The schoolboy version of the American system of government centers on the three-branch structure of the Federal Government established by the ratification of the Constitution in 1788. Integral to that structure are a system of checks and balances among those three branches and the division of powers between the Federal Government and the states. The Tenth Amendment makes that federalism principle explicit.

The dirty little secrets, however, are that the division of powers disappeared long ago, and the checks and balances do not work. Instead of a decentralized, republican system in which the Federal Government bears responsibility for only a few issues, then, Americans now groan under an unlimited central government whose taxing, spending, borrowing, and printing seemingly know no limits either of law or of sense.

To read through this tome is to be struck by the unalloyed banality of both Stevens’ writing and his mind. Stevens spent thirty-four years on the Court, and yet the 282 pages in his book include a 32-page Appendix reproducing the Constitution, the signatures affixed to the Constitution, and the amendments, two pages of acknowledgements, and several blank pages. In addition, he gives thirty pages over to an extremely shallow account of the history of the Supreme Court up to the middle of the twentieth century.In light of their distended significance, Supreme Court justices now occasionally bless the rest of us with their ruminations. The latest specimen of the genre is John Stevens’ Five Chiefs: A Supreme Court Memoir.

For example, Stevens’ account of Chief Justice Roger B. Taney’s tenure as chief justice is notably brief. Its one paragraph merely summarizes the Court’s outrageous decision in Dred Scott v. Sandford (1857) and says that, “The only good thing that can be said about that case is that Abraham Lincoln’s criticism of it in his famous debates with Stephen Douglas received nationwide attention and helped get him elected president.” (p. 20)An impressive intellect might have turned the excursion through the Court’s early history to good effect. Stevens, on the other hand, seems not to recognize the ways in which events he glosses over laid the groundwork for his own career.

Yet, Stevens actually based much of his performance as an associate justice on the foundation of Dred Scott. It was after all in Dred Scott that the Court invented the idea of what scholars and judges alike now call “substantive due process.” That idea is that the Fifth Amendment’s statement that, “nor shall any person … be deprived of life, liberty, or property, without due process of law” did more than guarantee that before one could be punished, he must first be afforded all of the incidents of the traditional Anglo-American adversarial process.

No, the Fifth Amendment’s Due Process Clause was used in Dred Scott as an empty vessel into which seven entirely partisan Democratic justices could pour their desired partisan outcome: a holding that Congress could not bar slavery from the western territories. Far from merely procedural, as it seemed to be (and had always been thought to be), the Due Process Clause was substantive.

When in the 1860s Congress came to draft the Fourteenth Amendment, it inserted a clause nearly identical to the Fifth Amendment’s Due Process Clause, this time applying the requirement to the states. Beginning in the early 20^th century, federal judges used this provision as an empty vessel into which they could pour all of their favorite policy outcomes, this time making them enforceable against the states.

Stevens makes clear what he does not mean: that the outcome is consistent with the intention of the people in adopting a particular legal or constitutional provision. He provides only the assertion that one must not be guided by any such intention.Stevens in the slim portion of the book on his own career trumpets various rights-creating lines of the Court’s recent product, such as the cases in which the justices invented various sexual rights enforceable against the states, various religious rights enforceable against the states, etc. He calls some of these outcomes “correct” without ever saying how one can know which outcome is correct.

Here we find the fundamental theoretical shortcoming of the current American regime: that no one ever consented to it. As I showed in The Politically Incorrect Guide to the Constitution, federal judges long ago abandoned the notion that constitutional interpretation was about, well, interpretation. Instead, Taney-like, they use constitutional cases – and, when it comes to enforcing made-up individual rights against state governments, Taney’s Dred Scott doctrine of substantive due process – as opportunities to impose their will.

This problem was uniquely grievous in the case of Justice Stevens. As the sole Supreme Court appointee of President Gerald Ford, Stevens was the sole justice appointed by a man who had never been elected either president or vice president. Even if one accepted the legitimacy of substantive due process as a way for people indirectly elected to enforce their superior wisdom on the rest of us, then, it would still be hard to see how Ford’s appointment of Stevens could justify wide-ranging legislative behavior by Stevens.

Stevens blithely accepts that the Supreme Court is a kind of super-legislature. Indeed, Five Chiefs gives not the slightest indication that Stevens has ever considered this matter. One might wonder whether he has thought about the Constitution much at all. For example, I am certain that every student in my recently concluded undergraduate course in American Constitutional History knows that the Bill of Rights is the first ten amendments to the US Constitution. Stevens, on the other hand, refers to “the first eight amendments to the Constitution, commonly described as the Bill of Rights.” (p. 19)

No, this doubtless is not a typographical or editorial mistake. Rather, it reflects the Hamiltonian approach to federal power taken by virtually all of our ruling elite today. As James Madison and his fellows explained the Constitution, it was to create a few islets of federal power in a sea of liberty. The Bill of Rights’ purpose was to ensure that the limits on theFederal Government’s power were respected, and thus to help preserve the principle of subsidiarity so integral to the Constitution’s original structure.

Thus, the Ninth Amendment said that the list of rights earlier in the Constitution was not exclusive, and the Tenth said that all powers not given to the Federal Government by the Constitution or denied by it to the states were reserved to the states or the people. Clearly, neither of these amendments serves the purpose of Stevens and the like, whose goal is to impose their will regardless of petty issues like popular consent. They have ignored the Ninth and Tenth Amendments for so long that, like a Trotskyite of old, those amendments no longer appear in the official photos. Now, the Constitution as they understand it stands for a few small islets of liberty in a sea of power.

Stevens’ ideas thus reflect not some well-considered jurisprudential perspective, but the Common Wisdom of our Betters. Rather than burdening readers with discussion of such matters, Stevens devotes more than two pages of his book – a memoir of thirty-five years on the Supreme Court – to an explanation of the placement of the conference table in the room where justices meet to discuss pending cases. (pp. 212-14) Utter inanity.

Numerous journalists have spilled lakes of ink describing absurdly low-brow discussion in American legislative bodies. John Paul Stevens’ memoir shows why we should not assume that decision-making by unelected, unaccountable, politically connected lawyers meeting in secret in Washington is a superior alternative to parliamentary politics. If you have a low opinion of American legislators, you ought to favor less government, not government by judiciary. Come to think of it, that was the Constitution’s bias as well. At least, as it was originally understood.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776-1840 ( and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush. His latest book is James Madison and the Making of America.

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

Commentators and journalists sometimes describe the current U.S. Supreme Court as “conservative.”  But that’s not true if your definition of a conservative justice is a traditional or “originalist” jurist—that is, one who applies the Constitution as the American people understood it when they adopted it.

Consider, for example, the Court’s latest First Amendment case.  The Court utterly disregarded the true meaning of that amendment, and instead applied a rule almost entirely unrelated to it.

The case was Snyder v. Phelps.  The father of a deceased U.S. Marine brought a suit under state common law against some members of the notorious Westboro Baptist Church.  As you may have learned from news sources, the Westboro Baptist Church is a tiny congregation with extreme anti-homosexual views.  The members regularly picket the funerals of soldiers, displaying signs that attack the military, the United States, and the innocent deceased.

Church members did so in this case, parading hateful signs on public property near the funeral.  They also launched unfounded personal attacks against the deceased both at the funeral and over the Internet. The serviceman’s father was so devastated emotionally that he sued them for damages, relying on claims for intentional infliction of emotional distress and for several other common law torts (civil wrongs).  The jury found that the father had been deliberately injured, and awarded him damages.

The church members demanded that the verdict be set aside.  They argued that the First Amendment Free Speech Clause protected them from liability.

