implodes.
Ray , respectfully, I don’t believe you understand what the tenth amendment movement is about. When you see the word republican you think of the “party” when it refers to the form of govt. our founders gave us with the Constitution and Bill of Rights. It means we are a nation of laws and not majority rules. If anything right now the minority in the form of the Congress and the legislature are ruling the majority.
This is not about political party but about individual rights. If you believe you still have your freedoms in the Bill of Rights then you do not know what all the Patriot Act entails and I suggest you look it up in your search engine. Your home can now be entered without cause or warrent and you can be locked away for an indefinate period of time without being charged with a crime or being allowed to face your accuser. There are many of us who disagree in specifics but the grand thing about “the rule of law” is neither minority or majority can take these rights away from anyone.
I believe if you understood what has been done to these rights under both partys you would be on the side of the Constitution. Read what President Kennedy had to say about this. He felt it his duty to warn us just before he was killed. Go to http://trueworldhistory.com and read some of the quotes and watch some of the video’s to get a perspective of what has happen to our Constitution in the past several decades. The freedoms you think you still have are an illusion my friend and no particular party did this but the Federal Reserve and the Fed. Govt.
Nancy Russel:
The article, ‘It’s the People’s Right’, can be found on the right hand side of the home page, ‘Archive’.
No, hawks cafe doesn’t deal with 10A, or 2A, but with exposing the criminals who’ve most recently been active against the country and its people, their methods, co-conspirators, foreign connections, etc. Just as the Constitution is a comprehensive document, the struggle to recover the republic must also be comprehensive. One of the challenges for the patriot community is the fatal divisions; some are focused entirely on 2A, some on 10A, some on 1A, with not only a lack of co-ordination of effort, but open enmity between the factions. When Charlie’s in the wire, it not only doesn’t matter if the guy next to you hasn’t showered today, worrying about that instead of repelling the enemy is counterproductive.
Here is something I wrote up as a way of reigning in the federal government. The three main sources of usurpation in the legislative and judicial branches are 1) the General Welfare Clause, 2) the Commerce Clause, and 3) the 14th amendment. An amendment substantially in this form would correct many of the usurpations of the last 100 years. The States could call for a convention to propose this sort of amendment, or, as a condition of not seceding, require that both houses of Congress approve it for ratification by the States. The likilihood of such a thing seems remote, but just a few months ago so was the idea of 35 states looking at 10th amendment resolutions.
Anyway, in the end the choice comes down to either 1) living with economic ruin and slavery under an all-powerful central government, 2) secession, or 3) amending the constitution to reign in a usurping federal government.
Amendment to the Constitution
1. Strict adherence to the letter of the law being necessary for the preservation of a written constitution, the laws and Constitution of the United States shall be enforced according to their original intent, and not otherwise. The provisions of the Bills of Rights that restrain the federal government shall not be construed to be incorporated by the Fourteenth Amendment or otherwise made applicable to the States. Citizenship under Fourteenth Amendment shall not extend to children born to persons present in the United States in violation of law. Article 1, Sec. 8 grants Congress power to make regular the free flow of commerce from State to State, but its power over interstate commerce shall otherwise be limited to the extent of its power to regulate the commerce with foreign nations. What Congress cannot legislate to foreign nations, it cannot legislate to the States. The federal government possesses only limited, enumerated powers. Congress shall not have power to Tax or Spend under the General Welfare Clause except according to its enumerated powers.
2. The States shall have power to enforce this article by legislation.
The first clause enshrines “original intent†as the only permissible interpretative principle of federal law. Without it, we have no written constitution, for it can be changed at any moment by activists judges.
The second clause undoes the doctrine of selective incorporation by which a usurping federal judiciary has wrested from the people and States many of their most precious freedoms, and prevents that the limitations placed upon Congress be turned back upon the States.
The third clause corrects the problem of “anchor babies†born to person here in violation of law.
The fourth clause corrects the expansion of federal powers under the commerce clause and returns them to their original extent, removing local incidents of firearms and a myriad of other activities from its reach.
