Poor Thomas Jefferson has suffered this kind of treatment at the hands of countless historians, and Marco Bassani, a scholar of the history of political thought, will have none of it. Bassani, an American-born professor teaching at the University of Milan, takes ruthless aim at what has been called the “scholars’ Jefferson,” who bears scant resemblance to the classical liberal figure of the popular mind. Jefferson is one of those cases in which — in terms of his views on property, states’ rights, the Union, political majorities, and the Constitution — the earlier, conventional view was in fact the correct one. Bassani’s wide-ranging knowledge of Jefferson scholarship serves him well in Liberty, State, & Union, as he carefully describes and then refutes the competing schools of thought.

He begins with the controversy over “republicanism” and “liberalism” that erupted among historians of early America in the latter half of the 20th century. The “republican” consensus that developed sought to downplay, and even to dismiss altogether, the role of classical liberalism in the tradition of John Locke from the formative influences of the revolutionary generation. In its place they substituted an ideology called “republicanism.”

In colloquial usage, “republican” might be used to describe those who merely support a republican form of government, but that is not what the republican school had in mind. The republicanism those historians postulated was a full-fledged counter-philosophy that was said to describe the thinking of the revolutionary generation more faithfully than the limited-government classical liberalism everyone had thought to be at the center of early American thought. Republicanism, so formulated, placed the locus of true liberty and fulfillment not in the individual, private pursuit of one’s ends, but in active participation in the res publica. The strict limitation of government power to the protection of person and property is not the central concern of the “republican” as it is of the classical liberal.

Bassani traces the path by which this interpretation of the revolutionary generation grew to the point that it came to dominate the profession, eclipsing rival versions of the revolutionary outlook and excluding Locke and natural law altogether.

The new consensus, in turn, tried to force the square peg of Thomas Jefferson into the round hole of “republicanism.” Jefferson, it turned out, was no classical liberal after all; he, too, was a “republican.” J.G.A. Pocock, the founder of the republican school, even tried to portray the Declaration of Independence as a document devoid of Lockean influences. Hannah Arendt, who anticipated many of the themes of the republican school, referred to the ward system that Jefferson spelled out in 1816 (in which most decisions would be made at the level of the ward, a part of a city) as evidence that he considered civic participation to be the highest source of human fulfillment. “The basic assumption of the ward system,” she argued, “whether Jefferson knew it or not[!], was that no one could be called happy without his share in public happiness, that no one could be called free without his experience in public freedom, and that no one could be called either happy or free without participating, and having a share in, public power.”

Forcing Jefferson of all people into this mold is no easy task, and all such efforts have been ludicrously strained. His political thought is certainly not centered on “republicanism,” as understood by those historians. To the contrary, observes Bassani, Jefferson “spent his whole life on the reflection upon the best mechanism to curb and oppose the concentration of political power, both of government against individuals and of the union against the states.” Little wonder that in recent years the historiographical pendulum has at last begun to swing the other way.

Private property

Some scholars have even called into question Jefferson’s commitment to private property in the tradition of Locke. That effort seems doomed from the start. “Locke’s little book on government [which includes a section on the natural right of property] is perfect as far as it goes,” Jefferson said. He had in fact been accused of plagiarizing Locke’s Second Treatise in the text of the Declaration of Independence: “There are certain principles in which all agree, and which all cherish as vitally essential to the protection of life, liberty, property, and the safety of the citizen.” Jefferson likewise wrote that “a right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings.” He added in 1816, “To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, ‘the guarantee to every one of a free exercise of his industry, and the fruits acquired by it.’” Toward the end of his life, Jefferson remarked, “As to the general principles of liberty and the rights of man, in nature and in society, the doctrines of Locke, in his ‘Essay concerning the true original extent and end of civil government’ and of Sidney in his ‘Discourses on government,’ may be considered as those generally approved by our fellow citizens of [Virginia], and the United States.”

Those who would question the view of Jefferson as a Lockean natural-rights theorist on property contend that he viewed property not as a natural right that may never be curtailed, but as a purely conventional right that individuals enjoy at the sufferance of the community. One way of advancing that claim is by making an argument from omission: in the Declaration of Independence, such critics point out, Jefferson substituted “pursuit of happiness” for “property” in the familiar triad of “life, liberty, and property.” That is supposed to indicate that Jefferson wished to remove property from the list of rights man enjoys by nature. Bassani takes on that argument convincingly, providing an impressive body of evidence showing that the enjoyment of property was one of the indispensable ingredients of a truly happy human life.

In order to posit any other Jefferson, revisionist scholars would have to produce a comparable body of statements to the contrary, or show why every existing statement in which Jefferson appears to describe property as a natural right must be given the opposite meaning. That, needless to say, they have not done. “The burden of proof,” writes Bassani, “lies with those who espouse the bizarre picture of a champion of Lockean natural rights — considered by his contemporaries as the most representative of the ideas of an entire generation steeped in natural law tradition — denying property as a natural right. And the clinching evidence is lacking.”

The compact theory

On the Constitution, Bassani acknowledges that Jefferson did endorse the work of the Philadelphia Convention — with reservations — but finds that his enthusiasm has been exaggerated. Jefferson spoke favorably of the Articles of Confederation, telling a correspondent that “the Confederation is a wonderfully perfect instrument, considering the circumstances under which it was formed.” In November 1787, two months after the Philadelphia Convention had completed its work, Jefferson confided to John Adams that “all the good of this new constitution might have been couched in three or four new articles to be added to the good, old and venerable fabrick, which should have been preserved even as a religious relique.”

To assess Jefferson’s endorsement of the Constitution we need to bear in mind the very limited consequences that its ratification entailed in his view. In an era in which “Tenther” (i.e., a supporter of the Tenth Amendment to the Constitution) has, absurdly enough, become a term of derision, Jefferson’s approach to the Union is a splash of cold water:

The true theory of our constitution is surely the wisest & best, that the states are independent as to everything within themselves, & united as to everything respecting foreign nations. Let the general government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization, & a very unexpensive one; a few plain duties to be performed by a few servants….

That, in turn, brings us to Bassani’s discussion of states’ rights, the topic on which Jefferson’s thought seems to elicit the greatest consternation among purveyors of fashionable opinion today. (“States’ rights,” a phrase Jefferson himself used, is of course a shorthand term; Jefferson understood as well as anyone that states do not have rights in the sense that individuals do.) Jefferson was a principal architect of the compact theory of the Union, which conceives of the United States as a collection of self-governing, sovereign communities (the states). (More precisely, it is the peoplesof the states who are sovereign; no government is sovereign in the American system.)