Now whatever you think about Westboro Baptist or the father’s lawsuit, the fact is that the First Amendment, properly understood, was simply irrelevant to the case.  The issue should have been a slam dunk for the Court.

The text of the Free Speech Clause reads, “Congress shall make no law . . . abridging the freedom of speech.”  That is, the Amendment restricts actions of Congress.  Unlike other parts of the Bill of Rights, it applies only to the federal legislature, not to other branches of government.  It does not affect the common law, a system of case-by-case precedent built up by judges and juries over the years—a system expressly recognized as legitimate in other parts of the Constitution and Bill of Rights.

Moreover, the First Amendment says absolutely nothing about the states—and, in fact, during the 19th century the Court correctly held that the federal Bill of Rights controls only the federal government.  (States are bound by their own constitutions’ bills of rights.) True, some scholars argue that the later-adopted Fourteenth Amendment applied the First Amendment to the states, although others argue the contrary.  But the Supreme Court has never persuasively explained why it thinks the Fourteenth Amendment imposed the First on the states.  And even it did, that would bind only their legislatures, the state analogues of “Congress.”  It would not affect the common law.

There’s more: Although you would never know it to read Supreme Court First Amendment decisions, the Founders actually meant something by the phrases “freedom of speech” and “freedom of the press.” Those phrases had specific content.  What they meant is explained more fully in my book, The Original Constitution.  But what is important here is that they did not prevent civil lawsuits by innocents for harm inflicted by irresponsible people. Among those saying so during the debates over whether to ratify the Constitution was James Wilson, one of the greatest of the Founders.  (Wilson was a Framer, a leading Ratifier, and a distinguished lawyer whom George Washington later appointed to the Supreme Court.)

And as if that were not enough, during those debates the document’s supporters represented that tort and contact cases generally remained outside the federal sphere and were reserved exclusively to the states.

Yet in the teeth of text, law, and history, the Court held that the First Amendment prevented the serviceman’s father from collecting a dime.

How could this be?

During the Twentieth Century, “progressive” justices, ignoring text, law, and history, invented new First Amendment rules out of thin air.  In the 1960s and ‘70s, over the strenuous objections of moderate justices (there were no conservatives then on the bench), progressives largely re-wrote the defamation law that states had applied for two centuries.  In the course of their activity, they virtually destroyed the cause of action family members previously could use against those who maliciously “blackened the memory” of the deceased.  That may be why the family in this case resorted to claims such as intentional infliction of emotional distress.

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If we had any consistently originalist justices on the Court today, they would have voted to overrule the 1960s/70s decisions as a form of usurpation.  In other words, they would have applied the Constitution as the people adopted it.  Instead, in Snyder v. Phelps all the justices applied the 1960s/70s decisions.  There was only one dissenter, Justice Alito, but he merely disagreed as to how to apply them.

Last year when the Left was outraged because the Court struck down some restrictions on corporate participation in politics, I pointed out that the Court was just following the rules that “progressive” activists had invented throughout the Twentieth Century.

That’s what the justices did in the Snyder case, also. Far from the Court being conservative, the fact is that today there is not a single sitting Supreme Court justice who is a consistent originalist—not one.

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

Imagine you wake up one morning and walk down into your basement to find that while you slept a pipe burst, spewing hundreds of gallons of water into your cellar. To your horror, swirling water already reaches above your knees.

You immediately go to your main water shut-off, only to find it completely jammed. So, you call a plumber, who informs you that he will come as quickly as possible.

Of course “quickly” in plumber parlance means a couple of hours. When he arrives, water flows above your waist. But whatever this particular plumber may lack in speed, he makes up for in efficiency, and within moments he shuts off the flow of water and proceeds to fix the broken pipe.

A couple of hours and several hundred dollars later, the plumber leaves you with a brand new, leak free pipe. In all likelihood, you would feel a great sense of relief and perhaps even a touch of euphoria knowing that the pipe was fixed and  water was no longer free-flowing inside your home.

Just one problem – you still have several feet of water standing in your basement.

Cleanup wasn’t in this particular plumber’s job description.

The recent ruling striking down the insurance mandates in the federal health care legislation leaves me feeling a bit like the man in this little tale. I’m excited that a judge got it right – at least within the narrow scope he addressed. But when it’s all said and done, I still have a bunch of water in my basement.

First the good news.

U.S. District Judge Henry Hudson  understood the Constitution well enough to reason that the founders never intended a power to force citizens to engage in commerce.

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I….

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, the dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it’s about an individual’s right to choose to participate.

Hudson stopped the leak.

And while I see this as a positive, I still can’t bring myself to join in with those applauding the ruling as a great victory for the Constitution.

My basement remains full of water.

Although Hudson struck down the insurance mandates, reading through the entire decision reveals that he has no issue with the notion that the federal government has the power to regulate health care. He accepts the expanded view of the commerce clause formulated by the courts since the 1930′s. He takes no issue with Wickard v. Filburn, a ruling that held the federal government could fine a farmer for growing wheat for his own use, even if it never left the farm, reasoning that his consumption of his own wheat still had a substantial effect on the interstate market. And he consistently uses the terms “commerce” and “economic activity” interchangeably.

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But the founders did not understand commerce to mean all economic activity. Constitutional scholar Robert Natelson did extensive research on the word “commerce” and found that its meaning, as understood in the 18th century, centered around trade. Not manufacturing. Not agriculture and certainly not health care.

The framers granted Congress authority to regulate interstate commerce simply to prevent states from imposing tariffs on one another, thus inhibiting trade. It was never intended as a positive power allowing Congress to implement regulations on things like health care. James Madison made this clear.

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

When applying a proper understanding to the framers’ intent in granting Congress the authority to regulate interstate commerce, the Tenth Amendment Center holds that regulation of health care lies outside of the enumerated powers granted to Congress and therefore the entire health care bill is unconstitutional – not just the insurance mandates.

But the courts have stretched the commerce clause so far beyond its original intent and meaning as to render it almost all encompassing.

Hudson’s ruling places a roadblock in the progressive drive to grant Congress unlimited power to regulate virtually everything. And it certainly creates problems for President Obama and those seeking to expand the role of government in health care.

But it does nothing to restrain Congress from exercising power never intended by the founders. It does nothing to roll back more than 50 years of unconstitutional judicial interpretation. (For more on the judiciary as the final arbiter, click here.) And it does nothing to stop Congress from meddling in health care.

The Tenth Amendment Center applauds efforts to curb federal power from every front. But it is our view that the states will ultimately have to take matters into their own hands and nullify unconstitutional acts such as the federal health care legislation. We simply cannot put our faith in the federal judiciary to limit federal power.

As Thomas Jefferson said, nullification is the rightful remedy.

CLICK HERE to read about legislation in Texas that will do just that.

In the various lawsuits brought by states to challenge the validity of ObamaCare, an over-arching issue concerns the limit, if any, of Congress’ powers under the Commerce Clause.  However, there are more arguments in play.  One of them deals with Congress’ power to tax.  This issue has been discussed in Virginia vs. Sebelius by way of the federal district court’s Memorandum Opinion on Defendant’s (Sebelius’) Motion to Dismiss.

In the case, Virginia asserts that Congress is not Constitutionally-authorized to enact ObamaCare.  Sebelius filed a motion to dismiss against Virginia, on the grounds that Virginia’s complaint does not state a valid cause of action.  While the Commerce Clause issues are more widely-discussed, little discussion has been dedicated to the taxation issue which is equally important in the decision as to whether or not ObamaCare is Constitutional.

