You can sympathize with the humanitarian motives of our Libyan intervention while still doubting its constitutionality.

The Constitution prescribes the rules about how the United States is to enter a war, and the Obama administration has violated those rules.

The administration argues that the hostilities, because limited, do not rise to the level of “war,” as the Constitution uses that word.  But that position is almost surely wrong: Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition.  A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.”  (Barlow, 1772-73).  I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”

The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion.  It fought a just offensive war when it responded to an infringement of its rights short of invasion.  It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights.  Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.

A defensive war did not require a declaration.  A just offensive war did require one, although it might be called something other than “declaration of war.”  The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting.  Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.

Now: The federal government has only those powers the Constitution grants it.  The Constitution grants the federal government authority to begin and wage a defensive war: “The United States shall . . . protect each [state] against Invasion” (IV-4).  (Protection of U.S. territories is impliedly authorized as well: IV-3-2) But the Constitution grants only Congressauthority to initiate a just offensive war€”that is, an American attack to vindicate our legitimate rights: “The Congress shall have Power . . . To declare War.” (I-8-11).  It can be inferred from the document that the government has no constitutional power to wage an unjust war.

The Constitution entrusts Congress with creating the means for waging war: “To raise and support Armies” (I-8-12),  “To provide and maintain a Navy” (I-8-13), and “To provide for calling forth the Militia to . . . repel Invasions” (I-8-15).  It grants the President authority to serve as Commander-in-Chief (II-2-1).  Under the latter provision, the President can oppose an invader (engage in defensive war) without prior congressional authorization, since “The United States [not just Congress] shall . . . protect each [state] against Invasion” (IV-4).   But there is no enumerated power authorizing the President to launch an offensive war without a congressional resolution that qualifies in substance as a declaration.

Many quotations from key Founders show that is was their understanding as well. For example, James Wilson, one of the greatest Founders, told the Pennsylvania ratifying convention:

“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives. . . .”

(This quote is only one of several.)

Nevertheless, many well-meaning people have sought to find a presidential power to wage undeclared war.  In part they rely on practice arising decades, even centuries, after the Founding.  As I point out in The Original Constitution: What It Actually Said and Meant,such evidence is too remote to be a reliable source of original understanding.  The fact that the President sometimes has acted unconstitutionally does not render those acts constitutional.

The most sophisticated presidential defenders make the following argument:

*    What determines constitutional force is not how the ratifiers understood the document, but its objective “original public meaning” to the larger public;

*    the Constitution grants the President the “executive Power” (II-1-1);

*    although the Constitution does not mention undeclared wars, based on the practice of the British Crown the President’s “executive Power” included authority to initiate them.

Unfortunately for this argument, recent scholarship has largely destroyed the view that the phrase “the executive Power” conferred the King of England’s power on the President.  The most comprehensive study of the subject is Curtis A. Bradley & Martin S. Flaherty’s  article,Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004).  In addition,my own published investigation of Founding-Era legal drafting practices discovered that those practices were completely inconsistent with the conclusion that the phrase “executive Power” conferred any authority.

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As for the claim that the Constitution’s “original public meaning” trumps what the ratifiers understood, to my knowledge no one has contested the conclusions of my excruciatingly-footnoted 2007 study of Founding-Era interpretative methods.  It concluded that the Constitution was to be interpreted by the ratifiers’ understanding, with “original public meaning” being consulted only when a coherent understanding could not be found.  In the case of the war power, though, the ratifiers’ understanding is pretty clear.

Although the Obama administration’s Libya operations probably qualify as a constitutionally-authorized “just war” (because it is designed to assist an oppressed people who have risen in rebellion), launching those operations without prior congressional consent violated the Constitution.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/

Not surprisingly (I know, as an Arizonan, my pride is showing), Arizona is now one of four states this year to propose an Intrastate Commerce Act. Please note: that’s intrastate, not interstate!

The bill, which is based on model legislation written by the Tenth Amendment Center, has a name that sounds fairly innocuous, but do not be fooled! In fact, I predict that SB 1178 will startle our overlords in Washington, DC and deeply offend them in much the same way that Arizona’s immigration act, SB 1070 did.

The bill’s primary sponsors are Sen. Sylvia Allen, Sen. Linda Gray, Sen. Gail Griffin, Sen. Brenda Barton, and Sen. Judy Burges. Co-Sponsors include Sen. Frank Antenori, Sen. Andy Biggs, Sen. Al Melvin, Sen. Don Shooter and Sen. Chester Crandell.

If passed by the Arizona State Legislature and signed by the governor, SB 1178 will amend the Arizona Revised Statutes in order to provide that all goods grown, manufactured or made in Arizona and all services performed in Arizona, when such goods or services are sold, maintained, or retained in Arizona, shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce.