The sixth and seventh clauses end an expansive reading of the general welfare clause and declare that Congress can only tax and spend pursuant to its specific enumerated powers.
Finally, and perhaps most important of all, section two gives power to the States to nullify usurping federal action by legislation. For purposes of items falling under this amendment, the States will thus have a veto upon both Congress and the federal courts, over-riding the Supremacy clause of Article VI.
Let me respond to Ray. Majorities trampling on the rights of minorities. If there are 30,000 people living in a community and all are pleased to have a manger scene displayed at Christmas, should ONE atheist trump their desire and cause it to be forbidden? What sense does that make? That would be a minority trampling on the rights of the majority!
That is the condition of America today. The minority is given preference over the majority so that whole communities are prostrated by isolated individuals. One atheist causes the pledge of allegiance to be expunged of an offending reference to God. One homosexual trumps the will of an entire state and de-criminalizes conduct that has been deemed immoral and injurious for 1000 years! One woman intent on aborting her baby trumps the will of whole states which protect the unborn from abortion, etc.
So, by your way, the whole nation must bow before the will of minorities and forego their most basic right of self determination. Surely, it is more reasonable that the minority accept the will of the majority. Anything else is perposterous.
All governments, Local, State, and Federal, legislates outside the Constitution. So how much more talk and for how long a time should the People continue such talk, especially the Patriot community?
Amend the Constitution, heaven forbid! There is nothing wrong with the 1787 Constitution.
Every act of government must first be legislated into law and funded by legislation. Legislators are directly responsible for all unconstitutionality.
Unconstitutionality is an act of government authorized by legislation and Amendments. All unconstitutionality must be “repealed†and only Lawmakers can repeal it.
Article I, Section 1, only Congress is delegated the power to legislate. Accordingly the President, Supreme Court, or the People, and or any other entity cannot make federal legislation. All Bills (legislation) for raising federal revenue must start in the House; reference Article I, Section 7.
Article I, Section 2, “only†the People can use the ballot box to elect Congressmen (Legislators/Lawmakers) and do so every two years.
No Lawmaker in the entire USA can be “constitutionally†elected to do anything else but to “honor the Constitution’s Oath of Officeâ€; reference the last paragraph of Article VI.
Let’s talk about “enforcing†the Constitution’s Oath of Office on all elected Officials, after all that is the only thing the People can “forcibly†(ballot box) do to or about unconstitutionality (Fire Lawmakers by voting to not reelecting them). Incumbent Lawmakers greatest fear is not being reelected.
Allan
[...] It’s the People’s Right! [...]
You’re assuming the majority has a “right” to declare to a minority that they shall not have the right to life, liberty and the pursuit of happiness (in the absence of harm to any non-consenting adult). They don’t have this “right”. Period. Indeed, only individuals have rights.
Secondly, you’re wrong if you think a single individual has the power to do what you say. It’s almost always going to be a single individual that has the guts to take defense of their rights to the level required to get oppressive governments to back down, but the Supreme Court has never as far as I know, given any significant weight to a right that only one person wants to exercise.
Consider these cases class action suits, if you will. Brought by 1 person on behalf of all people in similar situations. And really, in most of these cases I strongly believe that a (mostly quiet) majority in all or almost all states agrees with the decisions. The few loud reactionaries don’t have any more right to have their will foisted on the majority even if they can manage to bully their representatives into pandering to them… either.
As to your specific complaints:
1) It’s not always atheists that complain about references to the Christian religion being foisted upon non-Christians at their own (public) expense. According to recent polls, the minority being protected is as much as 20% of most states.
Also, it’s *highly* ironic that you would choose the Pledge of Allegiance as an example here, seeing as how it’s a pledge to the *U.S.* flag, the *Republic*, and *One* Nation, *Indivisible*, with *Liberty* and *Justice* for *All*. Also, I’m sure you’re aware that “under God” was only added (by Congress, no less) during the anti-communist hysteria of the 50s. I suppose for the 175 years before that the country wasn’t “under God”.
