“I would not have the Justice Department prosecuting and raiding medical marijuana users. It’s not a good use of our resources.” So said presidential candidate, Senator Barack Obama, at a 2007 campaign event in Nashua, NH. And although proponents of medical marijuana later had reason to doubt him after his DEA agents raided a California dispensary, Attorney General Eric Holder soon reassured everyone that there would be change.

After a press conference held by Holder that took place shortly after the president’s inauguration, many celebrated what they interpreted as the fulfilment of his earlier promise that under his administration, the Justice Department would no longer raid medical marijuana dispensaries that were established legally under state law.

But was any such a promise in fact ever made? If one examines Obama’s campaign promises regarding medical marijuana and listens carefully to the answer Eric Holder gave at the press conference mentioned above, it’s possible to conclude that no protection or immunity was ever promised for organizations or individuals that cultivate or distribute medical marijuana in any state for any reason. Here’s what was actually said at the press conference that got so much attention.

A reporter made an observation and asked Holder a question about medical marijuana, saying:

“Right after the inauguration there were some raids on California medical marijuana dispensaries. Was that a deliberate decision by the Justice Department..do you expect those raids to continue?”

Holder responded to the question by saying:

“No..”, but then suddenly, before he could continue, Holder was interrupted by the same reporter, who happened to have microphone trouble at that same moment, making it almost impossible to hear what he said. One can make out the word “campaign”, but that’s about it. In any case, after the interruption, Holder continued. But his response became much more ambiguous. He said:

“What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. What he said during the campaign is now American policy.”

Just what did Obama say during the campaign? While never promising voters safety from federal raids, arrest or prosecution, Candidate Obama made numerous statements that he did not believe raiding medical marijuana users should or would be a top priority of the Justice Department under his administration.  In fact, he put forth the following statement during a July of 2007 town hall meeting in Manchester, New Hampshire:  ”The Justice Department going after sick individuals using [marijuana] as a palliative instead of going after serious criminals makes no sense.”

In a statement made during a November of 2007 town hall meeting in Iowa he seems to support the use of medical marijuana as a means of prescribed pain relief.

“My attitude is if the science and the doctors suggest that the best palliative care and the way to relieve pain and suffering is medical marijuana then that’s something I’m open to because there’s no difference between that and morphine when it comes to just giving people relief from pain. But I want to do it under strict guidelines. I want it prescribed in the same way that other painkillers or palliative drugs are prescribed.”

While relaying these assurances during the campaign, they are certainly not reflected in the Justice Department’s policies these days, at least when it comes to dispensaries.  It seems in fact the the DOJ has taken a more direct approach, through it’s US Attorneys.

Threatening Letters

Earlier this month Governor Chafee of Rhode Island received an unsolicited letter from U.S. Attorney Peter Neronha. The letter made it clear that the Justice Department still considers marijuana cultivation and distribution to be a violation of federal law, even if done in accordance with state laws in places where medical marijuana is permitted. The letter lists potential actions the Justice Department might consider in reaction to what it deems to be violations of federal drug laws, including criminal prosecution of those involved in the cultivation and distribution of medical marijuana.

Other states that have received similar letters include Washington, California, Colorado, Vermont and Arizona. And while some states, like Vermont, are proceeding with legislation to legalize the medicinal use of medical marijuana anyway, other states seem to have been deterred. Washington’s Governor Christine Gregoire, for example, vetoed most sections of  S.B. 5073, which would have licensed dispensaries and protected patients from arrest. In other states, such as Arizona, where a law allowing medical marijuana has already passed, the implementation of certain measures now mandated by state law, such as the licensing of dispensaries, have been put on hold, pending the outcome of a federal court case.

Arizona’s Attorney General, Tom Horne, filed a lawsuit in federal court shortly after Department of Health Services Director, Will Humble, received a letter from U.S. Attorney Dennis Burke, warning him that:

“Compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution.” And that, “The United States Attorney’s Office for the District of Arizona (“the USAO”) will continue to vigorously prosecute individuals and organizations that participate in unlawful manufacturing, distribution and marketing activity involving  marijuana, even if such activities are permitted under state law.” [Emphasis added]

The complaint, filed by the Arizona AG names U.S. Attorney General Eric Holder and U.S. Attorney Dennis Burke as defendants and seeks a declaratory judgment, in order to resolve competing state and federal pressures. But even if the lawsuit is a sincere effort to obtain clarification and is not a mere pretext to delay the implementation of the medical marijuana law, is it really worth the delay and expense?

Enough is Enough

Both Governor Brewer and the Attorney General could save Arizonans a lot of time and money by admitting that everyone knows what the outcome will be already. The federal judiciary will claim what it has been claiming for decades: That federal law always trumps state law because of the “supremacy clause”. This has almost always been the court’s opinion, regardless of how deliberate, palpable or dangerous a violation of the Constitution the federal “law” in question might be.

For decades, the U.S. Supreme Court has engaged in naked judicial usurpation of the states’ reserved powers, by declaring that Congress has the constitutional authority to regulate or ban a plant that is cultivated, distributed and consumed, all within a state’s boundaries. Even if this plant never leaves Arizona, the Supreme Court says Congress has the authority to outlaw it because of the Constitution’s “commerce clause”.

This is a completely perverted interpretation of the “commerce clause”, of course. After all, the “commerce clause” simply states thatCongress shall have power, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. But what can one expect from a group of activist judges that one blogger described as nine unelected and unaccountable bureaucratic central planners who detest the limits of the Constitution?

The fact is that despite decades of case law, the federal government has no genuine constitutional authority to regulate marijuana, medical or otherwise, that is never transported across state lines for commercial purposes. The President knows it; the Attorney General knows it; Governor Brewer knows it, and those of us who know anything about the Constitution’s original meaning and intent know it. And they know we know it!

Isn’t it time that Governors and state Attorneys General stopped wasting our precious time and money playing these silly legal games, grow a spine, and actually fulfill the oath they took to support and defend the Constitution, including the Tenth Amendment? If the people of a state decide in their sovereign capacity that marijuana should be legal, for any reason, or no particular reason at all, then their representatives in state government need to tell the folks in Washington, D.C., in no uncertain terms, that they have no say in the matter.

This is the system of vertical checks and balances that the Constitution, as it was understood by those who ratified it, established. So when it comes to decisions that the Constitution clearly leaves to the states or to the people, the time is long overdue for those who claim to be our public servants on the state level, to quit begging Washington, D.C. for permission and to start doing a little more checking and balancing already!