There is no doubt that Congress has the power to levy taxes.   However, as to the Commerce Clause, there are many who doubt that Congress, for example, has the power to direct that people must, pursuant to its Commerce Clause authority, put on both socks before putting a shoe on either foot.   If Congress cannot force people to do this pursuant to the Commerce Clause, then, perhaps it has another means at its disposal – this being its power to levy taxes.   So, the argument goes, based on a long line of cases from the U.S. Supreme Court.

Suppose Congress passed a law “levying a tax of $50.00 against each person, for each instance in which said person fails to don both socks before donning the first shoe.”   (Okay, I know this is a very hyperbolic example, but read on).  While such attempts to regulate would be, we hope, impermissible under the Commerce Clause, what about Congress’ power to tax?  After all, this hyperbolic measure is, indeed, a tax-raising mechanism.

This taxation argument is very much in play in the challenge to ObamaCare.   Its mandate assesses penalties on individuals who fail to obtain approved health insurance policies, and toward this end, it is being argued that it is a revenue-raising mechanism authorized pursuant to Congress’ power to levy taxes.

Throughout our history, there has been an on-going conflict in doctrines between Congress’ general power to tax and the limitations of its regulatory authority under the Constitution.   These competing doctrines are anything but novel.

In 1950, the Supreme Court issued its opinion in U.S. vs. Sanchez.   At issue was a federal tax on marijuana.   A transfer tax was imposed of $1.00 per ounce if the transfer was authorized in writing by the Secretary of the Treasury, and if the transfer was not so authorized, then, the tax was to be $100 per ounce.

The Sanchez opinion delves into the tension between Congress’ taxing power and the limitations of its regulatory authority.   Discussing this tension between the doctrines, the Court wrote:

It is obvious that [the statute], by imposing a severe burden on transfers to unregistered persons, implements the congressional purpose of restricting traffic in marihuana to accepted industrial and medicinal channels. Hence the attack here rests on the regulatory character and prohibitive burden of the section as well as the penal nature of the imposition. But despite the regulatory effect and the close resemblance to a penalty, it does not follow that the levy is invalid.

First. It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v. United States, 1937, 300 U.S. 506, 513-514, 57 S.Ct. 554, 555-556, 81 L.Ed. 772. The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v. United States, supra, or the revenue purpose of the tax may be secondary, Hampton & Co. v. United States, 1928, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624. Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate.

In essence, the proposition was thus put forth that, even though Congress might not have authority to regulate marijuana pursuant to its Commerce Clause power, it has a more general power to tax.  And if the effect of the tax incidentally has a regulatory effect over something Congress may not regulate, this regulatory effect will not impair Congress’ general authority to levy taxes.  Thus, in essence, Congress has been deemed to have an indirect power to regulate through its power to prescribe tax policies.

However, compare the Sanchez case to U.S. vs. Butler, a 1936 case where the Supreme Court struck down the 1933 Agricultural Adjustment Act, noting that it created a tax for the purpose of regulating that which Congress had no power to regulate – namely intrastate agriculture (think “pre-Wickard vs. Filburn and the switch in time that saved nine”).   In Butler, the Court wrote:

In the Child Labor Tax Case, 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817, 21 A.L.R. 1432, and in Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822, this court had before it statutes which purported to be taxing measures. But their purpose was found to be to regulate the conduct of manufacturing and trading, not in interstate commerce, but in the states-matters not within any power conferred upon Congress by the Constitution-and the levy of the tax a means to force compliance. The court held this was not a constitutional use, but an unconstitutional abuse of the power to tax. In Linder v. United States, supra, we held that the power to tax could not justify the regulation of the practice of a profession, under the pretext of raising revenue.

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These two opinions provide a general summary of the state of the law, as held by the Supreme Court, with regard to whether or not Congress may effectively regulate beyond its jurisdiction by using its taxing power.   The rule of law is:

• Congress’ power to tax cannot justify the regulation of matters beyond its regulatory authority under the pretext of raising revenue, and
• A tax statute by Congress will not necessarily fall because it “incidentally” regulates activities which Congress might not otherwise be empowered to regulate.

Confused?   Don’t be.  This is not rocket-science.  The language is clear – yes, even in both cases.   What is really happening is that the Supreme Court is making up sh….tuff as it goes.   You cannot have a Constitutional rule of law with inconsistent, flexible rules like these.

And so, I ask, why is it of any use to rely on anything the Supreme Court says?  There is no mysticism there.  No greatness.   No awesome enlightenment.  Just pure sh….tuff.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

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

EDITOR’S NOTE: Joe Wolverton, II will be joining us as a featured speaker at Nullify Now! Chattanooga. Get tickets here – http://www.nullifynow.com/chattanooga/ – or by calling 888-71-TICKETS

*******

Late last week a federal judge ruled that according to the settled case law undergirding the jurisprudence of the Commerce Clause, the individual mandate of ObamaCare is constitutional.

According to the holding in the Michigan case, one of at least fifteen similar challenges wending their way through the federal court system, ObamaCare’s requirement that all individuals, regardless of personal choice, purchase a qualifying health insurance plan does not violate the Constitution, in fact it is but another of an acceptable example of “activities that substantially affect interstate commerce.” It is that precise phrase — “substantially affect interstate commerce” — that set the threshold over which the Supreme Court for decades has determined that challenges to Congress’s Article I power to regulate interstate commerce must climb.

Judge George C. Steeh, a Clinton era appointee, sided with the Obama Administration in his ruling that if an individual does not buy health care insurance, he is making a conscious decision to go without health insurance and if enough people make the same mistake, then such a decision “viewed in the aggregate, [will] have clear and direct impacts on health care providers, taxpayers and the insured population who ultimately pay for the care provided to those who go without insurance.” That is to say, if you don’t obey the ObamaCare mandates, you are increasing the cost of obedience to the national government for the rest of the country and that sort of dissent is incompatible with the principles of statism now being judicially enforced.

The “rational basis” for the decision cited by Judge Steeh is that increased cost of health care affects everyone and since everyone, at one time or another, sips from the stream of commerce, the affect is substantial and thus Congress is empowered to manipulate the flow into and out of the stream that after years of judicial misinterpretation of the Constitution and usurpation of the legislative power, has reached Nile-like proportions.

Despite this setback, the other legal challenges to ObamaCare will proceed as scheduled. The Florida case, perhaps the most publicized as it was filed by attorneys general of 20 states, will likely have a hearing on the merits of the case as currently docketed on December 16. The complaint filed by Virginia attorney general Ken Cuccinelli will be heard as early as October 18, provided that all goes according to the timeline currently in place.

In the case of ObamaCare, as in the case of so many other cases that have expanded the reach of congressional regulating authority, the federal courts are complicit in the systematic constricting of the sphere of personal liberty. What were once the economic choices of free individuals have become the incriminating evidence of aggregated crimes. You needn’t participate materially in the restricted activity if your participation, no matter how slight, can be combined with similarly insignificant contributions to form one substantially affecting whole.

What recourse remains available to Americans determined to cling to the liberties that have made us free and kept us the envy of all nations? As this ruling and its antecedents clearly demonstrate, the courts offer no hope as they have tied their wagons to the horses of tyranny running roughshod over our Constitution. There is one place to which we may turn for refuge, however. A place protected by law and armed with the natural and unalienable sovereignty by which all its citizens were “endowed by their Creator.”

The several states are the answer. Not in their present and frankly debasing role as plaintiffs in lawsuits against the federal government, but rather in their traditional and ennobling role as bulwarks of liberty and checks on the unconstitutional imbalance created by federal overreaching. While states are unarguably free to assert their natural right of self-government in the manner they deem most fitting, history and the timeless principles of constitutional law have provided a sound and permanent option, one absolutely independent of federal oversight and unsusceptible to the conspiracy of tyranny consisting of the legislative, executive, and judicial branches of the national government.