Those communities, according to the compact theory, have not forfeited their sovereignty by delegating a portion of their sovereign powers to a central government that is to act as their agent. The sovereign peoples of the states areexercising their sovereign powers when they apportion tasks among the state governments, the federal government, and themselves. They remain just as sovereign as before.

That it is the peoples of the states (often referred to in shorthand merely as “the states”), rather than an American people in the aggregate, who are sovereign is evident from history. The colonies-turned-states declared their independence from Britain as thirteen “Free and Independent States” that had “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” The British acknowledged the independence of those states by naming them individually. Article II of the Articles of Confederation declared, “Each state retains its sovereignty, freedom, and independence”; the states must have had that sovereignty to begin with in order toretain it in 1781, when the Articles officially took effect. And when the Constitution was to be ratified, it was ratified by each state separately, not in a single national vote. This simple historical overview establishes a very strong prima facie case that the states remained sovereign and were never collapsed into a single whole.

What that meant for Jefferson and many of the thinkers who followed in his footsteps was that in the last resort the states, the constituent parts (and creators) of the Union, had to have the power of nullification, the refusal to allow the enforcement of unconstitutional federal laws within their borders. When a conflict arises as to whether a particular power was delegated to the federal government or reserved to the states, the states must be the ultimate judges; they are the proper disputants in such a case. It would be logically backward for the principals to ask their agent whether that agent was intended to have a particular power.

The states need some kind of defense mechanism by which they can prevent the federal government from destroying the very system they themselves created. (James Madison insists on this point in his famous Report of 1800.) When the delegated powers are abused, recourse may be had to ordinary political remedies. But when the federal government exercises powers not delegated to it, a more direct and immediate response from the states is called for.

According to Bassani, the Kentucky Resolutions of 1798, which vindicate the compact theory — and which countless historians have tried to run away from — contain “the whole of [Jefferson’s] theory of the federal union.” Jefferson’s draft even contained the word “nullification,” which was later removed by a skittish legislature; it would later appear in the Kentucky Resolutions of 1799. It is exceedingly rare to encounter a historian or a political philosopher who approaches this document or its decentralist ideas with sympathy, so entrenched is nationalism in the popular mind. The usual response is to try to explain away Jefferson’s position, downplay its significance, or portray it in an absurd light, often raising objections against it that Jefferson himself answered. Bassani, to the contrary, gives us one of the best short overviews of Jefferson’s view of the states and the federal government readers are likely to encounter.

Although a popular audience can learn a great deal from Liberty, State, & Union,readers should understand that Bassani is looking to do much more than merely present the real Jefferson to interested laymen. He is seeking to overturn competing schools of thought on Jefferson that have emerged over the years, and he does so in careful and systematic fashion. In navigating the thickets of recent scholarship and uncovering the real Thomas Jefferson, Bassani is an outstanding guide.

This article originally appeared in the December 2011 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

The federal constitution ratified by the people of the States provided for a limited government to handle specified joint affairs of the States. The document describes itself not as “the U.S. Constitution” or the “Constitution of the United States,” but as a “Constitution FOR the United States of America.” With this in mind, read what follows in the preamble as the purposes of this instrument: “forming a more perfect Union,” “common defense,” and “general welfare.” Throughout the document “United States” is a plural (the States United) and treason against the United States consists of levying war against THEM.

As clear and simple as these facts are and have always been, grasping them seems to be beyond the abilities of presidents, congresspersons, supreme court justices, and professors of “Constitutional Law” at the most prestigious institutions.

In recent times the abuses of these people (what the Founders would have described as “usurpations” justifying rebellion) have run amuck, distorting an already wounded constitution beyond recognition. Ambition, rent-seeking, willful historical ignorance, deceit, ideology, and the lust for power (which the Founders hoped to guard against) have rendered the real constitution of our forefathers virtually null and void. This has prompted serious citizens to re-expound what the Constitution for the United States is supposed to be. There have been good books in this vein by Professors Thomas Woods, Walter K. Wood, and Kevin Gutzman, and by William J. Watkins and Judge Andrew Napolitano.

James Madison is reputed by those who don’t know any better to be the “Father of the Constitution.” In fact, Madison lost more votes than he won at Philadelphia, although he did more maneuvering and scribbling than any other delegate. In his almost half-century of post-ratification life Madison was all over the place, contradicting himself numerous times on constitutional interpretation. But Madison himself in one of his more lucid moments tells us where we should look for the meaning of the Constitution. The meaning of the Constitution, he avowed, is to be found in the understanding of those who ratified it, who alone gave what was merely a proposal all the authority it possesses.

The latest contribution to this field is The Founding Fathers Guide to the Constitution by Professor Brion McClanahan, just published by Regnery History. McClanahan’s treatment of the subject is in many ways the best, a concise, hard hitting constitutional handbook that goes right to the true source of understanding without being diverted by later commentaries and judicial opinions. What the drafters of the Constitution meant is revealed in the first place but not exclusively or even primarily by their discussions and votes, including the ideas that were voted down. (Many of those reappeared later touted as legitimate federal powers.)

So we must look for understanding at the discussions that preceded the ratification conventions and at the conventions themselves. McClanahan knows this ground thoroughly and tells us in convincing chapter and verse on each article what those who ratified the Constitution intended and, perhaps more importantly, what they did not intend.

The opponents of the Constitution feared that the document would prove an instrument for the incremental establishment of a centralized dictatorship over the people. They were right. But, as McClanahan makes clear, the proponents of the Constitution swore point by point that the powers granted were limited and no cause for alarm. These assurances persuaded some of the doubtful. Ratification would never have passed otherwise, and, as it was, it only passed with assurances that amendments would be swiftly adopted and with several States making it clear that their ratification was revocable.

The Federalist, which we see cited all the time as the key to the Constitution is speculation and was never ratified by anybody. But handicapped thinkers read Madison’s philosophical ruminations, nearly all of which have been proved superficial and wrong, and imagine themselves participating in deep thoughts about government and learning about the true Constitution. This is part of the long-established practice of treating the Constitution as something sacred handed down by divine wisdom rather than understanding it by its real history.

So in interpretation we ought to be guided by what the proponents of the Constitution plainly said it intended. This is what McClanahan elucidates point by point. If we accept what its proponents said, then those who ratified it believed that it established a limited federal power. Third-string “political philosophers” and “Constitutional scholars,” and even learned jurists, have made an icon out of The Federalist, but it is only one of many discussions of the Constitution. It was a partisan document designed to overcome the objections of New York, and was not very convincing to its audience since ratification passed in New York by the narrowest possible margin Furthermore, it discusses the Constitution as it was merely a proposal under consideration and not the Constitution as ratified by the people of the States, who made their intentions clear in the undisputable language of the 10^th Amendment.