Bernie LaForest is the Outreach Director for the Wisconsin Tenth Amendment Center.

Many Americans forget the role that states played during the American Revolution and in the formative years of the United States. And many North Carolinians forget the valuable role that our state played in that war and in constitutional thought. This memory loss has contributed greatly to chipping away at the federalist foundation of the American form of government.

We have an opportunity to revisit a crucial chapter of that history Tuesday, when North Carolina commemorates the 235th anniversary of the Halifax Resolves. With the adoption of the Resolves, North Carolina became the first colony to declare independence from the crown, nearly three months before the Continental Congress announced the Declaration of Independence in July 1776. The General Assembly will mark the anniversary by holding session in the Capitol Building.

Definitions are important for a proper historical understanding of the founding era. Let’s consider the Declaration of Independence — the 29 grievances against King George III listed by the American colonies. The words “State” or “States” are mentioned throughout, and the “united States of America” complained about the monarch’s abuse of power. The capitalization of states is important. Americans meant something different when using the word state then than they do nowadays.

Today, states act more like functionaries of the national government, and state legislatures fear losing national money and therefore implement national programs that legislators might otherwise reject. When the Founders used “State” in 1776 and in 1789, a state possessed more sovereignty that it does now, and it was more on par with England and France than with its counterparts such as Yorkshire in England or Brittany in France.

Americans also use “Congress” differently now, too. In the late 1700s, the word was understood to mean a meeting of delegates from sovereign states who voted on matters. This understanding derived from The Congress of Westphalia (1648), in which delegates from various sovereigns voted on a peace treaty and its provisions and thereby ended the Thirty Years War and the Eighty Years War in Europe.

I hear federalism (or states’ rights) mentioned now on radio and television talk shows more than I’ve heard in some time. That’s good. But in an age when even conservatives have adopted a modern, political mind-set and believe all answers originate in Washington, D.C., history needs to be taught now — maybe more than ever. Because as the prolific, conservative political thinker Russell Kirk reminds readers in his The Conservative Constitution, all political terms have a history, and even good statesmen can commit egregious errors if they are ignorant of those histories.

The Declaration of Independence is an important document, to be sure. But Americans view it many times with an anachronistic lens that distorts the past and obscures the documents’ federalist underpinnings. Americans, many of them at least, are unaware that many states basically had declared their independence from Great Britain before the colonies did collectively. In North Carolina, The Fourth Provincial Congress empowered delegates to vote for independence with delegates from other states. Virginia, to name another example, acted similarly a couple months later.

It was a great concern for North Carolinians, and colonists elsewhere, to know that their state approved such an action, and many would never have approved the Declaration of Independence without the Halifax Resolves adoption.

The last paragraph of the Halifax Resolves reads: “Resolved that the delegates for this Colony in the Continental Congress be impowered to concur with the delegates of the other Colonies in declaring Independency, and forming foreign Alliances, reserving to this Colony the Sole, and Exclusive right of forming a Constitution and Laws for this Colony, and of appointing delegates from time to time (under the direction of a general Representation thereof) to meet the delegates of the other Colonies for such purposes as shall be hereafter pointed out.”

The Declaration of Independence was not written in a top-down approach in which national leaders had an idea, expressed it, and state leaders followed suit. It was an approach that came from the bottom-up — from the colonies, from the states.

First, there was the Halifax Resolves. Then there was the Declaration of Independence.

Originally published in CarolinaJournal.com – reposted here with permission of the author.

Troy Kickler [send him email] has been Director of the North Carolina History Project since August 2005. He holds an M.S. in Social Studies Education from North Carolina A&T State University and a Ph.D. in history from the University of Tennessee. His specialty areas are nineteenth-century U.S., Civil War and Reconstruction, African American, and religious history.

Yuri N. Maltsev worked as an economist on Mikhail Gorbachev’s economic reform team before defecting to the United States. Thankfully, he managed to immigrate to the United States without stopping in Siberia. Today he teaches economics at Carthage College and is a senior fellow of the Mises Institute. In a recent speech he gave in Florida, which was part of The Mises Circle in Naples, the former Soviet economist explained to the audience that in truth, all governments are socialist. Yes, that’s right…When it comes to governments, it’s only a question of the quantity of their socialist content.

Shortly after the midterm elections last year, columnist Gene DeNardo made a similar point in an article that appeared at NolanChart.com

“Believing that certain forms of the state or certain forms of governing are socialist and certain forms are ‘free’ is erroneous and a bit ridiculous. All governing states are socialist by nature. The state by definition derives its control and power to enforce its monopoly by confiscating and redistributing the resources of its populace. It cannot survive without acting in this manner. While it may not directly control the ‘means of production’, to ensure its survival and growth it will control the necessary proportion of the product of those same productive means.

Attempting to try to ‘unsocialize’ the state is futile. One political party referring to the other as ‘socialist’ is hysterical. All politics that exist within the state monopoly are only variations on the question of who the wealth will come from and where it will go. This has always been the nature of the state.”

But can a government exist that does not confiscate and redistribute the resources of its populace? In principle, I tend to think so, just as there might exist certain forms of voluntary socialism that redistribute without confiscation. In the broadest sense, governments are simply authorities that establish and maintain order, and (hopefully) justice, according to a system of law. If such a government can perform these functions with the unanimous consent of the governed and without redistributing wealth, then it would qualify as a non-socialist government, in my humble opinion.

But unless you’re are dealing with such a non-coercive government that does not redistribute wealth, you are dealing with a socialist government. You may be dealing with a big “S” socialist government that has a complete monopoly over vast territories, spanning multiple time zones, or you may be dealing with a small “s” socialist government in your state, county, city or town. But because almost all governments are based on socialism, Maltsev asserts that they can’t be reformed, “fixed” or ever made to run efficiently the way a business can in the private (voluntary), sector. The closest we’ll ever get to subjecting governments to market discipline, is by containing them, keeping them weak and dividing them up into as many competing jurisdictions as possible.

If we fail to do so and allow the consolidation of power that Jefferson, Madison and other founders feared, the result can be a dystopian nightmare, like the one Yuri Maltsev managed to escape from. On the other hand, if we succeed in doing so, we may force socialist governments in the U.S. to compete with each other, resulting in a greater number of freer and more prosperous political societies. Such an arrangement is called federalism, and I believe that it would naturally tend to prevent big “S” socialism from becoming a permanent feature of the federal government and gradually diminish small “s” socialism among the several states, as long as Americans remain free to move from one state to another.