2) In terms of specific homosexual acts, technically speaking, the states are still allowed to regulate them *if* they apply the laws equally to all people, and enforce them against heterosexual people to the same degree of rigor as against homosexual people. Anything less is anything *but* justice. Of course, they never do, which is ultimately why laws like that are violations of equality of all citizens under the law.
3) The question of abortion is a contentious one, and I’ll grant the possibility that this was an overstepping by the Court. Much depends on whether unborn fetuses are citizens accorded equal protection under the law. Some say yes, others say no. The 14th Amendment says not (only *born* or naturalized citizens are). At the moment, a strong majority says “mostly no, with strong provisos after they are viable outside the womb”. Actually, this is true in most states… generally what differs is the point at which that line is drawn, and the provisos that people deem reasonable.
The biggest problem I have with state abortion laws is that they effectively only prohibit poor women from having them. Women of any significant means can always fly or drive to a state where it is legal (as the Constitution explicitly says they have the right to do).
Indeed, a majoity of the people in this category are exactly the descendants of ex-slaves which you have elsewhere proclaimed are the only ones intended to be accorded equal protection by the original intent of the 14th amendment to prevent them from being effectively chattel.
If you really want to prohibit abortion you might want to do so explicitly in the Amendment you propose, because the Supremes could reasonably argue it doesn’t cover that.
BK: largely I agree with your position. It’s the reactionaries that want to strip rights from minorities that I object to. And I know exactly what is meant by “Republican” in the Constitution.
Indeed, coopting that term was one of the greatest marketing ploys on the part of a political party in the history of humanity. But the Democrats are just as bad in their slightly different way.
Our Constitutional Republic
Today people look to our president to deal with the unemployment problem, agricultural woes, housing programs, atomic energy, labor-management disputes,disaster relief, welfare, medicare, Social Security, education, crime, environmental issues, energy resources, radio brodcasting,food and drug administration-none of these powers are granted to the President by the Constitution. Article 2 Section 1
The Constitution states that the powers delegated to the Federal Government are few and defined. The powers reserved to the states will extend to all objects which concern the life, liberty, and property of the people and the internal order, improvement and prosperity of the states
Indeed, there are many powers usurped by the federal government, including most of the ones Richard mentions above. There are much bigger things to be worried about than the federal government stepping in to protect fundamental rights of citizens.
The only arguments I might make relate to interstate crime, interstate environmental issues (largely water table and air pollution, which generally can’t be contained to a single state), and radio broadcasting which is almost always inherently interstate (though I think the allowable realm of federal regulation of radio is quite narrow given the fed’s 1st Amendment constraints… mostly just electronically harmful cross-state interference).
Much of the (legal and otherwise) drug trade is also reasonably regulated by the feds, in the sense that they have the power to prohibit interstate trade in dangerous and/or fraudulent materials. Though, naturally, drugs remaining entirely inside a state are a state matter.
Of course, the states also frequently overstep and attempt to regulate or interfere with things that are inherently interstate or even international such as the internet, and resolutions praising or condemning various treaties and foreign governments.
Mr. Ahern you are right on the money. We are not very far from living under a King and term limits is the only thing in the way of that at present and politicans of both partys are busy trying to undo even that. What is most troublesome is that the majority accept this situation without question and even some on this board support it. No one on this board has ever lived under the true Constitution and therefore cannot miss what they have never had. Some will protest that we need a strong central govt. because we are so big with so many people but the truth is even with 350 million plus we are still a long way from the billions in China or prhaps even India. There has never been a better time for this fight as now. The media is our second strongest enemy outside of the 3 branches of govt. they an fire a politican more quickly than the voters. I give as an example Trent Lott if Ms. He was vilified in the press so badly because of a comment at Strom Thurmonds celebration that he was effectively fired from his positon as house majority leader. Our foes are many and not all so obvious.