The authors – Madison, Hamilton, and Jay – were all disappointed that the Constitution did not centralize power as much as they would have liked, yet realized what they had to say to win over the majority. On the part of Alexander Hamilton, contributions to The Federalist were outright dishonest, because once he got into power he worked to do all sorts of things that he claimed the Constitution did not authorize.

The Constitution is there. It can still be known and understood by honest citizens. As McClanahan writes, the real Constitution is a “limiting document,” not a grant of limitless power. Whether that Constitution can ever be established again is a question of political will and whatever is left in the American people of a capacity for self-government.

Clyde Wilson [send him mail] is a recovering professor. Now that he is no longer a professor of history he can at last be a real historian. He is the editor of The Papers of John C. Calhoun. His forthcoming book,Forgotten Conservatives in American History (Pelican, 2012), is co-authored by Brion McClanahan.

Copyright © 2012 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Get the Jefferson T-Shirt Here!

by Tom Woods

Someone on my Facebook fan page asked about a letter Thomas Jefferson wrote to James Madison on October 28, 1785. The person said his leftist friends were waving this letter around as evidence that Jefferson was some kind of semi-socialist wealth redistributionist. I contacted my friend Marco Bassani, professor at the University of Milan and author of the excellent book Liberty, State, and Union: The Political Theory of Thomas Jefferson. One of the major points in that book is that Jefferson was in fact a Lockean natural-rights thinker who conceived of property rights as natural, not conventional (i.e., government-granted).

Here’s the letter in question, and what follows is Professor Bassani’s reply.

First of all one has to understand that Thomas Jefferson was not Locke, Hobbes, or Marx: inconsistencies are to be found here and there, especially in private correspondence. His correspondence with Madison in particular is full of these things. The letter is TJ to James Madison, 28 Oct. 1785, Papers 8:681-82.

He is writing from Paris to his friend Madison, whom he believes to be too conservative.

He meets a poor woman and gives her some money for telling him directions. “This little attendrissement, with the solitude of my walk led me into a train of reflections on that unequal division of property which occasions the numberless instances of wretchedness which I had observed in this country and is to be observed all over Europe” [emphasis added]. He is not talking about the U.S., or speaking in general. He just sees the Revolution coming and speculates about wealth. Thus:

The property of this country is absolutely concentered in a very few hands…. But after all these comes the most numerous of all the classes, that is, the poor who cannot find work. I asked myself what could be the reason that so many should be permitted to beg who are willing to work, in a country where there is a very considerable proportion of uncultivated lands? These lands are kept idle mostly for the aske of game. It should seem then that it must be because of the enormous wealth of the proprietors which places them above attention to the increase of their revenues by permitting these lands to be laboured.

Nothing socialist so far.

I am conscious that an equal division of property is impracticable. But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree is a politic measure, and a practicable one.

This is the only measure he actually always and consistently favored.

Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions of property in geometrical progression as they rise.

Jefferson is stating a means, not saying he agrees with such an extreme measure. In fact, he always opposed it, having written that the tax system must “be equally and fairly applied to all. To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare [give] to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, ‘the guarantee to every one of a free exercise of his industry, and the fruits acquired by it.’ If the overgrown wealth of an individual be deemed dangerous to the State, the best corrective is the law of equal inheritance to all [of his kin] in equal degree; and the better, as this enforces a law of nature, while extra-taxation violates it. (Thomas Jefferson, Note in Destutt de Tracy’s Political Economy, 1816.)

To continue with Jefferson’s letter to Madison:

Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labour and live on. If, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be furnished to those excluded from the appropriation. If we do not the fundamental right to labour the earth returns to the unemployed. It is too soon yet in our country to say that every man who cannot find employment but who can find uncultivated land, shall be at liberty to cultivate it, paying a moderate rent. But it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.

All this is a revisit of John Locke, especially the “Lockean proviso” we find in Locke’s Second Treatise.  In the state of nature, Locke held, a stringent condition that must be met in order for the acquisition of previously unowned property to be considered just was that following the appropriation, there must be “at least…enough, and as good left in common for others.” Thus Locke:

As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property…. God and his reason commanded him to subdue the earth—i.e., improve it for the benefit of life and therein lay out something upon it that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

Taken at face value, the Lockean proviso would result in a complete prohibition of appropriation in the state of nature. As Murray Rothbard has pointed out, “Locke’s proviso may lead to the outlawry of all private ownership of land, since one can always say that the reduction of available land leaves everyone else, who could have appropriated the land, worse off.”

Jefferson’s assertions concerning land and the sovereignty of the present generation is nothing more than an extension of the limits on exploitation set by Locke. Putting property to good use (a prohibition against waste) and the Lockean proviso (appropriation of goods without causing a deterioration in the condition of others) are restrictions that hold in the relations between generations.

Generations stand facing one another, as do whole nations or individuals in the state of nature. Therefore, the law of nature regulates their relations. It is the duty of a generation to leave land “enough and as good” for the following generations. This is evidently an extension of the proviso, because the properties are the same. One’s own successors do not enjoy a generic right to unexplored lands, but to the specific property already owned by their parents. Just as the new generations have the right to get property that is not burdened with debts, so also the “others,” those who do not participate in that specific appropriation, have exactly the same right to enjoy land “enough and as good” in the Lockean state of nature. Similarly, property cannot be exploited and destroyed, jeopardizing the future of the coming generations. Waste is not countenanced by the law of nature.

The sovereignty of the present generation can thus be defined as the right to receive a world in which the present has not been mortgaged by the ancestors. Every nineteen years, according to Jefferson’s calculations (which were based on the mortality tables formulated by Georges Louis Leclerc, Comte de Buffon), a generation comes into the world. This generation has the right to a fresh start, whereas the one that preceded it had the duty not to destroy the world in which the present generation must live. It is a radical Lockean outlook, not a pseudosocialist one.

Thomas E. Woods, Jr., [visit his website] a senior fellow of the Ludwig von Mises Institute, is the author of eleven books, most recently Rollback: Repealing Big Government Before the Coming Fiscal Collapse and Nullification: How to Resist Federal Tyranny in the 21st Century, as well as the New York Times bestsellers Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse and The Politically Incorrect Guide to American History. He is also the editor of five other books, including the just-released Back on the Road to Serfdom.