Wow! Now if that were not offensive enough to Washington politicians and bureaucrats, the bill goes even further and would impose the following penalties:

A. Any official, agent, or employee of the United States government or any employee of an entity providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this chapter is guilty of a class 6 felony, except that any fine imposed shall not exceed two thousand dollars.

B. Any public officer or employee of this state who enforces or attempts to enforce an act, order, law, statute, rule or regulation of the United States government in violation of this chapter is guilty of a Class 1 misdemeanor, except that any fine imposed shall not exceed five hundred dollars.

Can anyone deny that this is truly nullification legislation with teeth?

But setting aside the penalties for a moment, please allow me to unpack the concepts contained in the first part of the bill. I also hope you won’t mind if I quickly cover some history while I’m at it.

If you have been paying attention to the federal court battles concerning what has come to be known as “Obamacare”, you’ll know that Roger Vinson, Senior U.S. District Judge for the Northern District of Florida, recently declared the Obama administration’s health care overhaul to be unconstitutional. If you’ve really done your homework, you might even understand why he declared “Obamacare” to be unconstitutional. But if not, here’s how Michael Boldin, founder of the Tenth Amendment Center explains it:

“According to Vinson – and just about everyone else in the federal judiciary – the federal government actually does have the authority to control, reform, and regulate the health care industry. They’re just going about it wrong,” Michael Boldin, said.

Judge Vinson’s conclusion was, as he said,  based, “..on an application of the Commerce Clause law as it exists pursuant to the Supreme Court’s current interpretation and definition.” In other words, even though Judge Vinson may have given the people of the several states a favorable ruling this time, he’s still an unapologetic judicial supremacist who makes it clear that we are a de facto nation ruled by case law rather than a federal republic governed by the Constitution, according to its original, fixed and knowable meaning.

Congressional Commerce Clause Abuse (CCCA)

In his article Commerce Clause Abuse, Dr. Walter E. Williams, who serves on the faculty of George Mason University, wrote:“The Constitution’s Article I, Section 8, paragraph 3 gives Congress authority ‘To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes’..the original purpose of the Commerce Clause was primarily a means to eliminate trade barriers among the states. They didn’t intend for the Commerce Clause to govern so much of our lives.”

What Dr. Williams points out here is simply what James Madison explained a long time ago: That the commerce clause was intended to make trade “regular” between the states, primarily to prevent interstate tariff wars. In fact, the man who is often called The Father of the Constitution wrote:

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

No honest student of American history can conclude that a significant number of either the framers or ratifiers of the Constitution ever envisioned Congress would have plenary authority to regulate entire industries, such as the health care industry, or any form of commerce conducted entirely within an individual state’s boundaries.

Rather, as Michael Boldin asserts, “The feds are authorized to make commerce in health care across state lines, ‘regular’ – that’s for sure. But this power is far less than anything that’s been proposed by either political party in….well, probably about forever.”

What do do?

If you think that the feds are going to read Tom Wood’s new book and suddenly decide to limit their own power, or that all we need to do is elect the right people to federal office, or to obtain a favorable ruling from the Supreme Court, or that checks and balances between the three branches of the federal government will eventually deter acts of federal usurpation, I have some beach front property in Yuma, AZ that you might be interested in. You’ll have to wait a little while for California to fall into the sea, of course.

But on the other hand, if you are willing to be just a little bit more realistic, you can instead choose to recognize that although we’ve heard the promises of federal politicians before, and we know that even those who sincerely may have started out intending to roll back unconstitutional federal power (Ronald Reagan comes to my mind), the fact is that the strategy of regime change for Washington, DC has failed and will continue to fail for the foreseeable future. Pursuing the strategy of regime change for DC is like putting a band aid on a spurting arterial wound. We’re quickly running out of time and what the states need to adopt with regard to Washington, DC is a policy of containment that is more like a tourniquet!

We all know that year after year, regardless of which party dominates the so called “federal” government, its size, expense and intrusiveness continues to grow, unchecked. So finally, legislators in states like Arizona, Virginia and New Hampshire have decided to take matters into their own hands and pursue their own policy of containment. Sanity at last!

The number of states that have decided to stand up and resist the tyranny of our so called “federal” government, in order to arrest the steady consolidation of power in fewer and fewer hands is somewhat surprising, yet very inspiring. They have decided, with the support of average citizens like you, to reclaim the American Revolution by using the rightful remedy that the author of the Declaration of Independence recommended back in 1798. It’s called nullification.

In a recent post, the progressive website ThinkProgress attacked Utah Republican Mike Lee over comments he made regarding the constitutionality of federal child labor laws. In his remarks, Lee used federal child labor laws and the case against them in Hammer v. Dagenhart 247 U.S. 251 (1918) to illustrate the original meaning of our federal system and the distinct spheres of power occupied by federal and state governments under that system. In their attack, ThinkProgress, while accurately quoting the words of Sen. Lee, blatantly ignores history and turns to rhetoric in making a political argument.