Listening to Yuri N. Maltsev’s speech validated my belief that the federal government cannot be “fixed”. It also reinforced my conviction that Americans in one state shouldn’t be in the business of arguing with people of other states, about just how much socialism they ought to embrace or reject. Every state has a different level of acceptable socialism, but they are all socialist to one degree or another.

Now I’m not saying Americans residing in different states shouldn’t dialog with each other or coordinate their efforts when it’s mutually advantageous. But when more populous states choose to use their disproportionate influence in Congress or their greater number of electoral votes to elect a president who they know will usurp the authority of the states and micromanage their affairs, it violates the Constitution and is a recipe for political strife and disunion.

The Constitution authorizes a federal government of strictly limited powers, which are to be exercised for a few, carefully defined purposes. And both elected representatives and a the people the are supposed to represent, need to be reminded that the Constitution is a compact among the states, which are supposed to function as fifty competing laboratories of liberty, as it were.

After reading and listening to numerous questions and comments about federalism from people on the Internet and on various talk radio shows, I’ve concluded that there is still a great deal of confusion about what exactly federalism is and what it is not.

Merriam-Webster’s dictionary defines federalism as:

“..the distribution of power in an organization (as a government) between a central authority and the constituent units — compare centralism.”

The same dictionary defines centralism as:

“..the concentration of power and control in the central authority of an organization (as a political or educational system).”

These are not perfect definitions for the purposes of this essay, but you’ll notice one thing. Neither definitions mention the 18th century American political factions that came to be commonly known as the Federalists and the Anti-Federalists. Rather, the definitions reflect a more worldwide understanding of the concept of true federalism, which favors the decentralization, rather than the consolidation of political power.

Pre-Ratification

Let me assure you that the principles of true federalism are not synonymous with the political platform of the American political party that originated in the 18th century and came to be known as the Federalists.

For example, on page 90 of his book, The Original Constitution: What it Actually Said and Meant, Robert G. Natelson points out how Alexander Hamilton, who is usually identified by most historians as a Federalist, “..did not share most of the Founders’ view that government should be strictly limited. In fact, he may have been a secret monarchist. Whether or not that was true, he certainly represented the ‘big government’ extreme on the American political spectrum of his day.”

I would call that an understatement in one sense. But either way, ask yourself, according to the definitions found in Merriam-Webster’s dictionary, would you classify Hamilton’s ideology as federalist or centralist?

Much earlier in the book’s preface Natelson defines some words whose meanings are very important if one is to understand the concept of federalism and have a meaningful discussion about our Constitution. He explains:

“The Federalists were participants in the public ratification debates who argued for adopting the Constitution. History has labeled (unfairly) their opponents as Anti-Federalists.”

So during the time of the ratification debates, perhaps it would have been more accurate and objective to refer to the two opposing camps in the debate as the Pro-Ratifiers and the Anti-Ratifiers, especially since those in favor of ratification, who came to be known as the Federalists, were anything but a homogeneous, monolithic group. In his book, The Politically Incorrect Guide to the Constitution, historian Kevin Gutzman maintains that there were actually three parties at the Philadelphia Convention:

“The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who – without ever avowing admiration for the monarchical form – wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity – a truly federal, rather than national government (emphasis mine)” (pp. 22–24).

Another point that needs to be understood as well, is that those who were opposed to ratifying the Constitution were not opposed to federalism as it is correctly defined and understood around the world today. They were known as Anti-Federalists, simply because they opposed those who were incorrectly labeled Federalists, some of who were actually monarchists or nationalists. But alas, we will probably be forever stuck with the confusing and very biased terms “Federalist” and “Anti-Federalist”.

Robert Natelson points out an important fact however, about those who were pro-ratification, the so called Federalists, and those who opposed ratification, the so called Anti-Federalists:

“Certain basic political values and principles seem to have been fully accepted by Federalists and Anti-Federalists alike. The two sides differed only in the weight they gave to each, and—more importantly—on how well they thought the Constitution would promote them. Those who thought the Constitution would further those values and principles tended to be Federalists. Those who thought the Constitution subversive of those values and principles tended to be Anti-Federalists. But all agreed that the nation’s basic law should be structured to further those values and principles. They can be summarized under five heads:

(1) liberty, in the sense of Lockean natural rights,
(2) effective government,
(3) republican government,
(4) decentralization, and
(5) fiduciary government.”

Those who think of themselves today as the ideological heirs of, or who simply identify more with the so called Anti-Federalists, should always remember these five principles of government and work to promote them as a way to maximize agreement within the new states’ rights coalition that has recently emerged.

Post Ratification

But what happened to these two opposing camps after all original thirteen states finally did decide to ratify the Constitution?

Although Alexander Hamilton may have formed the Federalist Party near the end of the 18th century, a strong case can be made that Hamilton actually favored a mixed monarchy and that most of the Federalist Party’s supporters were actually nationalists. In the early 1790’s, newspapers started calling Hamilton supporters “Federalists”. Those who opposed Hamilton and supported Jefferson, usually called themselves “Republicans” and their party the “Republican Party.” Newspapers that promoted good relations with Britain, supported the Jay Treaty and favored Hamiltonian economic policies, would often refer to them as “Democrats” or “Democratic-Republicans”, in an attempt to associate them with the excesses of the French Revolution.

Looking back on the origins, development and eventual demise of the Federalists as a formal political party however, Thomas Jefferson wrote in 1822:

“An opinion prevails that there is no longer any distinction, that the republicans & Federalists are completely amalgamated but it is not so. The amalgamation is of name only, not of principle. All indeed call themselves by the name of Republicans, because that of Federalists was extinguished in the battle of New Orleans. But the truth is that finding that monarchy is a desperate wish in this country, they rally to the point which they think next best, a consolidated government. Their aim is now therefore to break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth. Hence new Republicans in Congress, preaching the doctrines of the old Federalists, and the new nick-names of Ultras and Radicals. But I trust they will fail under the new, as the old name, and that the friends of the real constitution and union will prevail against consolidation, as they have done against monarchism. I scarcely know myself which is most to be deprecated, a consolidation, or dissolution of the states. The horrors of both are beyond the reach of human foresight.”

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So let’s not allow ourselves to be confused by nick-names, old or new. Rather, we should do our best to discern the true aims of those who who were labeled as Federalists or Anti-Federalists. Likewise we should do the same with those who call themselves by the name of Republicans, or Democrats for that matter, but who often advocate the doctrines of those Jefferson described as the old Federalists, many of who actually tried to subvert the truly federal form of government established by the Constitution.