Nullification has been written about in this magazine by this author and others since before the enactment of the ObamaCare package. We have touted its benefits and promoted its worthiness as a foil to the mandates of ObamaCare and other similarly untenable laws passed by a power-mad Congress.

In a nutshell, nullification is the principle that each state retains the right to nullify, or invalidate, any statute passed by the national government that the state regards as unconstitutional. This powerful weapon against tyranny is in the arsenal of every state. As the sovereign states formed the union, and as creators of that compact, they hold the ultimate authority as to the limits of the power of the central government to enact laws that are to bind the states and the people. That is to say, may the creation be more powerful than the creator?

As cited previously in this magazine, the Founding Fathers were very clear as to their views of this matter. James Madison, writing in the Federalist Papers, declared very plainly that the states were sovereign and that they relinquished none of that sovereignty in the act of confederating to form the Constitution. No clause or phrase of that document may be accurately interpreted to exalt the national government to a position above the states or the people.

In light of Judge Steeh’s decision in the Michigan case (the plaintiffs in which have expressed their intent to appeal the decision), perhaps it is time for that bloc of Americans who are yet determined to uphold the Constitution, to retrench the federal government to within the boundaries of constitutional enumeration, and to steadfastly defend the sovereignty of states and ultimately of themselves, to elect men and women to the state legislatures who are equally committed to exercise the privileges and obligations attendant to their status as sovereigns and nullify ObamaCare and all other similarly oppressive statutes.

In time, perhaps the pursuit of such a program by a plurality of enlightened state assemblies will “substantially affect” the balance of power in this nation and restore the delicate equilibrium of federalism that is the hallmark and the genius of the American experiment.

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.

Tenth Amendment: 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.

As has been noted in the Texas Law Review, the Tenth Amendment is a rule of construction.  This simple text conveys a great deal of information, telling us how to interpret the entirety of the Constitution.

One important question, covered extensively by Dr. Thomas E. Woods, Jr. in his book, Nullification, is the question of who gets to decide what the Constitution means?  Conventional wisdom has it that the Supreme Court is the ultimate arbiter?  Our own author, Andy Quesnelle, has also addressed this question here.  This topic has also received extensive coverage elsewhere.

Many people who claim that the States also have the ability to interpret the Constitution for themselves argue from the perspective that it would be a conflict of interest for the federal government to have exclusive authority to exercise that power when it is also a contestant.  Others focus on the fact that the Constitution was created by the states, so it is logically necessary that the states’ powers are superior to those of their creation, the federal government.  In this essay, we will support those arguments with a third plank, what the Constitution actually says.  It is ironic that most commentators I’ve read have not applied the Tenth Amendment to this question.

Using the knowledge that the Tenth Amendment is a rule of construction, we can use it to create a “four square” table of allowed and prohibited powers to graphically show how the powers and levels of government were intended to fit together.  For each level of government, State and federal, there are exactly two possibilities: either that level of government is allowed to exercise a power or it is prohibited from exercising a power.  Conveniently, there are no other possibilities, so our table can be simple. Any power that can be imagined can be populated into our four cell table.

Table 1: Allowed and Prohibited Powers

*assuming 14^th amendment incorporation of the Bill of Rights

The red cell, containing powers which are allowed to the States, but prohibited to the federal government, is the domain of the Tenth Amendment.  This particular table is necessarily incomplete, but it will suffice for today’s purpose.  It could be extended to describe, in detail, all powers which are described by the Constitution.

The essential feature, for now, is that almost everything was intended to fall in the red, “U.S. Prohibited / State Allowed” quadrant of the table, “Everything else”.  As Madison wrote, in Federalist #45,

“The powers delegated by the proposed Constitution to the federal government, are few and defined[Row 1].  Those which are to remain in the State governments are numerous and indefinite[Row 2, Column 1].  The former [Row 1] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States [Row 2, Column 1] will extend to all the 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. “

Having a table like this may make it easier for some people to reason about the Constitution.  For example, a section of the Constitution which is often raised against the power of states to resist an unconstitutional law is the “supremacy clause”.  In Article 6 of the Constitution, this clause says,

“Main stream” thinkers often refer to this clause, claiming federal supremacy, to justify their opposition.

Let us examine that claim by using our table of allowed and prohibited powers to break down the first part of the supremacy clause and fit these objects into our table of powers.

1. This Constitution – includes all four quadrants of our table.
2. The Laws of the United States which shall be made in Pursuance thereof – Can only refer to the “U.S. Allowed” row of the table, since the Constitution itself fences off the “U.S. Prohibited” row.
3. “and all Treaties made, or which shall be made, under the Authority of the United States” – is even further focused in the “U.S. Allowed”, “State Prohibited” quadrant, where treaties are placed by the Constitution.

So the preeminent object of the supremacy clause must be, “This Constitution”, since it encompasses the more limited scopes of the following objects.  If an ostensible Treaty or a Law of the United States falls in the 2^nd row of the table, then “This Constitution” takes precedence and the treaty or law is invalid.  To some, this might seem obvious, but the persistent and wide spread misunderstanding on this point makes it clear that we need to examine it in great detail in order to be able to persuade others.

If a purported U.S. Law is a usurpation, infringing on a fundamental right or legislating on a topic which has not been delegated to the United States, then it falls in the second row of our table.  Therefore, the unconstitutional nature of the law overrides, and the supremacy clause says that the judges in every State must uphold the Constitution.

In short, when applying the Supremacy clause to legislation, it only applies to the balance of power between the federal government and a state if the power being exercised falls in the “U.S. Permitted & State Permitted” cell of the table.  In that case, and only in that case, the constitution says the federal law is supreme.

Now, we get to the main question of this essay, “Who decides whether a law contradicts the Constitution”?  The supremacy clause, the Tenth Amendment and our table of allowed and prohibited powers help us to answer this question.

First, with regards to the supremacy clause, note that the terminal portion of the supremacy clause does not limit its binding to federal judges.  It says, “the Judges in every State”.  Referring back to our table of powers, we see that the judicial power is a shared power.  The State and federal governments are both allowed to exercise judicial power under the Constitution.  The supremacy clause, therefore, tells us that state and federal judges are both bound by “this Constitution”, “the Laws of the United States which shall be made in pursuance thereof” and “all Treaties…”.

It should now be obvious that the supremacy clause allows, and in fact requires, both State and federal judges to evaluate whether laws are Constitutional.

Further, let us note that nowhere in the Constitution is the power to interpret the Constitution prohibited to the states.  Since the power to interpret the Constitution is not prohibited to the states, if we apply the Tenth Amendment, this power can only be in the “State Allowed” column of our table.  Either it is a shared power with the federal government or it is the sole province of the States.  An argument can be made that this power is included in the judicial powers, and thus shared by both levels of government, but it is clear that there is no Constitutional claim that the states may not exercise this power.

The “main stream” understanding in our times continues to be that only the federal government, in the form of the Supreme Court, is entitled to declare a law to be unconstitutional.  Many articles have been written describing the conflict of interest inherent in that viewpoint.  Others have been written detailing historical objections.  This article used logical arguments based on the Constitution itself to prove the fallacy of that idea.

There is nothing in the Constitution, including the supremacy clause, which prohibits States from interpreting the Constitution for themselves.  In fact, the supremacy clause requires the federal and state judiciary to do just that.

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

On August 23, 1958, 46 Chief Justices from the Supreme Courts of the several states gathered together in Pasadena, California. The event drawing their presence was the Conference of Chief Justices, a regular forum for the highest judges in each state to meet and discuss important issues.