The issues in the Hammer case revolved around a federal statute, passed by Congress, that prohibited goods from being shipped in interstate commerce if the business producing those goods had utilized child labor within the previous thirty days. Congress, by including the interstate commerce language, attempted to bring the statute within its constitutional grant of power. But the Supreme Court disagreed, holding that despite any “interstate” nature, the regulation of labor occurring entirely within a state was rightfully under state, and not federal, control.

When Hammer was argued and decided, the United States was emerging from the Gilded Age of the late 19^th Century when the United States experienced the largest increase in economic and population growth in its history. The legal and political culture of the late 19^th Century largely supported this growth admittedly by largely ignoring the well being and health of workers of all ages. As the 20^th Century emerged and the United States became a more industrialized economy, the rights, needs, and concerns of middle and lower class workers garnered more attention from the legal and political establishments. One outgrowth of this increased attention was concern about the moral and social implications of child labor.

That child labor was increasingly being seen in a negative light is reflected in the dissent of Justice Oliver Wendell Holmes in the Hammer case, where he refers to “the evil of premature and excessive child labor.” In this case, Justice Holmes was willing to rule with reasoning that drew on popular sentiment. The majority of the court, however, chose to rule with reasoning that relied on the plain meaning of the commerce clause and the Tenth Amendment, which left the regulation of labor conditions to the states and their police powers.

Of course, it would be naïve to ignore the fact that Hammer, as well as other Supreme Court decisions during this era, were influenced in part by political pressures. The justices of the Supreme Court are nominated and confirmed by politicians, and many of the justices, especially during this period, were nominated for their political loyalties just as much as for their legal brilliance. But the final question that one must decide is “Did the Court decide correctly?” In Hammer the answer is unquestionably yes, not because child labor was good, but because the Constitution, if it and its language is to mean anything at all, must be taken at face value.

This is obviously the position taken by Senator Lee: That the language of the Constitution has a plain meaning and our decisions about the power of state and federal government must be controlled by the plain meaning of that language. The editorialists at ThinkProgress, however, disagree, instead focusing on the immediate results of judicial fiat by taking the traditional progressive position that ends justify means.

Even this position, though, is ostensible when they disagree with the ends. Like other progressive media, ThinkProgress is on record opposing the executive overreaches of President Bush and his ambitious domestic anti-terror policies. The ends of those policies were good, on their face – to protect Americans against the “evil” of murderous terrorists. Not that I agree with the means to those ends. I, too, am on record opposing the unconstitutional policies of President Bush. But like Senator Lee hopefully is, I am a “radical tenther” who supports Constitutional faithfulness, every issue, every time.

The “radical tenther” remark draws attention to the simply rhetorical attack that ThinkProgress launched in this article. Because Senator Lee drew attention to the Hammercase and constitutional issues about New Deal politics, ThinkProgress jumps to the conclusion that “in Mike Lee’s America” we’d still have segregated lunch counters, low wages, and no healthcare or retirement security, simply because the Constitution prohibits those powers to the United States government. This rhetorical argument links to another article attacking “conservative” views on the U.S. Constitution where tenthers, textualists, and strict constructionists are accused of implicitly supporting racial and gender discrimination, elimination of the U.S. Dollar, and child labor while implicitly opposing minimum wages, education, and popular election.

The linked article implores others to “tell the truth” about their views on the Constitution. Okay, I’ll bite.

Attacks on the Constitutional validity of minimum wage laws, judicial decisions about racial and gender discrimination, federal funding of education, and modern monetary policy are well-founded in the text of the Constitution. There is no constitutional authorization allowing Congress to set a minimum wage. Most of the judicial decisions regarding discrimination were based on stretched, unprecedented readings of the commerce clause that had no basis in history or common law. Education isn’t even mentioned in the Constitution because it was not considered a concern of the national government when the Constitution was written. And our current monetary system based on paper money with no backing is expressly prohibited in the Constitution.

That’s the truth.

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But it’s also the truth that recognizing a lack of Constitutional authorization for these acts is not the same as opposing the policies. Saying Congress has no authority to regulate wages is not the same as saying wages shouldn’t be regulated. Questioning the legal reasoning in discrimination cases is not the same as agreeing with racial or gender discrimination. Recognizing that there is no constitutional authorization for the Department of Education is not the same as saying education shouldn’t be publicly funded. And, questioning the constitutionality of our current fiat money system is certainly not the same as calling for the abolition of American currency.

There, I did it. But now it’s time for ThinkProgress and other like-minded groups to do the same … tell the truth. Admit that you attack principled views of Constitutional interpretation for strictly political reasons. Admit that you’re unwilling to have a debate on the merits of one style of Constitutional construction over another. And admit that you’re willing to abandon Constitutional language when it suits your political purposes and later strictly construe the same language if it so suits your political purposes.

I, and other “radical tenthers” take another, more principled, reasoned position: Constitutional loyalty. Every issue, every time without regard to political outcome.