The task of patriots today is to do everything in their power to defeat the advocates of consolidated government, who would like more than anything else, to finalize Hamilton’s agenda and, “..break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth.”

Anytime there is any constitutional amendment proposed the first thing everyone needs to think about is basic. As Constitution Scholar Gary Alder says, “When you change your constitution you are altering your form of government.” He further states, “I can’t help but think that when amendments are proposed as readily hastily as they are these days without regard to the ramifications of those changes, it is like two doctors arguing that their method of performing a complicated operation is best—one because it takes less time and the other because it leaves a smaller scar—rather than sitting down together and discussing the interrelationship between the circulatory and respiratory systems and how the proposed operation can be performed without damaging either system. NO AMENDMENT SHOULD EVER be HASTILY DRAFTED or ONLY SUPERFICIALLY EXAMINED.”

There is a good argument the first ten amendments to the U.S. Constitution did not alter the form of government as Madison originally identified areas within the Constitution to add what we now refer to as the Bill of Rights. However, every amendment since then has impacted our form of government, most in a negative way (19^thAmendment, however ladies, was a good one).

In a move that the amendment’s author, Georgetown University Law Professor Randy Barnett, says will help restore the authority reserved to the states it initially appears this might be a good amendment. “This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states,” Barnett was quoted as saying by Andrea Stone. “Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.”

The Repeal Amendment is short and to the point, something indicative of a possibly good change. It does not have the infamous words that have haunted so many amendments since reconstruction, “Congress shall have power to enforce this article by appropriate legislation.” The text simply states;

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

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Knowing the growing pressure in many states to revive support for the 10^th Amendment it is easy to understand why this is gaining such a positive response in Tea Party circles. Since being submitted Tuesday by Rep. Rob Bishop (R-UT) it has gained a lot of steam early. Rep. Bishop, founder of the 10^th Amendment Task Force, called it a weapon in states’ quivers and alluded to this being one of several proposals to come. “I actually hope to have a series of statutes and amendments — several amendments and several statutes — that we can introduce this year,” Bishop said, “with the sole goal of not just cutting down the power of Washington to do things to people, but more importantly, is to empower states.”

Is it easier to empower states by creating a series of new changes to our form of government or to use the same passion, energy, and effort to repeal errors of past changes? Also, are we to believe Rep. Bishop, Cantor (R-VA), and other D.C. representatives when they say this amendment will check federal government while restoring power to the states and people as it was meant to be? Of course we are to believe this is the easiest and best way to restore order, after all these are Tea Party backed, grassroots politicians proposing these changes so we know it is OK to trust in their proposals, don’t we? As a matter of fact, we should be rallying at capital steps across the country with big signs and cheering grand cheers to our new defenders and their saving amendment…repeal~repeal~amending federal power~repeal~repeal~such an easy deal!

Excuse me if I sound a wee bit skeptical Rep. Bishop and Rep. Cantor. First, the repeal process, outlined in the amendment, does not consider one of the fundamental aspects of federalism our founders developed. It was a part of Article VI, Clause 2 and it was a necessary part for both vertical separations of powers and sound checks to work. Yes, I am referring to the often court abused, media misconstrued area commonly known as the Supremacy Clause. Before you jump up and down and scream this Wood fellow has no clue what he’s typing about I fully understand only federal legislation made “in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” The key word, Pursuance, was so important it was capitalized (our framers equivalent to bold type today).

Second, the amendment requires 33 (34 if you round up) states to be opposed to an item. What will this do for the important state mechanism the 10^th Amendment does help illuminate, the Doctrine of Interposition? With the common threat of nullification of unconstitutional laws, would this be all but negated by the repeal amendment? If the 2/3 rule is not met then all states would be stuck with an unconstitutional law. Historically, far less than 2/3 of states have adopted the same Resolutions of Interposition and yet the federal, or general, government has backed down in challenges to their wayward laws. True 10^th Amendment stances, based on sound nullification doctrine, works even today. Medical marijuana is just one of many growing examples of this.

What about laws passed by the general government that are constitutional, based on the original meaning? If enough states can rise against constitutional laws they too can be overturned, whether passed ‘in Pursuance thereof’ or not. This amendment truly alters the vertical checks and balance provided under the original meaning. In theory this amendment could weaken the federal level to a point of it being little more than it was under the Articles of Confederation. Although the federal government is far too large and intrusive today we will not find ourselves ‘securing the Blessings of Liberty to ourselves and our Posterity’ by turning the dial that far back.

Is it really time to completely alter our form of government or, again, would it be better if all these efforts were focused on restoring original meaning before completely changing it? Would Madison embrace such a departure? I don’t believe he would yet I am quite confident he would fully support the restoration of today’s 10^th Amendment efforts and the Doctrine of Interposition. My confidence stems from his words, written in Jan. 1800 as part of his Report on the Virginia Resolutions in which he was defending his resolution rejected by other states. He wrote no truer words, words Rep. Bishop and Rep. Cantor should still be holding true to if they are as ardent defenders of the sovereignty of the states and our 10^th Amendment as they seem to be.

The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

Ken Ivory further reminds us of the words of Thomas Jefferson, written in 1791 to Archibald Stuart;

It is important to strengthen the State governments, and as this cannot be done by change in the Federal Constitution (for the preservation of that is all we need contend for), it must be done by States themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government. The only barrier in their power is a wise government. A weak one will lose ground in every contest.

Gary Wood is the Educational Advisor for the Utah Tenth Amendment Center. Co-founder of the Heritage Training Center, focused on helping end constitutional illiteracy. With 35 years of devoted study of our Constitution his desire is to help others rediscover the inspiring heritage of the United States. Radio show host, training officer, lifetime member of the VFW and most importantly Grandpa.

The issue of state sovereignty, and a balance of power between State and federal governments, as explicitly stated in the 10th Amendment, should span political ideologies and party lines. But many, particularly Democrats and folks leaning toward the left side of the political aisle, misunderstand, believing that “tenthers” belong exclusively to the “right” or to the Republican Party.

Undeniably, some have hijacked the Tenth Amendment for their own causes, narrowly applying the principles of state sovereignty and limited federal power to specific issues. But the Tenth Amendment Center stands for an even application of the Tenth and constitutional principles, limiting the federal government to its enumerated powers, even in cases where we may find the outcomes advocated by the feds favorable.