Their 1958 meeting, however, proved to be quite different from any of the other conferences. Ten chief justices had been previously assigned, as part of a committee, to produce a report and resolution to the entire conference for a vote. The subject: federalism.

36 chief justices ultimately voted in support of the resolution and report, which declared that the U.S. Supreme Court “has tended to adopt the role of policy maker without proper judicial restraint”. Eight voted against it, and two abstained.

The report spans several pages, as presented in the October 3, 1958 edition of the U.S. News and World Report (PDF), and until now, has nowhere been made available on the internet. Scanning the statement provides an interesting insight into the tenuous balance of federalism from half a century ago, and supports concern that things have not improved, now decades later.

It should be noted, first, that the chief justices, themselves products of the conventional legal system and general adherents to its philosophy, were not advocating federalism to the extent of more radical action, such as nullification. As one example, they state in their report:

Second, when we turn to the specific field of the effect of judicial decisions on federal-State relationships, we come at once to the question as to where power should lie to give the ultimate interpretation to the Constitution and to the laws made in pursuance thereof under the authority of the United States. By necessity and by almost universal common consent, these ultimate powers are regarded as being vested in the Supreme Court of the United States. Any other allocation of such power would seem to lead to chaos. (emphasis added)

Clearly, interposition and nullification were not even under consideration for these quasi-federalist chief justices. Nevertheless, they were quite concerned with an overreaching federal government whose accumulation of undelegated power seemingly knew no bounds. Here is the text of the resolution which received an overwhelmingly affirmative vote:

Resolved:

1. That this Conference approves the Report of the Committee on Federal-State Relationships as Affected by Judicial Decisions submitted at this meeting.
2. That, in the field of federal-State relationships, the division of powers between those granted to the National Government and those reserved to the State Governments should be tested solely by the provisions of the Constitution of the United States and the Amendments thereto.
3. That this Conference believes that our system of federalism, under which control of matters primarily of national concern is committed to our National Government and control of matters primarily of local concern is reserved to the several States, is sound and should be more diligently preserved.
4. That this Conference, while recognizing that the application of constitutional rules to changed conditions must be sufficiently flexible as to make such rules adaptable to altered conditions, believes that a fundamental purpose of having a written Constitution is to promote the certainty and stability of the provisions of law set forth in such a Constitution.
5. That this Conference hereby respectfully urges that the Supreme Court of the United States, in exercising the great powers confided to it for the determination of questions as to the allocation and extent of national and State powers, respectively, and as to the validity under the Federal Constitution of the exercise of powers reserved to the States, exercise one of the greatest of all judicial powers—the power of judicial self-restraint—by recognizing and giving effect to the difference between that which, on the one hand, the Constitution may prescribe or permit, and that which, on the other, a majority of the Supreme Court, as from time to time constituted, may deem desirable or undesirable, to the end that our system of federalism may continue to function with and through the preservation of local self-government.
6. That this Conference firmly believes that the subject with which the Committee on Federal-State Relationships as Affected by judicial Decisions has been concerned is of continuing importance, and that there should be committee appointed to deal with the subject in the ensuing year.

The proceeding report details several specific cases in which the balance of federalism had been pushed too far in favor of the federal government. Towards the end, the chief justices provide some compelling arguments as the foundation of their concerns:

It is strange, indeed, to reflect that, under a Constitution which provides for a system of checks and balances and of distribution of power between national and State governments, one branch of one government—the Supreme Court—should attain the immense and, in many respects, dominant power which it now wields. We believe that the great principle of distribution of powers among the various branches of government and between levels of government has vitality today and is the crucial base of our democracy.

We further believe that, in construing and applying the Constitution and laws made in pursuance thereof, this principle of the division of power based upon whether a matter is primarily of national or of local concern should not be lost sight of or ignored, especially in fields which bear upon the meaning of a constitutional or statutory provision, or the validity of State action presented for review. For, with due allowance for the changed conditions under which it may or must operate, the principle is as worthy of our consideration today as it was of the consideration of the great men who met in 1787 to establish our nation as a nation.

Further:

It has long been an American boast that we have a government of laws and not of men. We believe that any study of recent decisions of the Supreme Court will raise at least considerable doubt as to the validity of that boast. We find first that, in constitutional cases, unanimous decisions are comparative rarities and that multiple opinions, concurring or dissenting, are common occurrences.

We find next that divisions in result on a 5-to-4 basis are quite frequent. We find further that, on some occasions, a majority of the Court cannot be mustered in support of any one
opinion and that the result of a given case may come from the divergent views of justices who happen to unite on one outcome or the other of the case before the Court.

We further find that the Court does not accord finality to its own determinations of constitutional questions, or for that matter of others. We concede that a slavish adherence to stare decisis could at times have unfortunate consequences; but it seems strange that under a constitutional doctrine which requires all others to recognize the Supreme Court’s rulings on constitutional questions as binding adjudications of the meaning and application of the Constitution, the Court itself has so frequently overturned its own decisions thereon, after the lapse of periods varying from 1 year to 75, or even 95 years.

In this resolution and report we find chief justices from a majority of the states voicing concern about a dominating federal government—one to which they defer in all questions of supremacy and authority, despite brief references to the tenth amendment and domestic powers not delegated to the federal government. We find the justices “urging” the Supreme Court to exercise “judicial self-restraint” through “the power of persuasion”.

Outside of the formal resolution, one chief justice, M. T. Phelps of Arizona, vented his frustration thusly:

It is the design and purpose of the U.S. Supreme Court to usurp the policy-making powers of the nation…. By its own unconstitutional pronouncements, it would create an all-powerful, centralized government in Washington and subsequent destruction of every vestige of States Rights expressly and clearly reserved to the States under the Tenth Amendment of the Constitution.

I honestly view the Supreme Court with its present membership and predilection, a greater danger to our democratic form of government and the American way of life than all forces aligned against us outside our boundaries. (as quoted in Ernest L. Wilkinson, “The Changing Nature of American Government from a Constitutional Republic to a Welfare State”, Brigham Young University Devotional, April 21, 1966)

Half a century later, though, we enjoy more of the same—more theft of state sovereignty, more arrogation of powers nowhere delegated to the federal government, and more indifference in regards to the question of federalism and supposed “self-restraint”.

In short, asking “pretty please” to the thieves has proven almost entirely ineffective.

Nevertheless, the information here provided gives an interesting insight into the issue of federalism five decades ago, and shows how much of a failure the justices’ method of using “persuasion” has proven to be.

As with many other questions of political authority and sovereignty, rights must be asserted and claimed, not sought after through begging and allegedly persuasive pleas.

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

There was a time, in the early days of our Constitutional Republic, that the forces of monarchy and tyranny ran deeper than perhaps even today. In 1798, our would-be King John Adams and his Federalist henchmen in Congress trumped up war fever, a tyrant’s best friend, to pass a Sedition Law that made criticism of the President and Congress, interestingly the very ones who enacted this law, a jailable offense.

Vice President Thomas Jefferson, an opponent of the Federalists, who was inconveniently omitted from the protection of this law, jumped into action, but secretly for fear of the Federalists and prison where many of his colleagues in government and the press had been sent under this nefarious law.

Jefferson and James Madison drafted Resolutions that were passed by the Kentucky and Virginia legislatures respectively, whose principles can be summarized by this statement from Jefferson’s pen appearing in the Kentucky version:

“The principle and construction contended for that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism – since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction, and that a NULLIFICATION by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.”