Roger Prather [send him email] is the Communications Coordinator for the Massachusetts Tenth Amendment Center.

With the executive branch of the federal government making Obamacare headline news once again by issuing regulations regarding end-of-life counseling – while the same law silently threatens ‘to generate over 100,000 pages of enabling regulations’ absent any congressional debate or vote – now would be an excellent time to revisit Article I, Section 1, of the U.S. Constitution.

Art. I, Sec. 1, states simply enough, ‘All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’

But is the Congress the only institution of the federal government currently exercising those legislative powers? The answer, as illustrated above, is clearly No. The bureaucracy of the executive branch is and has been unconstitutionally exercising the legislative power for decades.

And let there be no mistake: The rules and regulations issued by the executive bureaucracy are laws, though they are not called laws. The legal definition of ‘law’ should suffice to prove this. According to William Blackstone, a law is

“A rule of … conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”

(See also other legal definitions from this web site.)

Furthermore, law is ‘binding’ on the people of the land and ‘enforced by a controlling authority.’

All of these characteristics of law apply to the rules promulgated by the federal executive.

But there is only one way prescribed in the Constitution for enacting a new law: passage of a proposed bill by both the House and the Senate. The role of the executive branch is secondary; it is Congress alone that is the primary cause in matters of legislation. The President may sign or not sign a bill, in either of which cases it becomes law. He may veto a bill passed by Congress, but his veto may be overridden, in which case the bill still becomes law. (See Article I, Sec. 7.)

Other than signing, not signing, or vetoing proposed laws, the only other function of the federal executive branch with regard to legislation is ‘to take Care that the Laws be faithfully executed’ (Art. II, Sec. 3).

If it be argued that the executive branch needs to have the flexibility to write rules to execute the laws passed by Congress, even this argument has been answered in the text of the Constitution in the famous Necessary and Proper Clause (Art. I, Sec. 8): ‘The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ The legislative branch alone – not the executive branch, or any other ‘Department or Officer’ of the federal government – is granted the power to write rules governing the execution of laws it passes.

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So the Congress is supreme according to our Constitution when it comes to passing new laws.

What does this mean, then? That there is another constitutional basis for declaring many federal regulations decreed by the executive bureaucracy ‘unauthoritative, void, and of no force’, whether regarding health care, the environment, agriculture, etc.

‘Legislative supremacy’ let us call this constitutional principle, and let us define it thusly: Only the U.S. Congress may pass laws, or any rule or regulation having the characteristics of law. Should any other branch, department, or officer of the federal government issue anything purporting to have the force of law, that fraud ought to be ignored and resisted by state and local governments and the citizens themselves in the way deemed most prudent.

If any of the constitutional scholars at the Tenth Amendment Center or elsewhere would like to help clarify and buttress this principle, such aid would be gratefully received.

Finally, I wish to thank the Texas Public Policy Foundation for giving me this idea in the first place via a wise proposal of their own:

‘Our representatives in Congress can have an important role in stopping federal overreach. A simple amendment to the Administrative Procedures Act could establish that the Supremacy Clause of the Constitution (Article VI) shall not apply to regulatory action, and that in cases of conflict between an administrative agency rulemaking and state law, state law prevails.’ (Ted Cruz and Mario Loyola, Reclaiming the Constitution: Towards an Agenda for State Action, P. 16. Available for download as a PDF file here

Walt Garlington is the founder of the Louisiana State Sovereignty Committee.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

The debate in Congress over the extension of the Bush tax cuts has obscured the issue of government spending. After all, it is because members of Congress love to spend money that isn’t theirs that we “need” an income tax to begin with.

Government spending is out of control. The federal budget is fast approaching $4 trillion. The budget deficit is over a trillion dollars. The national debt will soon top $14 trillion, as it rises by billions of dollars each day.

This crisis is not just because the Democrats are in power. Under the Bush presidency for eight years and a mostly Republican Congress for six of those years a $150 billion surplus in 2001 turned into a $1 trillion deficit in 2008. The federal budget increased by over $1 trillion. The national debt doubled. And during the last six years of the Clinton presidency, it was the Republicans that controlled both the House and the Senate.

The fact that the Republicans recently regained control of the Congress won’t mean anything when it comes to reining in government spending since in their “Pledge to America” the Republicans promise to “protect our entitlement programs for seniors and future generations” and only call for a reduction in government spending to the level it was during the Bush presidency.

All the statist proposals in the Democratic and Republican parties to rein in government spending are nothing more than bandaids: baseline budgeting, a Balanced Budget Amendment, automatic across-the-board spending cuts, sunset provisions, spending increases limited to the rate of inflation, spending caps based on GDP, deficit reduction targets, budget enforcement rules, elimination of earmarks, deficit commissions, elimination of unnecessary spending, temporary freezes on certain categories of spending, rollbacks to some previous level, non-binding public voting on spending cuts, and, of course, cutting waste, fraud, and abuse.

