The battle raging between the federal government and the State of Arizona over its so-called anti immigration law has raised several constitutional issues. It has been asserted by those opposed to the law that the States are precluded from protecting their borders and preventing the influx of illegal aliens because these powers were granted exclusively to the federal government. This assertion is erroneous because the individual States, as sovereign political entities, have the absolute right to protect their borders from illegal aliens irrespective of the Constitution or any power granted to the federal government.

We are constantly told that people illegally entering the country are undocumented immigrants and the federal government has jurisdiction over all matters concerning immigration. This is not the case. In fact, the word immigration does not appear in the Constitution. The only general power granted to the federal government concerning aliens, in times of peace, is the power “to establish a uniform rule of naturalization.” This provision was inserted because there was, in the words of James Madison, “a dissimilarity in the rules of naturalization” among the States. By vesting this power in the federal government, as opposed to the individual States, the Founders ensured that the qualifications for becoming a citizen would be uniform throughout the several States. If the rule were not uniform, one State could impose a different standard than another State or discriminate against immigrants from certain nations. No other power is granted to the federal government concerning this subject.

The federal government also claims the duty of securing the borders of these United States rests solely with the federal government. The Constitution states: “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion…”  [See Article IV, Section 4] If aliens entering into a State from a foreign country constitute an “invasion,” then the federal government is constitutionally mandated by this provision to intervene and protect the State.

The Constitution grants the federal government the power to fulfill this duty in one of two ways. It can either use the military, or Congress can call forth the militias of the several States to repel the invasion. [See Article 1, Section 8, Clause 15] Once Congress calls forth the militia, the President, as commander in chief, has the power to direct the movement of these forces. Thus, the President could constitutionally send the State militias to any State to repel the “invasion” by illegal aliens. However, if illegal aliens pouring into the States do not constitute an “invasion,” then the federal government lacks the constitutional authority to intervene and prevent the States from protecting their borders.

Note: The National Guard is a State military force and is referred to as the organized militia. The so-called common folk who meet certain requirements are referred to as the unorganized militia. There is no federal militia. In addition, there is no specific provision in the Constitution for the so-called Border Patrol to function within the several States. Protecting the borders of the States from illegal aliens has nothing to do with the federal government’s power “to establish a uniform rule of naturalization.” The regular military and the militia are the only entities designated in the Constitution to protect the States from invasion.

Even though the word immigration does not appear in the Constitution, the federal government claims that anything relating to “immigration” and the border is vested exclusively in that government. In other words, the States are prohibited by the Constitution from exercising any power that touches on these issues.

During the debates in the Virginia State Convention of 1788, John Marshall made the following statement concerning the constitutional prohibitions on State power:

“The truth is, that when power is given to the general legislature, if it was in the state legislatures before, both shall exercise it, unless there be an incompatibility in the exercise by one to that of the other, or negative words precluding the state governments from it… All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article.” 

Marshall stated that if the States possessed a power prior to the adoption of the Constitution and a like power was granted to the federal government, the States retained a concurrent power unless there was a conflict in the exercise of power or there was a clause that specifically prohibited the States from exercising the power.

Alexander Hamilton made this observation several months prior to Marshall. In Federalist Essay No. 32 he wrote: 

“The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequences of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.”  [Bold added] 

In Essay No. 82, Hamilton restated this principle and noted that there were only three instances where the “exclusively delegated” rule would apply:

“The principles established in a former paper teach us that the States will retain all preëxisting authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.”  [Bold not added] 

As stated by Marshall and Hamilton, the States retained every preexisting power that was not exclusively delegated to the federal government. The exclusively delegated rule, as defined by Hamilton, has no application to the States concerning illegal aliens and their borders.

Marshall and Hamilton also noted that all of the constitutional prohibitions on State power are contained in Article I, Section 10. A review of this section shows that it does not contain a single clause that places any restraint on State power concerning illegal aliens or protecting their borders.

In Article I, Section 10, Clause 3 the States have the power to engage war when “actually invaded, or in such imminent Danger as will not admit delay.” How could the States have the power to engage in war, independent of the federal government, but not have the civil authority to protect their borders?

Even if the federal government had been granted authority over foreigners in the several States, the States would not be precluded from exercising this power as well.

Since the Constitution prevents the States from maintaining a standing army, without the consent of Congress, in times of peace, the State force contemplated in Article 1, Section 10 is the State militia. Thus, the States have the constitutional authority to use the militia to protect their borders.

It should be noted that the Constitution only grants the federal government limited powers concerning use of the militias. Congress has no constitutional authority over these militias unless and until they are called into the actual service of the United States. When not in federal service, the States have exclusive authority over their militias.

This principle was discussed during the debates on the Constitution. In the Virginia Ratifying Convention of 1788, there was a lengthy debate concerning the militia.

Mr. HENRY  wished to know what authority the state governments had over the militia. 

Mr. MADISON  answered, that the state governments might do what they thought proper with the militia, when they were not in the actual service of the United States. 

Mr. JOHN MARSHALL  The state governments do not derive their powers from the general government… The state legislatures had the power to command and govern their militia before, and still have it, undeniably, unless there is something in this Constitution that takes it away… But there are no negative words here… To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption… All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to the Congress) are contained in the 10th section of the 1st article… But what excludes every possibility of doubt, is the last part of it–that ‘no state shall engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.’ When invaded, they can engage in war, as also when in imminent danger. This proves that the states can use the militia when they find it necessary.

Marshall, who would later become Chief Justice of the United States Supreme Court, went on to state: 

“[T]he power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been.”