Many would assert the Constitution’s Supremacy Clause against the above, which provides that the Constitution and federal laws made pursuant to it are the supreme law of the land. But that clause instead unequivocally proves the validity of the Virginia and Kentucky Resolutions: if a federal law is not made pursuant to the Constitution, but is rather an invalid unconstitutional law, then it is not the supreme law of the land; it is not a law at all, and is therefore null and void.

What happened in the last 212 years that has kept these Principles of ’98 out of our consciousness? One of the key answers to this question contains the means by which to make the nullification movement far more effective going forward.

Over the past decades, every attorney and judge learns “Constitutional law” in our Law Schools, the bastions of nationalists and judicial supremacists. When we show up for our first day of class, we are not given the Constitution, even though it consists of about 7,500 words and we are otherwise expected to read tens of thousands of words nightly. Instead, we receive a very thick textbook, loaded with Opinions issued by the United States Supreme Court. We are told by our Professor that the Constitution is a living document, one that the Supreme Court breathes life into by interpreting, constructing and discerning the true meaning through consulting whatever they deem appropriate in their discretion, including changing societal trends, studies by Sociologists, international law and the like.

And to prove that this is the correct, valid, procedure for “making” Constitutional law, the very first case assigned is the one termed the most important in our history, the landmark 1803 case of Marbury v. Madison. Many Americans have heard of this celebrated case. Why?
Because in that case, Chief Justice John Marshall stated that the Supreme Court was duty bound, under the oath each Justice takes to support the Constitution, to treat unconstitutional laws of Congress as void, and of no force or effect.

Of course, Marshall’s ruling is an exact repeat of the very same principle found in those principles of ’98. Every judge, every Congressperson, every President, Governor and state legislator, in both levels of government, take that oath to support the Constitution.

The Marbury v. Madison ruling confirmed the same principle as the Virginia and Kentucky Resolutions: any federal or state government official is duty-bound under his or her oath, required by Article VI of the Constitution, to uphold the Constitution, and therefore must treat any unconstitutional law, action, or ruling of another branch of either level of government as void, and of no force or effect.

In other words, the very bedrock of the Supreme Court’s assertion of the power to nullify federal or state laws is identical to the one found in the Virginia and Kentucky Resolutions.

So how did the legal and judicial profession, and correspondingly most Americans, become conditioned to believe that his duty of nullification was exclusively reserved to the Supreme Court alone? Because the same essential principle, contained in the Virginia and Kentucky Resolutions, was lambasted by Federalists, desiring absolute national supremacy, as dangerous and wrong in the hands of the state legislatures as representatives of the sovereign people. But the same assertion was magically labeled “judicial review” when announced by the Chief Justice Marshall just five years later, implying a special supreme exclusive power carved out solely for those un-elected, life-tenured, completely unaccountable oracles on the Supreme Court.

Soon after Marbury v. Madison, the concept of judicial review was applied to the review of state laws, with the result that over the past two hundred years a small handful of federal laws have been invalidated by the Supreme Court while scores of state laws and rulings have been overturned.

Of course, when lawyers and judges complete law school without even reading the Constitution, instead learning from the vaunted faculty that the Constitution makes the Supreme Court the exclusive arbiter of that document, you are conditioned to believe it. And if lawyers and judges are so conditioned, then so will everyone, taking their cue from the respected legal and judicial profession allegedly charged with guarding our sacred Constitution. Of course, beyond the conditioning, there is a tremendous incentive for those in the legal field, particularly aspiring judges and Constitutional lawyers, to accept this alleged principle because it transfers power from the Constitution and sovereign people of the United States to them!

In fact, however, there is nothing in Marbury v. Madison to warrant such a supremacy, merely a statement that the Supreme Court, like any other branch of federal or state government, has the authority and duty of Constitutional review in determining whether another branch of its level, or the other level, of government has acted beyond the scope of its powers and infringed on the powers of the other.

In fact, it was not until 1958 that the Supreme Court finally found the audacity to boldly assert that it was, in fact, the sole, exclusive authority on the Constitution. In Cooper v. Aaron, the Court stated that Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and claimed that this alleged principle of judicial supremacy “has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” And like sheep, we all believed this fraud – one that had been implicitly building for decades. But now, with this so-called “principle” clearly and authoritatively stated by the Court, a wave of even more overreaching violations of our sovereign right of republican self-government came down from on high.

Judicial supremacy has also created the toxic notion of judicial infallibility. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court refused to overturn its precedent regarding the right to abortion in Roe v. Wade on the basis that doing so would damage the rule of law and correspondingly undermine the Court’s legitimacy. The Court also cited the fact that people had come to rely on Roe. Thus, in the Court’s view, the correctness of Roe was not as important as the source, the Court itself, and the people’s reliance on the Court as if it were the Constitution itself. Only a supreme authority such as a monarch or British parliament, rejected by the American Revolution and Declaration of Independence, would assert that its credibility and unquestioned supremacy is paramount to the correctness of its edicts.

Meanwhile, and of equal importance, the Supreme Court, in its alleged role of neutral supreme arbiter of the Constitution, while striking down countless state laws, has rubber stamped the other two branches of its own federal government, the President and Congress, giving them carte blanche to do whatever they please, as we have so clearly witnessed increasingly over our own lifetimes.

So much activity to restore liberty and restrain the federal government has been misallocated toward obtaining the right Justices on the Supreme Court, and petitioning the Court to make the right decisions. We are playing the wrong game with the wrong chips, based on the erroneous concept that the Supreme Court, a branch of the federal government, is the exclusive arbiter of the Constitution and the scope of the powers it delegates to the federal government on the one hand, and reserves to the states and their people on the other.

We must topple this fiction, so deeply ingrained in the legal profession, our history books, and the collective mind of We the People, that Marbury v. Madison vested supremacy over the Constitution in the Supreme Court, when in reality it merely repeated the same principle declared five years earlier in the Virginia and Kentucky Resolutions of 1798: an unconstitutional law, action or ruling of the federal government is null and void, and the duty of every state governor, legislature, and court, under the oath they have taken to support the Constitution, is to so nullify it.

Marty Babitz is on the chapter leadership team for the New Jersey Tenth Amendment Center. He is the author of The Illusion of Freedom: How to Restore the True Constitution and Reclaim Liberty Now.

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

It has been said that eternal vigilance is the price of liberty. This is especially true when it comes to gun liberty, since there are many organizations and government officials in “the land of the free” that would like nothing better than to disarm or severely limit the gun rights of law-abiding American citizens. The recent pro-gun decision in the Supreme Court case of McDonald v. City of Chicago doesn’t change our need for due diligence when it comes to gun liberty.

The McDonald Case

In a 5-4 decision written by Justice Alito, the Supreme Court reversed and remanded a ruling by the Court of Appeals for the Seventh Circuit that upheld a District Court ruling against a challenge to the city of Chicago’s draconian gun laws that have effectively banned handgun possession by almost all residents of the city since 1982. Naturally, Chicago’s murder rate has increased since the gun ban was enacted, and the city now has one of the highest murder rates in the country. Yet, Chicago mayor Richard Daley, a strong gun-control proponent, said the city “will publicly propose a new ordinance very soon” that will attempt to restrict gun ownership in a manner that doesn’t violate the Supreme Court decision. The District Court is expected to take up the case again later this summer.

Alito was joined in full by Justices Roberts, Scalia, Kennedy, and for the most part by Justice Thomas. At fifty-six pages, Thomas’s concurring opinion is longer than the majority opinion. Scalia also had a concurring opinion, but mainly to respond to the dissent of Justice Stevens. Another dissenting opinion was written by Justice Breyer, joined by Justices Ginsburg and Sotomayor.