Our eyes remain singularly focused on the process, regardless of political outcome. We stand solidly committed to James Madison’s summary of the powers delegated to the federal government.

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.”

True advocates of the Tenth Amendment don’t necessarily oppose government health care solutions. We just insist health care falls under state authority and any government run system must evolve at the state level. We don’t necessarily favor the legalization of drugs, but understand that the federal government has no Constitutional authority to prosecute a drug war. Each state must make its own decisions about the legalization of marijuana and other substances. “Tenthers” don’t necessarily oppose public funding for art, but recognize the federal government does not have the authority to pass out money for the arts. States must create their own mechanisms for art funding, if they deem it a priority. Political liberals should welcome the intended constitutional restrictions on waging war.

Democrats as well as Republicans, those leaning toward the political left as well as those leaning to the right, should embrace the Tenth Amendment, because it protects every citizen from the dangers of concentrated power. The founders created dual sovereignty for this very reason. They feared the tyranny inherent in big, centralized governments.

Justice Antonin Scalia articulated this principle brilliantly in a 1996 Supreme Court Ruling striking down parts of the Brady bill in Mack/Printz v. USA.

“The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people.

The great innovation of this design was that our citizens would have two political capacities, one state and one federal, each protected by incursion from the other ‘ – -’a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.’ U.S. Term Limits Inc. v. Thornton 514 U.S. 779 838 (1995) (Kennedy J., concurring). The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens.

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“As Madison expressed it: ‘The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere’ The Federalist No. 39 at 245.

“This separation of the two spheres is one of the Constitution’s structural protections of liberty”

In an era of increasing political divisiveness, perhaps citizens embracing widely varied political ideologies can find a rallying spot and common ground around the Constitution, the 10th Amendment and the political processes brilliantly devised by our founders. Perhaps a rediscovery of the constitutional principles envisioned by our founders can serve as a bridge spanning different ideologies. While we may disagree on the role of government in various aspects of our lives, surely we can agree on working out those differences within a system designed to protect the freedom’s and liberties of every citizen.

H.R. 1586: Education Jobs and Medicade Assistance Act was signed into law on August 10^th. Many in Utah arecheering as Gov. Herbert and many state legislators are planning to accept the ‘grant’ money and strings attached to the bill. Most are not aware of the path this bill took from the House of Representatives through the Senate and finally to Pres. Obama for signature. Here’s a brief look at the titles and official statements, most recent at the top, provided by OpenCongress.org:

All Bill Titles

• Popular: Education jobs and Medicaid funding bill.

• Popular: Education Jobs and Medicaid Assistance Act as introduced.
• Short: Federal Aviation Research and Development Reauthorization Act of 2010 as passed house.
• Short: Airport and Airway Trust Fund Financing Act of 2010 as passed house.
• Short: Aviation Safety and Investment Act of 2010 as passed house.
• Short: FAA Air Transportation Modernization and Safety Improvement Act as passed house.
• Short: FAA Air Transportation Modernization and Safety Improvement Act as passed senate.
• Official: An act to modernize the air traffic control system, improve the safety, reliability, and availability of transportation by air in the United States, provide for modernization of the air traffic control system, reauthorize the Federal Aviation Administration, and for other purposes. as amended by senate.
• Official: To impose an additional tax on bonuses received from certain TARP recipients. as introduced.

In typical spaghetti bowl approach the national government has found a way to tie three seemingly different areas into a single bill easily marketed as a way to help teachers and children across the country. Who would not want to help teachers and children? Especially since the money is granted from the national government and the states need this help (most states anyway as there are some states fully funding their education needs).

Yet, where is the $10 billion coming from? We have to go through the bill to find “Title 1, Subtitle A, Section 101, (d) Rescission of Unobligated Balances- Of the amounts authorized under obligated for necessary expenses for an Education Jobs Fund, $10,000,000,000: Provided, That the amount under this heading shall be administered under the terms and conditions of sections 48103 and 48112 of title 49, United States Code, for fiscal year 2009, $305,500,000 are hereby rescinded.” Clear? If not you can read further clarifications under SEC. 116. IMPACTS ON AIRPORTS OF ACCOMMODATING CONNECTING PASSENGERS. The heart of the details are actually further down under Subsection C, Section121 that covers “UPDATE ON OVERFLIGHTS.” Good luck!

Where is the money coming from? According to The Washington Post article, “[t]he bill includes nearly $10 billion in new taxes on U.S. multinational corporations that do business abroad, and it rescinds after 2014 an increase in food stamp payments enacted in last year’s $862 billion stimulus package.” Yes, the additional money for temporary relief for education will eventually come, partially, by reducing food stamp payments, but that’s not until 2014 and states get the money for education today.

“It would be foolish for the State of Utah not to accept this funding, which will directly benefit Utah’s schoolchildren…I am committed to fiscal responsibility, and will continue to demand it here in Utah,” Herbert said. “But I will not put ideology before Utah’s schoolchildren.”

It was further pointed out the money was reallocated from other areas so it is not new money. The Utah House Speaker, Rep. David Clark, told a GOP Caucus meeting there are holes in the budget this money can be used to fill. The marketing efforts of the national government are quite successful in stopping ideology in its track. Don’t be foolish, take the money or it will be forced upon you anyway.

Ideology is defined many ways, especially political ideology. Mirriam-Webster’s Online Dictionary offers the following;

1: visionary theorizing
2 a: a systematic body of concepts especially about human life or culture b: a manner or the content of thinking characteristic of an individual, group, or culture c: the integrated assertions, theories and aims that constitute a sociopolitical program

This is a word that came into use after our Framers and Founders provided the unique principles of federalism. The assertions, theories, and aims of federalism created a firestorm of debate around the globe. Prior to 1789 no society had been designed with the ideological focus of self-governing by the people with life, liberty, and property being governed at the lowest level possible with states being the top level. The visionary aspects can be found in the six goals of the Preamble to the U.S. Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Federalism in Utah has been a real talking point over the past couple of years. Many feel this principle is fundamentally required for our Constitution and our federalist republic to survive. Move from this principle and we move from a system of governing that secures the blessing of liberty to one that promotes centralized planning and a more tyrannical approach required under any centralized model of governing. It is this principle, federalism, which is put at risk once again by our national government’s insistence that states take the money provided under H.R. 1586. But according to state school superintendent Larry Shumway the principle simply has no hold in this discussion.