Constitutional theorist Daniel Dreisbach writes, many Americans “made salient contributions in thought, word, and deed to the construction of America’s republican institutions.” One of them was Hugh Williamson. Few today have heard of him, and almost everyone overlooks this founding father when trying to learn of the “original intent” of the Constitution. That’s a mistake. To ignore Williamson (and founders other than the usual five or six historical figures) is an inadequate approach to understand proper originalism.

When bypassing those lesser-known founders, we view the past through a distorted lens. And despite our best efforts, that view will be at best an image with a fuzzy outline that prevents us from seeing otherwise distinguishing and valuable features.

“Original intent,” then, mistakenly becomes nothing other than the opinions of a handful, and we ignore the role of the ratifying conventions and the wisdom of other leading public figures in understanding the process of ratification and the federal underpinnings of our government.

An examination of Hugh Williamson and his ideas sheds more light on the path to understanding “original intent.” Why? He was one of the most active delegates at the Philadelphia Constitutional Convention, and his opinions were respected across America.

Williamson, an Edenton resident, delivered more than 70 speeches at the convention and was appointed to five committees (the second most of any delegate). He had a particularly strong interest in economic questions, serving on committees to consider questions such as state debts and the slave trade.

While considering these questions of immediate import to the young republic, Williamson made a large number of smaller contributions to the Constitution. After other delegates proposed that national senators serve seven-year terms, Williamson suggested the six-year term that eventually resulted. Moreover, his comments on the procedure for trying the president after impeachment affected the outcome of that debate; while delegates had considered granting the Supreme Court the power to try the president, they eventually deemed trial by the Senate a more desirable option.

After the convention, Williamson wrote a number of essays supporting the new Constitution. On November 8, 1787 — at the same time the initial essays of what would become The Federalist Papers were written — Williamson spoke to the people of Edenton and Chowan County, and to North Carolinians, about the reasons for ratifying the Constitution and countered arguments by Antifederalists.

This speech was later titled “Remarks on a New Form of Government,” and the next year it was republished in papers in New York, Pennsylvania, South Carolina, and Massachusetts, when the people in those states were debating the merits of the Constitution and whether it needed a Bill of Rights.

“Remarks” is, for lack of a better word, remarkable. Many of the Federalist Papers are so verbose and convoluted — and almost dodgy at times — that in some ways they were and remain esoteric. Williamson is more concise and straightforward. He seems to have made efforts to reach a broader audience without dumbing down sophisticated arguments. With strategic placement of appeals, a sense of national honor, and literary flair, the former Presbyterian ministerial student, member of the American Philosophical Society, and physician emphasized the weaknesses of the Articles of Confederation and the strengths of the Constitution.

In particular, Williamson pointed out how North Carolina could benefit from ratifying the Constitution. The state was at a geographic disadvantage in regards to ports and trade, and could benefit from national trade and uniform economic practices. Being part of something bigger, in essence, could benefit individual Tar Heels and the overall North Carolina economy.

Throughout the essay, Williamson argued for securing liberty and property, and he thought that the Constitution would accomplish that. If he was wrong, Williamson writes, he hoped his political opponents would “charge those errors to the head, and not to the heart.”

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.

On a typical day, Mary leaves her home in the morning to go to work. Once on the road, her vehicle passes by multiple traffic and red light cameras that monitor her driving in the event that she might break a traffic law. Upon arriving at work, she is monitored by security cameras as she enters the building and rides in an elevator up to her desk. After work, Mary stops by her local grocery store to pick up a few items, where her every move is tracked by closed circuit security cameras from the time she enters the parking lot to the time she leaves. On her way home, she is stopped at a police sobriety checkpoint, where she is required by law enforcement to hand over her driver’s license for review and submit to a breathalyzer test even though there is no reason to suspect that she is impaired.

John travels by plane frequently for his business. Today, after picking up his ticket, he is selected for enhanced security screening. John knows that he can choose to opt out of the body scanners, which take naked pictures of his body through his clothes, because of the questionable safety of the devices. Instead he opts for a pat down. He is required to leave his personal items unsupervised while his body and genitals are probed and prodded by a TSA agent. While he is receiving his pat down, John also notices a small child being subjected to the same pat down. When John’s pat down is complete he is allowed to return to his property, he discovers a TSA agent going through his credit cards, cash, receipts, and other items in his wallet.

Obviously Mary and John are fictional characters, but their stories are real and shared by millions of Americans every day. Our world is one in which we have been so conditioned to tolerate gross invasions of our persons and property that we simply can’t fathom what it is to be truly “secure in our persons.”

The Fourth Amendment to the U.S. Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, 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.

To understand the Fourth Amendment, we need to go back to the conditions that led the Founders to write it into the fabric of the Constitution. During the colonial era, the British government would issue documents called writs of assistance to authorize law enforcement to perform searches. These writs of assistance were a major source of controversy in the years leading up to the American Revolution, as unlike a modern search warrant, the writs were vague in nature. A writ of assistance did not require probable cause in order to be issued, nor did it have to specify the place to be search or the items for which law enforcement was to search. Any items that were suspected to be untaxed or illegally imported could be seized – with or without proof of any illegal activity. Often the officials who seized these items could keep or sell whatever they seized, leading to rampant abuse of the writs of assistance.

The Founders wanted to prevent these kinds of governmental abuses in their newly formed republic. They wanted people to be truly free to live as they pleased without interference by an overreaching nanny state. Because of their wisdom, Americans were once free to travel from place to place without their every move being recorded on surveillance cameras, without drivers licenses, and without being stopped randomly by police or searched by Transportation Safety Officers in the name of “safety” when there was no suspicion of a crime. This is what it meant to the Founders to be secure in their persons.

The state and local governments are by no means innocent in this downward spiral of personal freedom and security. It is the state and local governments that have either implemented or allowed traffic cameras, red light cameras, and warrantless stops by police with no suspicion of wrongdoing – all in the name of “safety.” Further, the state governments have neglected their constitutional duty to interpose themselves between the federal government and the people when the federal government oversteps the boundaries set forth in the Constitution. Clearly the battle the be secure in our persons is not limited to the federal level.

Now the federal government wants to go even further. We have government health care that will likely overtake and wipe out private health insurance for most people, and as a result the federal government will now have access to all sorts of detailed information on the state of our breasts, prostates, and colons among all the other information they collect on us. Where in the Constitution does it say that the government should be able to surveil our colons? That’s right, it doesn’t. The government is probing more and more deeply into our lives, into places where the Constitution says it has no business being. So what the heck happened between then and now?