The plaintiffs in the case argued that the Chicago gun laws violated the “privileges or immunities” clause of the Fourteenth Amendment and that the Amendment’s “due process” clause incorporates the Second Amendment’s “right of the people to keep and bear arms.” In reversing the decision of the Court of Appeals, the Supreme Court rejected the former argument and accepted the latter one, thus ruling that the Second Amendment, which protects an individual right to keep and bear arms, as the Court ruled in Heller (2008), applies to the states.

The Incorporation Doctrine

The issue of incorporation is a complicated and sometimes controversial one. I have written at length on this subject in “The Kelo Decision and the Fourteenth Amendment.”

The Second Amendment was adopted because, as Justice Alito quoted from the Heller decision: “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” Before 1820, thirteen states had also adopted state constitutional provisions that protected an individual right to keep and bear arms. Several States did have laws that restricted firearm ownership to those who were free men and did not pose a “danger of public injury”

The Bill of Rights was originally designed to apply only to the federal government. Writing in Barron v. City of Baltimore(1833), Chief Justice Marshall pointed out that the first eight amendments were added to the Constitution because of concerns about the extent of federal power. Marshall held that if “the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention.” Often forgotten is that the Bill of Rights had a preface:

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: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

In three nineteenth-century cases before the Court—U.S. v. Cruikshank (1876), Presser v. Illinois (1886), and Miller v. Texas(1894)—it was affirmed that the Second Amendment only applied to the federal government. And it should be pointed out that the right to keep and bear arms was widely protected by state constitutions at the time of the ratification of the Fourteenth Amendment.

Beginning with the case of Gitlow v. New York (1925), where the Supreme Court ruled that a New York law violated the free speech clause of the First Amendment because that part of the First Amendment was incorporated into the Fourteenth, the Supreme Court began to selectively incorporate certain elements of the Bill of Rights into the Fourteenth Amendment via the “due process” clause. With the incorporation of the Second Amendment in the McDonald case, this only leaves four things that have not been incorporated: the Third Amendment’s protection against quartering of soldiers, the Fifth Amendment’s grand jury requirement, the Seventh Amendment’s right to a jury trial in civil cases, and the Eighth Amendment’s prohibition of excessive fines.

The inclusion above of the Fifth and Eighth Amendments, which each contain more than one subject, shows that the Supreme Court’s incorporation doctrine can encompass just part of an Amendment. And not only that, the Court applies two things from the Sixth Amendment differently against the states than against the federal government. First, the appointment of counsel is required in all federal criminal cases in which the defendant is unable to afford an attorney, but is only required in state criminal cases where lack of counsel results in a conviction lacking in “fundamental fairness.” And second, a unanimous jury verdict is required in federal criminal trials, but not in state criminal trials. Although the whimsical nature in which selective incorporation of amendments and parts of amendments was carried out during the twentieth century has led some—including this writer—to question the whole concept of incorporation, it is a firmly established doctrine that, like judicial review, has become a permanent fixture of the Supreme Court.

That the respondents in the McDonald case, as well as the four dissenting justices, oppose the incorporation of the Second Amendment shows, as Jacob Hornberger recently pointed out, the hypocrisy of liberals. No liberal—on or off the Supreme Court—ever had a problem with the incorporation doctrine when it came to First Amendment rights or the rights of the accused. Liberals are all of a sudden arguing against incorporation because they are anti-gun.

Although agreeing with the Court that the Second Amendment applies to the states, Justice Thomas makes a good argument that the right to “keep and bear arms” applies to the states through the “privileges or immunities” clause.

The Second Amendment

The Second Amendment to the Constitution has engendered more controversy than any other Amendment except perhaps the Fourteenth. It’s twenty-seven words read: “A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.”

The dissenting opinion by Justice Breyer in McDonald seeks to revisit the Supreme Court’s ruling in Heller that the Second Amendment protects an individual right to keep and bear arms. Breyer has evidently never gotten over it. He still tries to maintain that the Second Amendment relates primarily to the states’ ability to maintain a militia. First of all, he is just plain wrong. Among other things, “the people” are also mentioned in the First, Fourth, Ninth, and Tenth Amendments. Are we to believe that “the people” means something different in the Second Amendment? The militia referred to citizens who owned guns. There were no police forces, National Guards, or standing armies. Secondly, the Second Amendment is about a right that is already assumed to exist. The amendment recognizes a right; it does not grant a right. The Bill of Rights was never intended to give Americans rights; it was designed to protect their rights from infringement by the new and powerful central government under the Constitution. And third, even if the Second Amendment was not in the Constitution or did refer only to the states’ ability to maintain a militia, it would not affect Americans’ right to keep and bear arms one iota. All men have a natural and moral right to arm themselves for hunting, sport, or self-defense against aggression by other men or governments.

Justice Breyer even has the audacity to invoke the principal of federalism as a reason why the Fourteenth Amendment shouldn’t incorporate the Second. Incorporation would “amount to a significant incursion on a traditional and important area of state concern,” says Breyer. The federal relationship that exists between the states and the central government is an important one. Federalism and decentralization are bulwarks of liberty against the tyranny of the central government. But since when was Justice Breyer, or the other justices who joined him in dissent, or the respondents in McDonald, or Mayor Daley, or any liberal in favor of gun control concerned about limiting the power of the federal government? These people are just flat out against gun liberty.

The libertarian and decentralist perspective on the Second Amendment is a simple one: The Federal government may not infringe upon anyone’s right to keep and bear arms, period. There should be no federal restrictions, federal registration, federal background checks, federal banning of certain weapons, or other federal infringements of the right of the people to keep and bear arms. This means that it is on the state level—per the Tenth Amendment—that we should be arguing the pros and cons of restricting the gun ownership of certain convicted felons, non-citizens, the mentally ill, etc., lawful gun types, usage, ammunition, etc., and any other type of regulations. To what extent the federal government should intervene in state gun laws is entirely another matter.

McDonald and the Prospects for Gun Liberty

Because the Tenth Amendment is a dead letter—and the Constitution too it seems most of the time—the McDonald decision, at least in the short run, is good for gun liberty. However, like the Heller case, I have mixed feelings about the Supreme Court’s decision in McDonald.

Writing for the majority, Justice Alito makes it perfectly clear that although Chicago’s gun ban may not be constitutional, most of the existing gun regulations that do infringe upon the right of the people to keep and bear arms will continue:

It is important to keep in mind that Heller, while striking down a law that prohibits the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperial every law regulating firearms.

Noted in the decision was a brief (Amici Curiae 23) filed by thirty-eight states on behalf of the petitioners that “state and local experimentation with reasonable firearms regulations will continue under the Second Amendment.”

It is because of the Supreme Court permitting infringements on the right to keep and bear arms that some gun-control advocates reacted favorably to the McDonald decision. Mayor Bloomberg of New York City optimistically remarked that the Court’s decision shows “we can work to keep guns out of the hands of criminals and terrorists while at the same time respecting the constitutional rights of law-abiding citizens.” Jackie Hilly, the Executive Director of New Yorkers Against Gun Violence, is pleased with the decision. Says Hilly:

All the other amendments have reasonable restrictions on them. So I actually really like the Heller decision and the McDonald decision because they put the Second Amendment in the context of all the other amendments… people from the gun lobby like to promote the idea that you have an absolute or god-given right to possess a gun. That’s clearly not true; your right can be restricted.

Mayor Daley is already expected to demand registration of all handguns, mandatory training for gun owners and a limit of one handgun per person. There is nothing in Heller or McDonald that necessarily prohibits broad anti-gun measures requiring training courses, gun and/or ammunition registration, liability insurance, fingerprinting, guns to be kept unloaded, trigger locks, gun registries, waiting periods, background checks, the banning of “assault” weapons, high-capacity magazines, automatic weapons, sawed-off shotguns, and limitations on the type and amount of ammunition.