The only way to rein in government spending is by the wholesale elimination of departments, agencies, commissions, administrations, corporations, councils, boards, and bureaus with all of their programs and personnel.

Of the sixteen executive branch Cabinet-level departments, a limited Constitutional case could be made only for the departments of State, Treasury, Justice, and Defense. Any legitimate operations of the Departments of Homeland Security and Veterans Affairs could be subsumed under the Department of Defense. This means that the functions and bureaucracies of the Departments of Agriculture, Commerce, Education, Energy, Health and Human Services, Housing and Urban Development, Interior, Labor, and Transportation should be eliminated in their entirety. The original four departments (Justice, State, Treasury, and War) might conceivably serve some useful purpose — but only if they were scaled down considerably, and especially the Defense Department, which spends most of its budget on empire and offense.

Next to go would have to be the alphabet soup of government agencies like the SEC, DEA, FEMA, FTC, FCC, OSHA, EPA, BATF, NASA, FDA, EEOC, LSC, TVA, NEA, FHA, NEH, CPB, SBA, NIH, NLRB, USAID, and NTSB.

This means no more funding for income redistribution schemes like Medicare, Medicaid, Social Security, SCHIP, food stamps, WIC, TANF, housing subsidies, foreign aid, refundable tax credits, Head Start, the National School Lunch Program, unemployment benefits, and farm subsidizes.

This also means no more funding for science, education, medical research, or climate change.

Oh, and there should be no office of surgeon general or drug czar, AIDS czar, or faith-based czar.

In other words, strictly limit government spending to only what is constitutionally authorized — just like James Madison, Grover Cleveland, and Davy Crockett believed.

When Congress appropriated $15,000 to assist some French refugees, Congressman Madison objected, saying: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

President Cleveland vetoed a bill passed by Congress to provide financial assistance to farmers suffering from a drought. In his veto message Cleveland stated:

I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.

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And Congressman Crockett responded to a congressional attempt to help the widow of a naval officer:

I will not go into an argument to prove that Congress has no power to appropriate this money as an act of charity. Every member upon this floor knows it. We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right so to appropriate a dollar of the public money.

Just a cursory reading of article I, section 8, of the Constitution, where the powers of Congress are enumerated, is enough to see that Madison, Cleveland, and Crockett hold the solution to the problem and every member of Congress that defends the welfare/warfare state — that is, every member of Congress except Ron Paul — is part of the problem.

Government spending must be reined in, by dismantling the illegitimate functions of the federal government. It is possible, it is necessary, and it is time.

Laurence M. Vance [send him mail] writes from Pensacola, FL. He is the author of Christianity and War and Other Essays Against the Warfare State and The Revolution that Wasn’t. His newest book is Rethinking the Good War. Visit his website.

Copyright © 2010 Future of Freedom Foundation

With the 219th anniversary of the adoption of the document known as Bill of Rights only hours away, every American who has graduated from high school should be able to explain the original intent of the Amendments in ten minutes or less. Unfortunately, this is not the case. The last thing the statists want is a constitutionally educated populace. Thus, government and the education system it controls continue to distort and hide the true intent of the Amendments.

For many years the statists have been attempting to convince the people of these United States that the document known as the Bill of Rights is the source of their rights and government was granted the power to determine the extent of those rights. Fortunately, there is a quick and simple way to disprove this assertion and show the true intent of the Amendments.

When the Bill of Rights was submitted to the States for ratification it contained a preamble declaring the purpose of the proposed amendments. The preamble contained three paragraphs, but most modern editions of the Bill of Rights, especially those printed by government, only include the third paragraph. This omission is intentional because a reading of the preamble shows that the first paragraph discloses the true intent of the proposed amendments.

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its (the federal government’s) powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

The sole purpose of the proposed amendments, as stated in the preamble, was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being proposed. The amendments, if adopted, would not grant the people any rights or grant the federal government the power to determine the extent of the people’s rights; they would place additional restraints on the powers of the federal government. Each restraint is either a qualified restraint or an out right denial of power.

Based on the wording of the preamble, the amendments would place constitutional prohibitions on the powers of the federal government to prevent that government from “misconstruing or abusing its powers” concerning the rights of the people.

Another way to illustrate this point was to re-write the Amendments and insert restrictive language into each Amendment except the Tenth. This re-write is structured to preserve the original intent of the Founders as expressed in the preamble to the Bill of Rights

Article I…………………… Congress is expressly denied the power to enact any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article II…………………… Because a well regulated Militia is necessary to the security of a free State, the federal government is expressly denied the power to infringe on the right of the people to keep and bear Arms.

Article III…………………… The federal government is expressly denied the power to quarter any Soldier in any house, in time of peace, without the consent of the Owner, nor in time of war, except in a manner to be prescribed by law. (This Amendment contains an exception to the restraint and authorizes Congress to enact legislation to qualify the exception.)