“If you want to control the future, you must strip the next generation’s ability to imagine anything different.” – Ernie Hancock

We Americans have become so conditioned to accept whatever our government throws at us in the name of “safety” that we have completely forgotten what it is to live free and be secure in our persons. Our lives are so filled by surveillance cameras, worries about terrorism, fears about food safety, fears about illegal drugs, and other issues that we have forgotten the basics of our republic’s founding. As Mr. Hancock’s statement points out, if we can no longer imagine what it is to be free, then our future is going to be one where we lose more and more of our freedoms to the surveillance of the nanny state. Patrick Henry didn’t give his impassioned speech demanding “give me safety, or give me death.” He was prepared to give up safety and in fact his very life when he said:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

What would Patrick Henry say if he had to go through airport security today? I imagine some TSA agents and all Americans present would get a very fiery and passionate earful about allowing the freedoms that he and the rest of our Founders fought so hard to gift us to waste away. Just as we imagine Patrick Henry giving TSA agents a tongue lashing, we also have to start imagining the world in which we want to live just as Mr. Hancock pointed out. This is not easy, as quite frankly, it’s a world in which most people alive today have never lived. It was a world in which our Founders had never lived either, but they dared to imagine a different world and worked to bring their imagining to reality. Thanks to them, that world existed here once, and it can again. Like our Founders, we must imagine that world and work to make it happen at all levels of government – federal, state, and local.

So one we imagine true freedom and security, how do we make it happen? Fortunately, our Founders foresaw the day when America might not be the free republic they created. They didn’t want future generations to have to suffer through a bloody war to reclaim the freedoms for which they fought. That is why the Founders gave us the tools to peacefully re-imagine our republic in the form of the Tenth Amendment to nullify the unconstitutional actions of the federal nanny state. It’s up to us to fire up our imaginations and step up to the plate and use the tools our Founders gave us to take back those freedoms so that we can once again be truly secure in our persons.

Lesley Swann [send her email] is the state chapter coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th Amendment Group. She is a native of Anderson County, Tennessee.

Copyright © 2011 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Paine’s writings and philosophies still hold true today, but they are under attack.

On January 10-11, 2011, in commemoration of his historic work, we defend the philosophy held within his writings by holding a mass donation day in support of another revolutionary effort for the cause of liberty, The Tenth Amendment Center.

Please pledge right now to confirm your commitment to donate on January 10-11, 2011. www.commonsensemoneybomb.com

*******
Of the Origin and Design of Government
by Thomas Paine, Excerpted from Common Sense

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.

In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest; they will then represent the first peopling of any country, or of the world. In this state of natural liberty, society will be their first thought. A thousand motives will excite them thereto; the strength of one man is so unequal to his wants, and his mind so unfitted for perpetual solitude, that he is soon obliged to seek assistance and relief of another, who in his turn requires the same. Four or five united would be able to raise a tolerable dwelling in the midst of a wilderness, but one man might labour out the common period of life without accomplishing any thing; when he had felled his timber he could not remove it, nor erect it after it was removed; hunger in the mean time would urge him to quit his work, and every different want would call him a different way. Disease, nay even misfortune, would be death; for, though neither might be mortal, yet either would disable him from living, and reduce him to a state in which he might rather be said to perish than to die.

Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which would supersede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but Heaven is impregnable to vice, it will unavoidably happen that in proportion as they surmount the first difficulties of emigration, which bound them together in a common cause, they will begin to relax in their duty and attachment to each other: and this remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue.

Some convenient tree will afford them a State House, under the branches of which the whole Colony may assemble to deliberate on public matters. It is more than probable that their first laws will have the title only of Regulations and be enforced by no other penalty than public disesteem. In this first parliament every man by natural right will have a seat.

But as the Colony encreases, the public concerns will encrease likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet on every occasion as at first, when their number was small, their habitations near, and the public concerns few and trifling. This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act were they present. If the colony continue encreasing, it will become necessary to augment the number of representatives, and that the interest of every part of the colony may be attended to, it will be found best to divide the whole into convenient parts, each part sending its proper number: and that the ELECTED might never form to themselves an interest separate from the ELECTORS, prudence will point out the propriety of having elections often: because as the ELECTED might by that means return and mix again with the general body of the ELECTORS in a few months, their fidelity to the public will be secured by the prudent reflection of not making a rod for themselves. And as this frequent interchange will establish a common interest with every part of the community, they will mutually and naturally support each other, and on this, (not on the unmeaning name of king,) depends the STRENGTH OF GOVERNMENT, AND THE HAPPINESS OF THE GOVERNED.

Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. Freedom and security. And however our eyes may be dazzled with show, or our ears deceived by sound; however prejudice may warp our wills, or interest darken our understanding, the simple voice of nature and reason will say, ’tis right.

I draw my idea of the form of government from a principle in nature which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered; and with this maxim in view I offer a few remarks on the so much boasted constitution of England. That it was noble for the dark and slavish times in which it was erected, is granted. When the world was overrun with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsions, and incapable of producing what it seems to promise is easily demonstrated.

Absolute governments, (tho’ the disgrace of human nature) have this advantage with them, they are simple; if the people suffer, they know the head from which their suffering springs; know likewise the remedy; and are not bewildered by a variety of causes and cures. But the constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies; some will say in one and some in another, and every political physician will advise a different medicine.

I know it is difficult to get over local or long standing prejudices, yet if we will suffer ourselves to examine the component parts of the English Constitution, we shall find them to be the base remains of two ancient tyrannies, compounded with some new Republican materials.

First. — The remains of Monarchical tyranny in the person of the King.

Secondly. — The remains of Aristocratical tyranny in the persons of the Peers.

Thirdly. — The new Republican materials, in the persons of the Commons, on whose virtue depends the freedom of England.

The two first, by being hereditary, are independent of the People; wherefore in a CONSTITUTIONAL SENSE they contribute nothing towards the freedom of the State.

To say that the constitution of England is an UNION of three powers, reciprocally CHECKING each other, is farcical; either the words have no meaning, or they are flat contradictions.

First. — That the King it not to be trusted without being looked after; or in other words, that a thirst for absolute power is the natural disease of monarchy.

Secondly. — That the Commons, by being appointed for that purpose, are either wiser or more worthy of confidence than the Crown.

But as the same constitution which gives the Commons a power to check the King by withholding the supplies, gives afterwards the King a power to check the Commons, by empowering him to reject their other bills; it again supposes that the King is wiser than those whom it has already supposed to be wiser than him. A mere absurdity!

There is something exceedingly ridiculous in the composition of Monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required. The state of a king shuts him from the World, yet the business of a king requires him to know it thoroughly; wherefore the different parts, by unnaturally opposing and destroying each other, prove the whole character to be absurd and useless.