Personally, I am not convinced that the form of government is as important to liberty as the religious temperment of the people. Anyone familiar with the history Greece and Rome can attest that republics and democracies are some of the most tumultuous and restive forms of government in history. They are marked by party strife, faction, and class antagonisms.
I believe that a Christian people will be free and prosperous regardless of the form of government under which they live, provided that government share their basic religious temperment. Our English forebears saw themselves as “freemen” even though living under a monarch. So did Biblical Isreal and countless other nations down through time.
It is not the form of government so much as that government’s fear of God, undestanding that it is a servant of the people as taught by Christ, and its respect for the rule of law.
It is the erosion of Christianity in America and the West that is leading to slavery, not the form of government per se. Liberty cannot be sustained without moral courage and resolution, of which Christianity alone provides a sufficient sourse. It alone provides the one spark in the human spirit tyrants cannot extinguish or put out. A look at the globe will show that only where Christianity is vividly alive are the people really free.
While you legal scholars duke it out you forget what got us to this point.
So let me remind you. Our federal government and some state governments became disrespectful to the individual and his propety. It cares squat about what we want or believe in. We want our respect back NOW, not tomorrow or the day after.
No! What REALLY got us to this point was the People who voted the statists into office (except for the elections which were stolen),& keep returning them to office. The problem isn’t with “government” – it’s with The People who are stupid or corrupt. We are getting the government they voted for. E.g., a District in Pennsylvania returned John Murtha to office because he brings home the pork!
Folks, the last thing we want is a Constitutional Convention (“con con”)! Our present Constitution would be on the chopping block. The statists control all 3 branches of the federal government. We could NOT control a con con. A con con is like burning brush in a dry forest on a windy day!
And THINK! Congress, the Courts, and the Executive Branch ALL IGNORE OUR CONSTITUTION! Even if we got the “clarifications” to the Constitution some people say we need, why would the 3 branches comply with the “clarifications”? They would ignore them also!
I think Prof. Natelson posted an article on this web site about a con con. Perhaps Michael Boldin can find the link for you. There were some valuable discussions there.
Folks: Our present Constitution is clear. It is a magnificent jewel of political liberty. Our problems have been caused by people ignoring it.
Is there a solution? Yes. Each of you must open up your Minds & Learn the present Constitution, teach those within your spheres of influence, go out there and find candidates who will learn it and run on it, or run for office yourself. OUR SIDE has been asleep! Now we are starting to wake up. May we wake up in time. PH
You’re wrong. A Constitutional Convention is merely for proposing amendments. They still have to go through the ratificaiton process just like any other amendment. The only difference is that where the house and senate fail to act by proposing an amendment to the States, the State can take matters into thier own hands and call for a convention where amendments may be proposed. Here, since the federal government is the offending party and can be counted on NOT to propose an amendment limiting its own power, the States must act, or else allow us to be involved in utter ruin and slavery.
Patrick Henry Lives!
1. I don’t know your qualifications to have formed such strong opinions on the wisdom of a con con. But a wise man keeps his mind open; and I hope you will read the comments below made by another attorney knowledgeable about the Constitution & American history.
http://www.tneagleforum.org/custpage.cfm/frm/30017/sec_id/30017
Former Chief Justice Warren Berger’s letter opposing a con con is on the Eagle Forum Website.
2. You also miss the logical flaw in your argument. You say:
“…since the federal government is the offending party and can be counted on NOT to propose an amendment limiting its own power, the States must act, or else allow us to be involved in utter ruin and slavery.”
Your argument is illogical because The existing Constitution ALREADY STRICTLY LIMITS the powers of the 3 branches of the federal! The powers of the 3 branches are few and defined.
SO WHY WOULD AN AMENDMENT LIMITING THE POWERS OF THE FEDERAL GOVERNMENT BE OBEYED?
3. We are doomed if the people on our side are too proud to open up their minds,listen & LEARN. Sometimes, what we think we know is just plain wrong.PH