ABC 4 reporter Don Hudson interviewed Shumway and as part of the interview he stated, “There is a provision that requires the secretary to allocate the money. And if one state doesn’t take it – he has to give the money to somebody. So, if we said, as a state, we are going to stand on principle and we won’t take the money – the money is going to be spent somewhere. That’s in the law.” The law trumps principle, federalism loses. The pesky thing about principles is if we rationalize around them often enough they become meaningless. Federalism is quickly becoming meaningless and as it dies so dies our form of society which brought us the liberty we use to hold dear.

In Felix Morley’s Freedom and Federalism he writes;

I further came to realize that the outstanding virtue of federalism, which is the distinctly American contribution to political art, is its facility in combing these antagonistic conditions (order and freedom). Since the reconciliation of freedom and order is anything but easy a federal system requires both complicated governmental machinery and a high degree of interest and understanding among its citizens. These factors make federalism a distinctly experimental system, especially vulnerable in periods of upheaval. (pg. xxiv)

Herbert, Davis and others do not mind supporting resolutions or legislation emphasizing federalism when it is easy but when it gets tough, teachers and children after all will ‘lose’ and the dollars will be spent anyway, it takes a back seat. This is a period of upheaval after all. Upheaval is today a constant in our governing world. As for this latest bribe toward centralization it does not matter the funds are temporary. When they run out where will the state get the money moving forward? Perhaps next time it will come from new money or another round of redistributed money from the FAA. Maybe we will need another form of emergency spending of dollars our children’s children will have to pay. Further reductions from Peter so that Paul may benefit while ideology gets moved from the back seat to the garage, tucked away in a box we will not open again.

The cycle will continue as the national grip over states becomes so strong there will be no stopping it, ideology be damned. Federalism is not a part-time approach to freedom. Our choice is not about taking money for schools today but stopping the cycle of nationalized education and centralized planning. The marketers sell us a different product but this ‘as seen on TV’ product does not work, we must stop buying it at some point or give in to the fact we don’t have the “high degree of interest and understanding” Morley reminds us is necessary.

How could we possibly uphold federalism and still support our teachers and children? Under federalism Utah can access the resources locked away by national government intrusion. You can learn about this by reviewing the H.B. 143: Eminent Domain Authority. State resources far exceeding the national government’s dollars are available but we don’t demand them as loudly as we demand our politicians take the money from the EduBills Act today.

It is not easy to understanding, simply look at the structure of the legislation to discover our political parties don’t want it to be. Track the logic of funding education needs by a bill summarized as “[a]n act to modernize the air traffic control system, improve the safety, reliability, and availability of transportation by air in the United States, provide for modernization of the air traffic control system, reauthorize the Federal Aviation Administration, and for other purposes.”

What can we do? First and foremost study our heritage and decide if you want federalism to be the ideology thatguides our posterity or not. If you don’t then it does not matter if elected officials only support it part of the time, it will die soon enough. If you support the ideology that should guide our posterity you will need to be involved with a high degree of interest and understanding. Involved in this issue means you will want to sign the petition “Utahn’s Against Fiscal Meltdown” (check back for active link coming soon) and explain to your representatives we must uphold the principle of federalism ALL the time; when it is easy and when it is difficult, even as difficult as the EduJobs Bill makes it.

Gary Wood is the Educational Advisor for the Utah Tenth Amendment Center. Co-founder of the Heritage Training Center, focused on helping end constitutional illiteracy. With 35 years of devoted study of our Constitution his desire is to help others rediscover the inspiring heritage of the United States. Radio show host, training officer, lifetime member of the VFW and most importantly Grandpa.

EDITOR’S NOTE: Debra Medina will be joining us as a featured speaker at Nullify Now! on 09-04-10 in Ft Worth, Texas.  There are just a few tickets left – Click here for more information and to reserve tickets now – or call 888-71-TICKETS

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The ties between England and what would become the United States of America were severed, as Tench Coxe, delegate from Pennsylvania to the Continental Congress, put it, in large part due to the perversion and mal-administration of the British government.[i] Two hundred years later, Americans are manifesting similar levels of frustration with government and inflammatory terms like secession are being used by politicians ever anxious to grab the media spotlight and secure their re-election.  But what have they done exactly to correct the “perversion and mal-administration” of the government?

Our founders, astute students of history, well understood as St. Augustine had described, Libido Dominandi, the lust to dominate. They knew that if permitted, the federal government would transgress the limits of the constitution, and, as Thomas Jefferson remarked, “[annihilate] the state governments and erect upon their ruins a general consolidated government.”[ii]

Mr. Jefferson wrote in 1799, “lest [our] silence be construed into an acquiescence…the states…being sovereign and independent, have the unquestionable right to judge of [the federal government’s] infraction; and “That a nullification, by those sovereignties [states] of all unauthorized acts done under color of that instrument [the Constituion] is the rightful remedy.[iii]

Mr. Jefferson understood that a stronger response than mere petitions and protests would be necessary but he sought ever to preserve the union and thus viewed secession only as a last resort.

He understood that the states must stand in defense of the liberty of the people.  He knew the federal government would seek to annihilate the states and dominate all American life.

Thomas E. Woods Jr., in his recent best-seller, Nullification, references state representative John Breckinridge’s comments to the Kentucky legislature of 1799, “the people at the state level ought to make a legislative declaration that, being unconstitutional, they [federal actions] are therefore void and of no effect.”  With regard to unconstitutional federal actions, Breckinridge hoped “Congress might repeal them, or that decent judges might refuse to act upon them” but in the interim recognized the states obligation to “nullify those acts and to protect their citizens from their operation.”

What stops us from following in Mr. Jefferson’s footsteps and declaring Obamacare and Cap and Trade Initiatives, “palpable violations of the said constitution” and “consider a silent acquiescence as highly criminal?”  In that vein, the Texas legislature has the “right and is duty bound to interpose for arresting the progress of evil, and for maintaining our authorities, rights and liberties” declaring this federal action unconstitutional, null and void and of no effect in the sovereign state of Texas![iv] Failing to do so, we, as Congressman Edward Livingston of New York declared in 1798 “deserve the chains which these measures are forging” for us.[v]

Debra Medina got involved in politics in the 1990s and became Wharton County GOP chairwoman in 2004. She was a high-level volunteer for Ron Paul’s 2008 presidential campaign, and served as Interim State Coordinator for the Campaign for Liberty. At the 2008 Republican Party of Texas state convention in Houston, she lost her bid for state GOP vice chairwoman. In 2008, she decided to run for governor. Visit her new organization at WeTexans.com

[i] The Debate on the Constitution, Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle Over Ratification, Part One: September 1787 to February 1788, 22, Literary Classics of the United States, New York, N.Y., 1993.