Some writers have explained the English constitution thus: the King, say they, is one, the people another; the Peers are a house in behalf of the King, the commons in behalf of the people; but this hath all the distinctions of a house divided against itself; and though the expressions be pleasantly arranged, yet when examined they appear idle and ambiguous; and it will always happen, that the nicest construction that words are capable of, when applied to the description of something which either cannot exist, or is too incomprehensible to be within the compass of description, will be words of sound only, and though they may amuse the ear, they cannot inform the mind: for this explanation includes a previous question, viz. HOW CAME THE KING BY A POWER WHICH THE PEOPLE ARE AFRAID TO TRUST, AND ALWAYS OBLIGED TO CHECK? Such a power could not be the gift of a wise people, neither can any power, WHICH NEEDS CHECKING, be from God; yet the provision which the constitution makes supposes such a power to exist.

But the provision is unequal to the task; the means either cannot or will not accomplish the end, and the whole affair is a Felo de se: for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and tho’ the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual: The first moving power will at last have its way, and what it wants in speed is supplied by time.

That the crown is this overbearing part in the English constitution needs not be mentioned, and that it derives its whole consequence merely from being the giver of places and pensions is self-evident; wherefore, though we have been wise enough to shut and lock a door against absolute Monarchy, we at the same time have been foolish enough to put the Crown in possession of the key.

The prejudice of Englishmen, in favour of their own government, by King, Lords and Commons, arises as much or more from national pride than reason. Individuals are undoubtedly safer in England than in some other countries: but the will of the king is as much the law of the land in Britain as in France, with this difference, that instead of proceeding directly from his mouth, it is handed to the people under the formidable shape of an act of parliament. For the fate of Charles the First hath only made kings more subtle — not more just.

Wherefore, laying aside all national pride and prejudice in favour of modes and forms, the plain truth is that IT IS WHOLLY OWING TO THE CONSTITUTION OF THE PEOPLE, AND NOT TO THE CONSTITUTION OF THE GOVERNMENT that the crown is not as oppressive in England as in Turkey.

An inquiry into the CONSTITUTIONAL ERRORS in the English form of government, is at this time highly necessary; for as we are never in a proper condition of doing justice to others, while we continue under the influence of some leading partiality, so neither are we capable of doing it to ourselves while we remain fettered by any obstinate prejudice. And as a man who is attached to a prostitute is unfitted to choose or judge of a wife, so any prepossession in favour of a rotten constitution of government will disable us from discerning a good one.

“We have it in our power to begin the world over again”

Tom Paine’s powerful words hold just as much meaning today as they did on January 10, 1776 when he first published Common Sense – what historians call “the most popular pamphlet of the entire revolutionary era.”

With a federal government that rarely follows the rules that govern it – the Constitution, that is – there’s a lot of work to do to “begin the world over again.” Our moment is now.

THE ESSENTIAL QUESTION

When the federal government violates the Constitution – what do we do about it? Do we lobby congress and ask federal politicians to limit federal power? Do we go to court and ask federal judges to limit federal power? Do we “vote the bums out” in the hopes that the new bums will give back all that power?

What do we do about it? That’s the question that more and more people are asking every day. Why? Because those three options are what we the people have been employing for nearly a century. In all that time, we the people have been marching and protesting. We the people have sued and voted bums out.

The result? I hate to be the bearer of bad news folks, but all these efforts have been a complete and utter failure. It doesn’t matter what political party is in power in Washington D.C. It doesn’t matter what individual occupies the White House either. Year in and year out, federal power grows and your liberty is reduced.

PARCHMENT

So what DO we do about it?

In Common Sense, Paine answered that question for us – “When we are planning for posterity, we ought to remember that virtue is not hereditary.”

While the ratification of the Constitution created a system of government to decentralize power and create fertile ground for liberty – if we’re relying on the federal government to police and limit itself, that power will always grow. In fact, other great founders like Thomas Jefferson and James Madison warned us that if the federal government ever became the sole and exclusive arbiter of the extent of its own powers, those powers would never be limited – regardless of elections, courts, separations of powers or any of the other vaunted parts of the American system.

As Paine warned us – “virtue is not hereditary.” So even if we were to have a perfect constitutionalist president. Or a Congress full of the same, there’s no guarantee that it would last, and sooner or later those that seek power for evil purposes would get in control. The history of the United States is all the proof we should ever need to understand this stark reality.

DUTY

The existence of the Constitution itself will never protect liberty. You need to. I need to. Our friends and family need to. It’s up to us.

Where does that leave us?

Well, it’s quite simple: We the People need to learn to exercise our rights whether they the government want us to or not!

ACTION FOR TODAY

Since 2006, the Tenth Amendment Center has been championing this message and consistently promoting liberty through decentralization. While the task may seem insurmountable at times – no matter how much the odds seem stacked against freedom, it’s essential to do what’s right. And for the Tenth Amendment Center, doing what’s right is pretty straightforward:

We demand adherence to the Constitution. Every issue, every time. No exceptions, no excuses.

But we need your help to continue these efforts. On January 10th, 2011, in commemoration of Thomas Paine’s historic work, we defend the philosophy held within his writings by holding a mass donation day in support of this revolutionary effort for the cause of liberty, The Tenth Amendment Center.

If you agree that an unconstitutional “law” is no law at all – stand up for the constitution and pledge to support the center in our work right now.

Only with your help can we being the world over again. So if you believe in the constitution and the message of the Tenth Amendment Center – the time to act is now. Not next year, not next month, and not next week. Today. Not tomorrow. Now.

Help us celebrate the anniversary of Common Sense. Help is what we need and help is what you can give us today. Click the banner below and pledge to support this movement now!

Modern American’s seem to have lost sight of essential truths clear to the country’s founders more than 200 years ago.

Today, everybody from mega agribusinesses executives to consumer advocates are lauding the Senate for passing a massive overhaul of the “food-safety” system. The legislation would grant broader inspection power to the F.D.A., allow the government to mandate product recalls, oversee farming and regulate the food production industry to an even greater degree.

“Everyone who eats will benefit,” said Caroline Smith DeWaal, food safety director of the Center for Science in the Public Interest, an advocacy group. “F.D.A. will have new tools to help ensure that we have a safer food supply that causes fewer outbreaks and illnesses.”

Benjamin Franklin would have likely taken a different view.

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

In fact, the FDA Food Safety Modernization Act represents yet another massive expansion of federal power, much of it unconstitutional. (And before you send me emails justifying this monstrosity based on the commerce clause, please do us both a favor and do a little research on the meaning of commerce as understood by the framers. Click here.)