But an even greater danger is the potential for the future federalization of all gun laws due to the further erosion of federalism because of the incorporation doctrine. Congress and the federal agencies it has created have already federalized a host of ordinary street crimes already covered by state criminal codes.

Conclusion

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As much as the McDonald decision is a victory for residents who want to defend themselves in Chicago and other municipalities with draconian gun laws, this decision also makes it clear that our rights are not natural and absolute. They are subject to the whims of the current members of the Supreme Court.

In view of the McDonald and Heller decisions and the myriad of federal, state, and local gun restrictions and regulations, we might rephrase the Second Amendment this way:

The right of the people to keep and bear arms shall not be infringed by the federal government, except by federal laws that infringe upon that right which are approved by the Supreme Court. The right of the people to keep and bear arms shall not be infringed by the state governments, except by state laws that infringe upon that right which are approved by the Supreme Court.

On page 23 of the McDonald decision, Justice Alito mentions how after the Civil War “the laws of some States formally prohibited Blacks from possessing firearms.” He gives an example of a law in Mississippi that forbade a Negro not in the military and not licensed by his county to “keep or carry fire-arms of any kind.” Does not the same thing exist today for all races in some parts of the United States?

Thomas Jefferson once wrote that “the natural progress of things is for liberty to yield and government to gain ground.” This is especially the case with gun liberty. The price of absolute gun liberty is indeed eternal vigilance.

Laurence M. Vance [send him mail] writes from Pensacola, FL. He regularly contributes articles and book reviews to both secular and religious periodicals.

Copyright © 2010 Campaign for Liberty

On Independence Day weekend, Georgetown University law professor Randy Barnett and I appeared on Freedom Watch, Judge Napolitano’s new program on the FOX Business Network. In the first segment, the Judge and I discussed my new book, Nullification: How to Resist Federal Tyranny in the 21st Century, which argues that the states have the right to prevent the enforcement of unconstitutional federal laws within their borders. In the second, we were joined by Monica Crowley and Professor Randy Barnett, the latter of whom was skeptical of nullification as a valid constitutional doctrine or a plausible strategy against the growth of federal power. He has since followed up on our appearance with a blog post at the Volokh Conspiracy.

Professor Barnett’s argument is twofold. First, he believes insufficient evidence exists pointing to a power of state nullification within the original understanding of the Constitution. I think such evidence does exist, and I summarize the argument toward the end of the video clip below, though of course a lengthier answer appears in my book. Secondly, he holds that the federal courts, and the Supreme Court in particular, will not uphold a state power of nullification. I don’t think anyone would disagree with that. His conclusion, though, is that nullification is therefore a waste of time – if the courts don’t acknowledge it, what kind of progress can it make?

Legal scholar J.H. Huebert was particularly taken aback by Barnett’s dismissal of nullification as a waste of time:

I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights – even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.

Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government. Recently, for example, it has been used in California to protect medical marijuana users there – after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.

Who’s wasting their time?

As Huebert suggests, Barnett’s own career suggests the utility of nullification. In the wake of Barnett’s heroic but failed attempt before the Supreme Court to protect medical marijuana patients from the enforcement of federal drug laws, such patients continued to go about their business. As many as one thousand medical marijuana dispensaries still operate in Los Angeles County alone. This is not the same thing as the state of California issuing solemn resolutions in defiance of the federal government, but it’s not nothing, either. I say this not to be flippant, since I do very much respect Professor Barnett and his work, but how does he feel about this defiance of the Supreme Court? Would he order all these poor folks to desist? Would he tell them the Justice Department has every right to punish them now? Or does he not believe they are justified in their civil disobedience?

In fact, why did the Justice Department eventually back down? Because they began to doubt their interpretation of the commerce clause? They backed down because resistance in the state was too great.

Barnett is right about the Supreme Court: the justices aren’t going to like nullification. But if we conceive of nullification in the twenty-first century as a species of civil disobedience sanctioned by a state government, what does it matter? Nullification involves the refusal to sanction unconstitutional edicts from whatever quarter they may come.

I once asked a left-wing critic whether he would have supported state nullification of the federal roundup of the Japanese in America during World War II. Not necessary, he said: “The equal protection clause as applied in Yick Wo in 1866 would have worked just as well.” Now that’s classic. Standing there holding a Court precedent in your hand as the goons whiz by works just as well as a state government telling them to stick their roundup where the sun don’t shine?

Barnett cites Madison’s Report of 1800, but to my mind the most significant passage in that document is where Madison insists that some recourse must exist for the states in cases in which even the hallowed judicial branch betrays the Constitution. Barnett may in fact place too much emphasis on the single figure of Madison; as Kevin Gutzman shows in chapter 3 of Virginia’s American Revolution, the Virginia General Assembly debates over the Virginia Resolutions of 1798 make clear that everyone agreed an unconstitutional law was null and void. Nullification merely disallowed the enforcement of a nonexistent constitutionality. What could be controversial about that?

Now I do support the general thrust (though not all the particulars) of Barnett’s proposed Bill of Federalism, a series of constitutional amendments for the restoration of federalism. (Barnett has since amended point 6 to read “two thirds” instead of “three quarters.”) It would, however, be extremely difficult to introduce and ratify, and we would still be left with the need for a last-resort defense mechanism for the states in case these well-meaning amendments themselves should be disregarded or fail to fulfill their intended purpose.

Anything we might propose, Barnett’s amendments included, faces an uphill battle against very difficult odds, so I question the helpfulness of singling out state nullification for criticism as if we were just drowning in plausible alternatives. What do nullification skeptics recommend instead, particularly if we rule out the failed strategies of the past that we all know perfectly well will yield us nothing but more failure in the future? I assume Professor Barnett agrees with me that the definition of insanity is expecting another GOP plastic man – Mitt Romney, I’m looking in your direction – to put things right.

To be sure, it could turn out that, short of the financial day of reckoning that is surely coming, slowing down the federal government is simply impossible. But if we are to make any inroads against it, they are probably not going to come in the form of tidy legal briefs whose persuasive force overwhelms the judicial branch. They are unlikely to come through legislation, as generations of failure to roll back the federal government should have made clear enough.

Ultimately, a coordinated response by as many states as possible, in which those states declare that they will not comply with, and will work to prevent the enforcement of, a federal edict seems like the only realistic way the federal government might be forced to retreat. We would be way beyond court decisions at that point. Court decisions would be like Politburo speeches in 1991. The states would be carving out a new modus vivendi with the federal government, inspired by a long-dormant Jeffersonian tradition whose wisdom cannot seriously be doubted in 2010.

Times of economic turmoil can put options on the table that might have been dismissed under other circumstances. The best we can hope for in the coming years is a lengthy period of economic stagnation, followed by serious social upheaval when the entitlement programs inevitably collapse. Is it so unthinkable that a few governors, anxious to preserve some kind of livable economic conditions for their people, could begin defying unfunded mandates from the federal government in the name of the prosperity of their state? A financially strapped federal government will hardly be able to stop them. What supporter of the market economy and the free society would oppose a development like this? No one, right? So why not prepare the ground for it? That’s why I decided the time was right for a book that would set forth the most persuasive historical, constitutional, and moral arguments for a once-despised remedy that may turn out to be the last functioning defense mechanism of a decaying republic.

Thomas E. Woods, Jr. [send him mail] holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University. He is the author of ten books, including the just-released Nullification: How to Resist Federal Tyranny in the 21st Century, and 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. Visit his website and blog, follow him on Twitter and Facebook, and subscribe to his YouTube Channel.

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