[ii] The Kentucky Resolutions of 1799, Elliot, Jonathan Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume IV, 544-545, Lippincott (1907).

[iii] ibid

[iv] Ibid

[v] Woods, Thomas E. Jr., Nullification, How to Resist Federal Tyranny in the 21^st Century. P. 53 Regnery Publishing, Inc., 2010.

Federalism is a form of governing in a republic that was launched in earnest, for the first time, through the efforts of the 1787Constitutional Convention.   The men who gathered for the convention did not agree on everything and the states’ citizens they represented also disagreed on many things.  This is not unusual then or now, we humanoids are known to disagree.  The science of government is not a perfect science.  People have different agendas, alliances, and concerns.  Yet, when the doors opened on Sept. 17^th, 1787 a concept emerged that would be debated across the young country, in the sovereign States’ conventions gathered to consider ratification.

Those who embraced the document as it was written were committed to establishing a federalist republic with a fundamental foundation in the rule of law over the rule of kings.  Those who did not embrace the document were also committed to establishing a federalist republic formed on the same concept yet felt the original document still lacked the safeguards necessary for protecting the people of all States through the addition of a Bill of Rights with the keystone set in the duty of states to check the general government as well as the general government having a check on states.  Both understood it was an attempt to develop a republican government that protected against factional largess and majority abuse over minorities while providing people an opportunity to live in a free environment.

From New York to Virginia, New Hampshire to the Carolinas there was one thing many came to agree on in their respective conventions.  Federalism’s success depended on the vertical separation of powers as much as the horizontal separation.  Maintaining government over the daily concerns of people at the lowest level possible was necessary for self-government to thrive and kingly government to have no place in the future of the United States.  Listen to a few of the proposals added to their ratification (as quoted from United States: Formation of the Union, GPO, 1927):

“This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.” (South Carolina Ratifying Convention, May 3^rd, 1788)

“First That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.” (New Hampshire State Ratifying Convention, 1^st Amendment Proposal, June 6^th, 1788)

“First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal government.” (Virginia State Ratifying Convention, 1^st Amendment Proposal, June 7^th, 1788)

“I. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal government.” (North Carolina State Ratifying Convention, 1^st Amendment Proposal, Nov. 21^st, 1789)

“1^st The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this constitution expressly delegated to the United Sates.” (Rhode Island State Ratifying Convention, 1^st Amendment proposal, May 29^th, 1790)

All of these states, and more, caused the very first Congress of the United States to take action.  This action resulted in the proposal of 12 amendments to the Constitution.  Why?  Turn to the preamble of the resolution submitted to the States, on March 4^th, 1789, and read the answer;

“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 powers, that further declaratory and restrictive clauses should be added:”

What were the States attempting to prevent?  “Misconstruction or abuse of it’s (the National Government) powers.”  What was necessary?  Simply “that further declaratory and restrictive clauses should be added!”  The twelfth proposal (which became the tenth amendment) was the keystone that set at ease the many States, and their citizens, that had made separation of vertical powers their first proposal as part of the ratification process.

Historians tell us Alexander Hamilton was a strong nationalist, even perhaps a monarchist.  Surely such a man disagreed on the need for State duty or power.  If we can find no other voice among the founders who felt the States had no business checking thenational government it would be his.  We get a full insight into his view of federalism during the 1788 New York Convention.  He extolled;

“This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance.  It forms a double security to the people.  If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from over passing their constitutional limits by a certain rivalship, which will ever subsist between them.” (Alexander Hamilton, speech to the New York Ratifying Convention, 1788)

Plainly all those who disagreed on so many aspects of government found common ground in the need for each State to maintain their duty to protect their citizens.  Citizens of each State had a duty to insure their States retained their constitutional sovereignty, a duty to support legislators who put a check on general power, who interposed on the citizens behalf.  It is for this reason James Madison words make sense when writing, in Federalist 39, “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.”

Federalism was to become known as a grand and noble experiment.  The very document and structure created would cause debates and discussions around the globe.  It would require the people to stay actively involved locally, especially within their homes and communities, while electing statesmen who would honor an oath and defend their rights whether elected to represent them in the general, state, or local government.  Human nature was going to be put to a test and those who disagreed on the finer points within the science of government were going to be tasked with finding agreements as well as compromises when necessary.

Federalism not nationalism, the debate did not end in the 1780s or 1790s.  It raged on as men struggled with temptations.  Even the staunchest believers in federalism gave way when pressed as Jefferson did with the Louisiana Purchase and embargos that brought the wrath of northern states upon him.  It was also Jefferson, even earlier, along with Hamilton that spawned the rise of the first major factional divide we refer to as political parties.  Political parties are just factions; special interest groups with a platform that shifts with the whims of its members as it struggles for footholds into political power.  Yet, as early as these struggles occurred there was not a single effort to end federalism or repeal the 10^th Amendment of our U.S. Constitution.  Long after Hamilton and Jefferson had left this world Joseph Story showed there was still a large level of belief in the institution.

“The state governments have a full superintendence and control over the immense mass of local interests of their respective states, which connect themselves with the feelings, the affections, the municipal institutions, and the internal arrangements of the whole population. They possess, too, the immediate administration of justice in all cases, civil and criminal, which concern the property, personal rights, and peaceful pursuits of their own citizens…”So that the executive and legislative branches of the national government depend upon, and emanate from the states. Every where the state sovereignties are represented; and the national sovereignty, as such, has no representation.” (Joseph Story, Commentaries on the Constitution, 1833)

Yet our course has been altered despite checks and balance, despite separation of powers, and despite having a history to learn from, improve upon, and grow in self-governing liberty.  The 10^th Amendment still has never been repealed yet people have long allowed the notion of separation to slip their minds.  Sold on an idea of democracy, majority rule, and a federal government is the governing body that holds the answers (if our chosen party’s personality sits as executive) politics is that area of life few want to hear about and fewer still want to study.

Keystone to our liberty

We still disagree on many things yet when is the last time anyone even debated federalism or nationalism, democracy or complex republic?  Recently?  Indeed, recently the debate is starting to gain steam once again.  Not among the many but definitely among the few, similar in our history to the 1760s and early 1770s.