Sadly, if history provides any insight at all, and it usually does, this act will do nothing to actually protect the American people. It will instead serve as a tool for big corporations to gain a competitive advantage over small, local farms and food producers. Don’t believe me? Ask yourself this – why else would big companies support legislation that on its face will exact huge costs in time, money and resources?

And it will also give politicians and bureaucrats yet another lever to maneuver and manipulate for their own purposes.

True to form, power hungry politicians and progressive thinkers have churned up the American public with scare tactics to gin up support for another expansion of government power –  as always, at the expense of liberty.

Proponents say the act will protect Americans from foodborne illnesses. But does the problem justify such a massive, expensive, intrusive cure?

Not really.

According the the Centers For Disease Control, only about 1,500 people per year die from salmonella and other known foodborne pathogens. Another 3,500 people die  from illnesses stemming from unknown foodborne pathogens. Many of those deaths result from improper food handling and cooking after purchase.

Certainly, 5,000 deaths is 5,000 deaths too many. Nobody wants to see fellow Americans die. Nobody wants tainted food on grocery shelves. But protecting citizens from every danger, risk and threat is not the role of the federal government – or any government for that matter.

But nanny state politicians continue taking us for a spin on a never ending carousel. Several thousand deaths under a heavily regulated system creates the panic necessary to enact even more expansive, overreaching regulation.

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To live life invites the risk of death. No law, act or government edict can mitigate that reality. Franklin was right. When we begin looking to others for protection from every eventuality, we necessarily give up our freedom, and in the end enjoy no greater safety.

Alexander Hamilton wrote of the threat to liberty posed by war. His reasoning applies equally to government’s other attempts to “protect” its citizens.

“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

Note: the legislation passed 73-25. Click here to see how your Senators voted.

Recently an article was published at lewrockwell.com wherein the author, Kirkpatrick Sale, asserts that it was the Founders’ evident intention to establish a powerful federal government. In fact, contrary to what many constitutionalists may believe, the Constitution as framed was intended to, and was successful in, paving the way for the massive federal usurpations that plague the United States today.

Mr. Sale wants to “wake up these ‘Tenthers’ and tell them that it’s a waste of time to try to resurrect that document [the Constitution] in order to save the nation — because the growth of government and the centralization of powers is inherent in its original provisions.” In fact, proclaims Mr. Sale, the Constitution “is not a document that will lead them to liberty and sovereignty.”

Despite some of the questionable activities listed in Mr. Sale’s résumé, I shall restrict my remarks to the refutation of the theses posited by him in the lewrockwell.com article. In this brief, I shall attempt to prove that the conclusions as to the Founders’ intentions have been grossly misconstrued by Mr. Sale in a blatant effort to wrest them to fit his notion of the best method of opposing tyranny.

Before beginning his unusual exegesis of the Constitution and the words of the Founders, Mr. Sale turns his sights on the Tenth Amendment Center and opens fire. After briefly quoting a segment of the Tenth Amendment Center’s mission statement, Mr. Sale explains that the true aim of the Tenth Amendment Center is to advocate for a “rigid interpretation of that amendment reserving to the states the powers not expressly given to the Federal government.” I do not speak for the Tenth Amendment Center — their spokesmen are able and informed — but as an attorney I would advise them to plead guilty to this charge.

As for the Tenth Amendment, Mr. Sale insists that it was no more than an afterthought for the Founders whose true affinity, he claims, was for a big, powerful, supreme central authority. As evidence of the Founders’ disdain, Mr. Sale points out that this “deficiency in that Constitution” was the last of ten amendments known as the Bill of Rights.

Every student of American history and the Constitution should be aware that a great many bills were considered for inclusion into the Bill of Rights. After lengthy congressional deliberation, however, 12 of the proposed measures were selected for a final vote, 10 of which passed. On December 15, 1791 these 10 amendments were ratified by the requisite number of states, thus being incorporated into the original constitution (one of the two “lost” amendments was ratified in 1992 and became the 27th Amendment). So, the Tenth Amendment is no more “at the end” of the Bill of Rights than is the First Amendment as a matter of legislative history.

With the Tenth Amendment Center and unincorporated “Tenthers” thus dismissed, Mr. Sale wheels around and takes aim at the Constitution Party. This group also suffers, he says, from a woeful lack of understanding of constitutional principles. Says Mr. Sale, the Constitution Party “has the idea that the nation’s problems can be solved by ‘a renewed allegiance’ to the Declaration of Independence and the Constitution and hence a return to ‘limited government.’ ”

Again, I’ve not been retained by the Constitution Party to represent their interests, but I’ll take this one pro bono and advise them to plead “no contest” to the charges levied against them.

The problem with all of these constitutionalists, argues Mr. Sale, is that they don’t understand that this “bloated, overstretched, intrusive, and unwieldy government” is exactly what the Founders had in mind when they created a powerful central government. Such usurpations, he insists, are “inherent in its [the Constitution’s] original provisions.” In his words, “we have a big overgrown government because that’s what the Founding Fathers founded….”

Before my ultimate rebuttal, I will allow Mr. Sale to present his final few pieces of evidence of the “true” purpose behind the government formed by the “renegade Congress” that met “in secret.” If it please the Court.

Turn your attention, Mr. Sale demands, to the phrase “right there at the start” of the Preamble to the Constitution. “We, the People,” it reads, formed this government. If the “amorphous ‘people’” control the government, warns Mr. Sale (from behind the skirts of the noble Patrick Henry), then they could “willy-nilly ignore the individual states” and thus obliterate all vestiges of the sovereignty of the several states.

There are two problems with this interpretation. First, there is the problem of context and second, there is the problem of comprehension.

Simply reading the rest of the paragraph would solve the first weakness in Mr. Sale’s analysis of the Preamble. The sentence he quotes does indeed recognize the natural sovereignty of the people (an unassailable principle of republicanism); however, it continues by recognizing the pre-existing sovereignty of another entity — the states. In fuller context, the Preamble states, “We, the People, of the United States of America….” Therefore, the Founders memorialized their correct understanding of self-government: that is, that we, the people, are the ultimate sovereigns (so endowed by our Creator), but we have established intermediaries (the states) and these too are to be represented in the new government.