Article IV…………………… The federal government is expressly denied the power to infringe on the right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures, and the federal government is expressly denied the power to issue Warrants, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article V…………………… The federal government is expressly denied the power to hold any person to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall the federal government subject any person to a prosecution for the same offence to be twice put in jeopardy of life or limb; nor shall the federal government compel any person in any criminal case to be a witness against himself, nor shall the federal government deprive any person of life, liberty, or property, without due process of law; nor shall the federal government take private property for public use, without just compensation.

Article VI…………………… In all criminal prosecutions, the federal government is expressly denied the power to negate the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; nor shall the federal government deny the right to be informed of the nature and cause of the accusation; or the right to be confronted with the witnesses against him; or the right to have compulsory process for obtaining Witnesses in his favor, or the right to have the Assistance of Counsel for his defence.

Article VII…………………… In Suits at common law, where the value in controversy shall exceed twenty dollars, the federal government is expressly denied the power to negate the right to a trial by jury, and no fact tried by a jury shall be otherwise re-examined in any federal Court, than according to the rules of the common law.

Article VIII…………………… The federal government is expressly denied the power to impose excessive bail, excessive fines, or cruel and unusual punishments.

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Article IX…………………… The enumeration in the Constitution of certain rights, shall not be construed to grant the federal government the power to deny or disparage others retained by the people.

Article X…………………… The powers not delegated to the federal government by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since each Amendment is either a qualified restraint on the exercise of power or an out right denial of power or a combination thereof, the insertion of restrictive phrases like “the federal government is expressly denied the power” is consistent with the original intent of the Amendments.

As shown by this re-write of the Bill of Rights, none of the Amendments define or limit the extent of the individual rights of the people. The Amendments do, however, define and enumerate the extent of the restraints placed on the powers of the federal government concerning the rights of the people and the powers reserved to the States.

Contrary to popular belief, the Amendments commonly known as the Bill of Rights are simply enumerated restraints on the powers of the federal government and an extension of the system of limited government established by the Constitution.

Bob Greenslade [send him email] has been writing for www.thepriceofliberty.org since 2003.

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Did the Founders’ Constitution give Congress the power to restrict immigration?  Or was this a subject reserved to the states?

The question has come to the fore in recent months because of the controversy surrounding the Arizona immigration law.   My own search for the answer offers some important lessons about constitutional interpretation.

The Constitution, as readers of this website know, grants Congress only certain enumerated federal powers.  About half of these are found in Article I, Section 8, while the rest are scattered throughout other parts of the document.  Yet none of those powers explicitly mentions immigration.

This apparent silence has led some to suggest that immigration was left exclusively to state control.  However, the Founders gave primary control over foreign affairs to the federal government, and immigration (and emigration) was an important aspect of foreign affairs in the eighteenth century.   Also, Article I, Section 9, Clause 1, which prohibited Congress from prohibiting before 1808 the “Migration” of free people as well as “Importation” of slaves presupposed a congressional power to prohibit or restrict immigration after 1808.

But if Congress has power to regulate immigration, where in the Constitution was it granted?

Some writers have argued that it was part of Congress’s authority to “regulate Commerce with foreign Nations.”  For a while, I was misled into accepting this position.

As I thought about it more, I became troubled.  From reviewing hundreds of eighteenth-century sources, I had learned that “commerce” nearly always referred to the activities of merchants and certain closely-related activities.  These activities certainly encompassed travel for business purposes and travel by ship or other conveyance.  But constitutional scholar David Kopel pointed out to me that those activities did not include the fellow who hoofed it over the international border to live in the United States.  An immigrant of that description was not engaged in “commerce,” as the Constitution uses the word.

So I began another search to learn whether there was a federal power over immigration, and if so where it came from.  Eighteenth-century law provided the answer – not commercial law, but international law.

Article I, Section 8, Clause 10 of the Constitution granted power to Congress to “define and punish . . . Offences against the Law of Nations.”  I decided to dig more deeply into the eighteenth century legal sources to determine whether that might include authority over immigration.  Sure enough, it turns out that during the Founding Era, restrictions over immigration and emigration comprised a well-recognized branch of the “Law of Nations.”  In other words, Congress’s power to “define and punish . . . Offenses against the Law of Nations” included authority to “define” immigration rules and “punish” those who violated them.  An explanation appears in latest update of my book, The Original Constitution: What It Really Said and Meant .

Why is this constitutional detective story significant?  First, clarifies why the constitutional text assumes that after 1808 Congress could regulate “Migration” from foreign lands.  Second, it clarifies that Congress cannot use the interstate commerce power to bar non-commercial travel within the United States.  Third, it knocks one of the props out from under an argument that, however silly, is solemnly advanced by some “liberal” writers – that “commerce” included non-business travel, and therefore that “commerce” also included nearly all other human relationships.