Those debating are finding plenty to disagree upon yet more and more are beginning to once again realize there is agreement to be found in federalism’s arms.  A nation so large can only be free when politically approached locally, it simply makes sense to those who study as no society has prospered long under democracy and freedom never thrives under the rule of kings.

Are you studying once again?  Are you reading the words of those men who developed our fundamental principles?  Have you listened to the words of Jefferson, when written to Judge William Johnson back in 1823, and found truth when he stated;

[T]he States can best govern our home concerns and the general government our foreign ones. I wish, therefore … never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold at market.

Gary Wood is the Education Advisor for the Utah Tenth Amendment Center. He works with the Utah 912 States’ Rights Coalition and Hosts March of Liberty Radio every Saturday and Sunday evening at 7pm EST on Blog Talk Radio. He is a lifetime member of the VFW among other groups but more important to him is his title of grandpa. “According to Thomas Jefferson the 10th Amendment is keystone to our Constitution. We must restore the keystone so we can secure the blessings of liberty for our posterity, a goal of our Founders and a goal we must still strive to achieve.”

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

Introduction

One theory about the origin of the children’s poem, “Jack and Jill”, is that it was a stealth protest against actions by King Charles I of England during his reign from 1625 until his execution in 1649. Details about what happened are sparse on the web, but apparently, when the Parliament refused to allow a tax increase, Charles responded by reducing the volume of a standard unit of measure, “the jack”. In the measurement system of the time, two “jacks” comprised “a gill”. All other things being equal, this volume reduction would have increased revenue from the existing tax law.

The theory is that the people were afraid to complain openly on the topic, so they devised the poem, “Jack and Gill” as a stealthy form of protest. Sometime later, Gill became Jill.

(incidentally, it’s off topic for this article, but how different is Charles’ action from today’s dollar inflation by the U.S. Federal Reserve?).

This story brings to mind two ideas which are relevant to the “same sex marriage” debate.

First is the idea that language evolves. Language is a tool for enabling communication among people. Over time, as our societies change, language evolves with them so that it can continue to accomplish its purpose. “Gill” becomes “Jill”. “Superhighway” changes from a slab of blacktop and concrete to a network of copper and fiber-optic cables. Consequently, efforts to control language are efforts to control thought.

Second is the propensity for government to meet its insatiable appetite for income and control by bending the rules and meddling in places where it doesn’t belong. Parliament had approved a tonnage tax, but it wasn’t yielding enough revenue. King Charles couldn’t get the people’s representatives to approve a tax increase, so he nudged the measurement system to make an end-run around the people.

Two Forms of Thought Control

For most of history, the word marriage meant neither a personal choice, nor a union permitted and controlled by the state. It was a financial arrangement between families. As our society evolved, the word marriage came to apply to an individual choice. Even in nineteenth century America, the word was used by some to represent polygamous relationships. In some cultures, unusual relationships are still included, today, in the definition of the word.

Somewhere along the way, in our culture, the word, “marriage” was captured by the state. Now, because the word has been captured, two groups of people are engaged in a massive struggle to forcibly control the word’s definition.

Etymology is the study of the history of words, where they are from, and how their form and meaning have changed over time. – wikipedia

Without interference from powerful institutions, it is the nature of words and language to change in meaning over time. The current debate over same sex marriage is an effort to exempt the word, “marriage” from that natural linguistic process.

Worse! It is an effort to dictate our thoughts to us. For some of us, the word, “marriage” means a union between a man and a woman. For others, it means a committed relationship between consenting adults. Like Charles changing the size of the jack, whichever belief we hold, there are people who are actively working to coerce — not persuade, coerce — us into changing our beliefs.

Normally, there is absolutely nothing controversial about words with multiple meanings. We manage to survive as a society with all sorts of multiple meaning words. We even have a name, homographs, for these words. For instance, do I play catch with a ball or do I attend a ball? I don’t need the state to tell me what I mean when I say, “ball”. If there is additional need for clarity, linguistic conventions might gradually and peacefully replace “attend a ball” with “attend a party”.

Rather than let linguistic nature run its peaceful course on the meaning of the word, “marriage”, two groups of thuggish activists now want to short circuit that process and tell us all what to think. No matter which meaning they promote for the word, this attempt at thought control is objectionable. Personally, I will not have my thoughts dictated by force of law from either of these groups.

Marriage is a Private Matter, Between Individuals

In the debate over whether to legalize gay marriage, both sides are missing the point. Why should the government be in the business of decreeing who can and cannot be married? – David Boaz

The ninth amendment to the U.S. Constitution says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And the tenth amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In light of these two amendments, and the fact that regulating marriages is not a Constitutionally delegated power, it should be clear that the power to regulate marriage is reserved to the States, or to the people. It should also be clear that the right to be married is retained by the people.

As Boaz points out, if marriage were privatized, the government’s role would be limited to contract enforcement. Several standard contracts would likely emerge and people would be free to choose the contract of their preference. As Wendy McElroy wrote, “A legal marriage is whatever contract for a committed relationship is agreed to by those involved.”

This model is the only one that accommodates freedom of thought and action. Beyond enforcing the terms of a voluntary contract, there is absolutely no reason why government should be enforcing or subsidizing anyone’s morality or attempting to control anyone’s thoughts.

As with all questions of law, there are two levels of government to consider.

Although I believe it is brutish, I must grudgingly admit that state governments are authorized by the Constitution to legally define and regulate marriage. Contrarily, the federal government has no Constitutional voice on the matter, whatsoever.

Conclusion

Same sex marriage is contentious, primarily for two reasons. 1.) State and federal governments have created financial incentives to promote marriage, including tax breaks and other subsidies; and 2.) Two powerful groups of people are aggressively trying to dictate our thoughts to us.

The position of liberty in this debate is clear. Marriage should not be a matter of interest to the state, except in the realm of contract dispute. Instead of working to establish thought control over one half, or the other, of our country, people should be looking for ways to stop subsidizing an individual’s private decision and to free the word, marriage, from institutional capture.

While the states do have the legal, Constitutional power to legislate on the matter, they are ethically wrong to do so. The people should be free to utilize contracts and language of their own choosing.

While I do not like the idea of state governments defining marriage, this issue demonstrates clearly another reason why the Tenth Amendment is important. Different states can legislate the matter differently, and the people can “vote with their feet”, withdrawing the consent of the governed, on issues which are important to them. In the winner take all world that would exist without the Tenth Amendment, this important capability would be taken away from us!

Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

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