As for Mr. Sale’s conclusion that “ ‘the people’ spoke through Congress,” he is partially correct. The people do speak through Congress by way of the popular election of members of the House of Representatives. Perhaps Mr. Sale is unaware that the legislative branch as established by the conspiring Founders is bicameral. The other house of Congress, the Senate, as originally constituted, was the branch wherein the interests of the states were to be protected. The fact that the 17th Amendment destroyed this defense against the unchecked growth of the central authority is a crime of which others are to be accused, not the Founders. In fact, to blame the Founders for the lack of state representation in Congress is akin to blaming homebuilders for the damage later caused by termites.

In several of the letters collected in the volume that has come to be known as The Federalist Papers, no lesser lights that James Madison, Alexander Hamilton, and John Jay argued vigorously for the Constitution’s model of federal arrangement. Please read Federalist 9, 10, 45, 51, and 62 for a primer on this subject. As coroners examining the lifeless bodies of the dead republics of history, the Founders sought an inoculation for the fatal malady that affected all self-governing nations that came before. The cure they devised was federalism: co-equal and co-existent sovereignties, each with separate spheres of power. As for the particular ratio of the ingredients in this tonic, Madison wrote in Federalist No. 45: “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.” No further questions, Your Honor.

Finally, in his accusation that the Founders’ insidious purpose to “abolish and annihilate all State governments” is revealed by the havoc that has been wreaked by the so-called Commerce Clause and General Welfare Clause, Mr. Sale is again seeking indictment of the innocent for a crime they did not commit.

As with his earlier assertions, here too, Mr. Sale mistakes the intent of the Founders for the intent of subsequent usurpers sitting as justices of the Supreme Court. It was not in Philadelphia that the crime Mr. Sale is prosecuting was committed. It was in Washington, D.C. at the dawn of the Progressive Era that the Supreme Court destroyed the foundational doctrine of enumerated powers. Then, about a year later, it split the Bill of Rights into two separate and unequal parts: those rights that it deemed fundamental and those that are not so protected.

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In the first case, the Court created from whole cloth a new General Welfare clause with not a single thread from the one woven by the Founders remaining in the new garment. In the next case, the Court converted the Commerce Clause from a shield against governmental overreaching into a powerful weapon of legislative tyranny. There is no basis in natural or constitutional law for this judicial gerrymandering.

So, ladies and gentlemen of the jury, I leave the case in your capable hands. You are called to decide whether, as Mr. Sale avers, the Framers were “centralists” and “nationalists” who all along, despite their own words to the contrary, secretly intended to establish in the original Constitution a federal leviathan capable of and committed to abolishing state sovereignty — or, as I have herein demonstrated, that as with the wheat field in the parable spoken by our Lord, while we slept an enemy (in this case, the Supreme Court and a combining cabal of legislative and executive despots) has unlawfully trespassed and cruelly sown tares into the fruitful plot planted long ago by our noble Founding Fathers.

Thank you.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author

The following is based off a speech given at Nullify Now! Orlando on 10-10-10

Isn’t it incredible that, despite all the historical evidence to the contrary, that anyone can still believe that the founders would’ve fought a long, cruel, bloody war just to exchange one central, overpowering government for another? And yet, these guys sitting on the courts want to define the limits of our freedom for the extension of greater government control. That is not the founders’ legacy. That’s not why we’re here today.

For these out of touch elitists, the Bill of Rights is just a historical curiosity – it’s quaint and doesn’t mean anything. But we know that the Bill of Rights is the very essence of state sovereignty. That’s why it was created, and that wasn’t lost on the founders.

In fact, at the North Carolina ratifying convention Samuel Spencer said, “It appears to me that the state governments are not sufficiently secured and that they may be swallowed up by the great mass of powers given to congress.” Was that prophetic? Just look what we have today…

Oliver Ellsworth from Connecticut said, “The United States are sovereign on their side of the line of divided jurisdictions, the states on the other. Each ought to have the power to defend their respective jurisdictions.”

Another of our Yankee brethren, Mr Williams says “Are not the terms common defense and general welfare indefinite and undefinable terms? What checks have the state governments against such encroachments?” And that’s the questions we’re facing again today – what checks do the states have against such encroachments? The encroachments are out there, and they’re in our face every day. From Real ID to national health care and everything in between.

Clearly, the 10th Amendment was never intended to be a throwaway or a quaint relic. Its necessity in creation was brought about by clear and deliberate decision – by people who stingily delegated their sovereign authority to this limited powers agent they were creating. In our work here today, we’re dedicated to the repeal or nullification of all unconstitutional legislation that has been illegally imposed upon us by the general government.

All of us need to work together so we can implement simple steps of diligence. These should include, but not be limited to the promotion of state sovereignty legislation, including the nullification of unlawful general government acts. And when we talk about legislation to push back, we need to go further than just saying that we won’t participate. We need to say, “when you send your federal agents here to try and overturn sovereign state law, our constitutional sheriffs are going to put them in jail – and you can come pay their fine to get ‘em out!”

At the end of the revolution, the states were 13 free and independent countries. They created a limited powers government to handle things they felt could be better done at a central location. But never in anything I can read was there a desire to be anything but free and independent states. We’re members of a voluntary compact – not slaves to a federal leviathan.

In our states today, both sovereignty and solvency are in peril. Sovereignty’s betrayal for solvency’s temporary relief is always on the table between D.C. and our state capitols. It’s you and me, and the rest of us that have to be the obstacle to that short sale of freedom. If we don’t do it, who will? If not today, when?

Using fair but firm insistence and pressure, we must remind our states of the 10th Amendment decision we require of them. For every unlawful general government imposition, a home country interposition – we are not going to be slaves to illegal legislation. It is up to us to remind our states of Madison’s warning that encroachments by the central government must “excite the legislatures to watchfulness and impose upon them the strongest obligation and that is to preserve unimpaired the line of partition.” That line is blurred, and hardly exists anymore.

So today, let’s make up our minds – no longer are we going to accept grassroots buzzwords from politicians in place of results. Starting today, let us be real clear to those politicians – we will no longer accept general government theft of our liberties. No longer will we stand by idly while our pockets are picked by political parties to fund the perpetual welfare-warfare state. No longer will we tolerate a vast nationalist state that has become aggressive abroad and despotic at home, and has decided that the limits of its own power is no limit at all.

Here today, we’re contemporary tenthers – we stand in the shadow of those original tenthers like Richard Henry Lee, George Mason, Elbridge Gerry, James Monroe and Thomas Jefferson – and we stand in good company. If they were here, would they ask us, “what have you done with your inheritance?” It’s up to us today to answer that by humbly accepting that responsibility to restore sovereignty, restore the founders’ federalism, and above all, to be free once again.

Andrew Nappi [send him email] is the State Chapter Coordinator for the Florida Tenth Amendment Center.

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