Finally, this story underscores a point I explain for the layperson in The Original Constitution: When the Constitution is unclear, eighteenth century law offers us valuable trail marks toward the truth.

Rob Natelson, a leading scholar of the Founding Era, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Golden, Colorado and Senior Fellow at the Goldwater Institute in Phoenix. He retired from the University of Montana earlier this year, where he taught Constitutional Law.

The history of the tenth amendment to the U.S. Constitution provides an insightful look into the fears and concerns shared by the founders of this nation. In the Federalist/Anti-Federalist duel over the nature of the proposed federal government and the Constitution’s ability to both empower and restrain it, some individuals proved more prescient than others in warning about the creature exceeding the powers of its creators and continually assuming new authority.

It was hoped that the plain language of the last amendment in the Bill of Rights would clearly affirm the fidelity with which officials must adhere to the Constitution. Its language is succinct and its meaning clear: any powers not delegated to the federal government are denied it, and thus reserved to the states and to the people.

Interestingly, this amendment has become commonly referred to as a “truism”—a statement which is obviously true, and which provides no new insight or meaning. Examples of truisms are “where there is smoke, there is fire”, “torture is barbaric”, and “abuse of power comes as no surprise”. The Supreme Court stated in 1931, in United States v. Sprague, that the tenth amendment “added nothing to the [Constitution] as originally ratified.” A decade later, they similarly wrote:

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers…

If the denial to the federal government of any undelegated power is indeed a truism, then why has that entity repeatedly exercised authority for powers it was never given by the states? It is because the tenth amendment is a false truism: a statement to which many give lip service, but in which few truly believe. In short, it is not true. History, of course, bears out the reality that it indeed is untrue, despite its plain language and generally understood implications. It should be true, and ideally would indeed be little more than an unnecessary truism.

Ignored though it may be, the tenth amendment provides advocates of limited government and state sovereignty a fulcrum upon which to hinge their efforts. We can and should work to make this amendment a truism in fact—a statement that is largely unnecessary, because internal and external restraints force the federal government to operate only within the powers delegated in the Constitution.

Connor Boyack [send him mail] is the state chapter coordinator for the Utah Tenth Amendment Center. He is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.

Quote of the Day: “All substances are poisons: there is none which is not a poison. The right dose differentiates a poison and a remedy.” — Paracelsus (1493-1541)

The baseball pitcher, Roger Clemens, is in the news. He has been charged with the supposed crime of lying to the politicians in Congress about his use of steroids.

* How should we think about this?
* What are the Constitutional issues involved?

To answer these questions we offer you some imaginary testimony — things Roger Clemens could have said to Congress, instead of what he did say.

* You’ve heard of people “pleading the 5th” — invoking the 5th Amendment’s protection against self incrimination, but . . .
* James Wilson argues that Clemens should have “plead the 10th” — invoking the 10th Amendment’s limitation of federal power.
* You’ll see why when you read the imaginary testimony below.

An earlier version of this was published on Thursday, January 10, 2008, when Clemens was first called to testify before Congress. This slightly edited version makes points that are just as relevant now.

*******

Has anyone ever refused to answer a question from a federal inquisitor on Tenth Amendment grounds? I don’t know, but I’d love to hear it from Roger Clemens when he testifies at a House Oversight and Government Reform Committee next month:

“Mr. Chairman, I have read the Constitution and it does not grant you authority to hold a hearing on steroid use. Therefore, I will exercise my rights as an American citizen under the Tenth Amendment, and my natural rights as a human being, by refusing to answer your questions.

“But let me clarify one thing: I do see under Article I, Section 8 of the Constitution that Congress has the authority to regulate commerce among the states and with foreign nations. It’s possible that this includes anything that relates to the selling of goods across state lines. I will therefore affirm that . . .

“I do not know how or where steroids are produced or distributed, and even if I may have known someone who sold steroids, I never saw him or her transport them across state lines. Therefore . . .

“To the extent that a Congressional hearing on steroids might conceivably be Constitutionally legitimate, because the steroids may have been produced in one state and sold in another, I do not have any information to help you.

“And to the extent that this hearing is illegitimate because there is no federal power to regulate such substances, I refuse to help you, and instead suggest that you obey the Constitutional limits on your power.

“My non-cooperation does not mean that I endorse performance-enhancing drugs in baseball or anywhere else. Major League Baseball is a private organization, and has the right to ban steroid use, and suspend or fine those who disobey. I can see the merit in this. Young men shouldn’t have to choose between a huge paycheck today and poor health tomorrow. So . . .

“I agree with Major League Baseball’s decision to ban steroids, but your help isn’t needed. Tens of billions of dollars have been squandered on waste, fraud, and abuse in Iraq, yet you insist on holding a hearing on a problem that the private sector is taking care of by itself.

“The Constitution you have sworn to obey gives Congress few and specific powers. Prohibiting individual drug use is not among them. Such things are clearly left to the states and to “the people,” as the Tenth Amendment says.

“If steroid possession or use should be illegal, the states should have laws and enforce them. But better yet, if drugs are so bad, the private sector could provide drugs tests, and indeed much of the private sector, including baseball, already does this. We do not need federal police and federal prisons warehousing thousands of non-violent drug dealers and drug users. The whole War on Drugs, of which the War on Steroids is a part, is a Constitutional travesty.

“I will not defend steroid-dealers, or any other kind of drug-dealer, but if they are bad, you members of this Committee are much worse. At least steroid-dealers serve willing customers, whereas you use threats of violence against the unwilling, as you did when you forced me to appear before you today.

“The federal republic was formed to provide an internal free-trade zone and a common foreign policy for the states. The federal government has the power to arrest and try people in only a few narrow areas, such as treason and counterfeiting. Steroid use may be dangerous. Steroid use may possibly be immoral. But steroid use is none of your business.

“I do not recognize the legitimacy of this hearing. I will now leave.”

The Downsize DC Foundation is a non-profit organization organized as a 501(c)(3) which means that contributions are tax-deductible to those who itemize. The Downsize DC Foundation has a public education mission. Specifically, we seek to demonstrate that small government — Downsizing DC — leads to Human Progress.

What is Usurpation?

If there is a term that I wish would become a household word to be used again by every American in their daily political discussions, it would be the word “usurpation”. Yes, I would love it even more if average Americans would add to that list the words: “Nullification“, “interposition” and the phrase, “the principles of ’98“. However, in order to understand the meaning of those words in their political context, you have to understand usurpation. Before you can discover an effective solution, you have to correctly identify and understand the problem.

Usurpation is the unauthorized, unlawful exercise of power. Whenever a person, department or branch of the government (federal, state, or local) usurps, they assume undelegated powers and are therefore acting outside the law.

Our Constitution (the supreme law of the land), created a federal government of strictly limited, enumerated powers when it was ratified by the people’s delegates in their respective state conventions. These states were not created by the Constitution, beacuse they already existed.

As part of this new constitutional contract between the people of the several states, their respective state governments and the federal government, the people of each state (as opposed to one American people as a whole), delegated a few, carefully defined powers to the new federal government. They did so with the understanding that these powers could be revoked if necessary. Furthermore, all the other powers which they did not loan to the federal government, they either retained for themselves or delegated back to their state governments. Each state’s constitution differs slightly, but all of them guarantee their citizens a republican form of government.

Whenever the people who make up the federal government, either as individuals, as departments or as branches, exercise power not expressly delegated to them as specified in the Constitution, they are usurping the authority of either the states or the people. Why? Because as the 10th Amendment makes it clear:

“All 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 Bane of Free Governments

George Washington warned against the dangers of usurpation. He called it ‘the weapon by which free governments are destroyed”.  He urged Americans to guard against it and reject it for the evil that it is. In his farewell address, he wrote:

“If in the opinion of the People the distribution or modification of the Constitutional powers be in any particular wrong,let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

As Obama likes to say, “Let me be clear”. When the federal government steps beyond the boundaries that are specifically drawn around it by the Constitution and its amendments, it isn’t abusing powers that it does have, it’s usurping powers that it doesn’t have.

Question: What should the people of the several states’ reaction to federal usurpation be?

Answer: Swift and resolute action in the form of nullification and/or interposition by, with and through our state governments and their county and local subordinates.

In such cases, we must not exercise patience and wait to “Vote the bums out” in 2012 or even as soon as 2010! We should do that when the time comes, yes. But in the meantime, to allow our state governments to wait until the usurpers are removed from office through elections would be to consent to a dangerous dereliction of their duty to protect our constitutional rights.

What is Nullification?

In 1798, Thomas Jefferson wrote the Kentucky Resolutions in response to the Alien and Sedition Acts, which was one of the federal government’s earliest acts of usurpation. An early draft of it began:

“The several states composing the United States of America are not united on the principle of unlimited submission to their general government”

and

“where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”

Nullification is a state’s decision to render a particular federal law that it deems unconstitutional void and inoperative, or non-effective, within the boundaries of that state. It is a process which can unfold in a variety of ways. It may involve formal legislation, or it may not. I could include court battles, but not necessarily. Interposition by state and local officials, such as your state’s Attorney General or elected county sheriff might be required, but not always. A few times in the past, state nullification conventions have even been convened, but this has been the exception, not the rule.

The process of nullification will look different in each state, according to the particular issue and the social and political culture of that state’s people. But understand, although it’s not a ‘silver bullet”, nullification does work! Don’t let anyone feed you a bunch of phony historical narratives. Do your own study of the history of nullification and see for yourself.

Finally, as George Washington wrote, let there be no change by usurpation! Instead, let us work with our elected state officials to nullify acts of federal usurpation and reclaim the sovereignty that is every American’s birthright.