As stated by Marshall, since the States were not divested of the power to govern their militia they have the authority to use their militia in any manner they see fit. Nowhere in the Constitution is there a single clause that places a prohibition on State power concerning the use of their militias. If a State wants to send its militia to the border to stop intrusions by illegal aliens, it has the power to do so irrespective of the Constitution or the powers delegated to the federal government.

In California, Article 5, Section 7 of our Constitution states:

“The Governor is commander in chief of a militia that shall be provided by statute. The Governor may call it forth to execute the law.”

Thus, a governor has the constitutional authority to call forth the militia independent of the California Legislature.

The conditions under which a governor can call forth the militia is spelled out in California’s Military and Veterans Code. Section 146 grants a governor the authority to:

“[C]all into active service any portion of the active militia as may be necessary, and if the number available be insufficient, the Governor may call into active service any portion of the unorganized militia as may be necessary, in any of the following events: 

a) In case of war, insurrection, rebellion, invasion, tumult, riot, breach of the peace, public calamity or catastrophe, including, but not limited to, catastrophic fires, or other emergency, or imminent danger thereof, or resistance to the laws of this state or the United States.” [Bold added]

Note: This provision grants the governor statutory authority to use California’s militia to enforce so-called federal immigration laws within the State.

Hundreds of thousands of illegal aliens pouring into California every year triggers several of these provisions and is nothing short of a human invasion. Thus, a governor has the statutory authority to use the militia to protect California’s border and stop the flow of illegal aliens. Arizona, New Mexico and Texas have similar provisions in their laws.

If you have ever watched a documentary on legal immigrants entering the country through Ellis Island you saw they were screened for any diseases. Thus, the States could employ this same standard under their police powers to protect its citizens from any potential diseases. Since the general power of protecting the health, safety and welfare of the people was reserved to the States, the federal government lacks the constitutional authority to prevent the States from performing this function.

In addition, a governor could send the State militia to the border to protect property. Other than federal land, where the States have no jurisdiction, all the property belongs to private citizens or the individual States. The federal government has no general constitutional authority over this land. It is well documented that illegal aliens are trespassing and vandalizing property during their trip north. Thus, a governor could mobilize the State militia to protect State land and private property.

California, Arizona, New Mexico and Texas have the power, unrestrained by the Constitution for the United States of America or any law passed by Congress, to use the militia to protect their citizens and borders from the human invasion flowing north. In fact, the individual States, when “actually invaded, or in such imminent Danger as will not admit delay,” have the constitutional authority, independent of the federal government, to engage in war when necessary. The governors of these States should assert their authority and inform the clowns in Washington D.C. and Mexico City that they have scraped plans to build a border fence because the militias are being mobilized to perform that function and we double dog dare you to try and stop us.

Note If you read the Naturalization Acts of 1790 & 1795 [http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html], which were the first two Naturalization Acts passed by Congress after the Constitution was ratified, you will note that they are not called Immigration Acts. In fact, the word immigration does not appear in either Act. These Acts negate the assertion that the Constitution made the so-called immigration process an exclusive federal function because individuals wishing to become citizens could do so through the States and their courts.

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

EDITOR’S NOTE: The following is Woods’ complete foreword to the 2006 reprint of Abel Upshur’s 132-page book “A Brief Enquiry into the True Nature and Character of Our Federal Government: Being a Review of Judge Story’s Commentaries on the Constitution of the United States”

Abel Upshur’s A Brief Enquiry into the True Nature and Character of Our Federal Government is one of the finest and most systematic defenses of the Virginian states’ rights school of constitutional interpretation ever written -and yet hardly anyone today has even heard of it, much less read it. American law students are amply exposed to the writing and arguments of nationalists like John Marshall and Joseph Story, but know nothing of the Jeffersonian alternative expounded in the work of John Taylor, St. George Tucker, Spencer Roane, or, indeed, Abel Upshur.

Upshur (1790-1844), a Virginian statesman and legal thinker, was educated at Yale and Princeton, and later undertook legal study in his native Virginia. He served brief terms as Secretary of State and Secretary of the Navy in the early 1840s until his premature death in an explosion aboard the USS Princeton. His Brief Enquiry, though, was surely his most significant and lasting contribution to American history.

Upshur’s book is a point-by-point refutation of Justice Story’s immortal Commentaries on the Constitution of the United States (1833). Story, in turn, was among the most prominent nationalist theorists of the Constitution, holding that the American Union had been created not by discrete sovereign states but by a single, aggregated American people. That may sound like a distinction without a difference to those new to the subject, but it amounts to perhaps the most important controversy in early American history -and perhaps in all of American history.

The compact theory, which Upshur sought to uphold against the nationalist version put forth by Story, held that the United States had been formed when the peoples of each of the thirteen states, each acting in its sovereign capacity, ratified the Constitution in the months and years following its drafting in 1787. (The very fact that the states voted separately to ratify the Constitution, and that the Constitution was not ratified by a single, consolidated vote of all individuals in the thirteen states, is an important piece of evidence to compact theorists that the states, rather than some single American people, created the federal Union.) They delegated to that government a small number of enumerated powers, reserving the remainder to themselves. Thomas Jefferson further proposed that the states could refuse to enforce any federal law that exceeded the powers that they had delegated to the central government. According to the compact theory, therefore, the United States consists of distinct sovereign peoples, organized into distinct states, as opposed to a single, aggregated people.

This is a dispute of no mean significance, since acceptance of the compact theory opens up all kinds of radical possibilities in defense of liberty, including both nullification (the right of a state to refuse to enforce a federal law it considers unconstitutional) and even secession. For compact theorists, such actions amount to the legitimate exercise of sovereignty by sovereign bodies in defense of their liberties against a federal government that was supposed to be the agent, not the master, of the states. The nationalist view, by contrast, would condemn both nullification and secession, as well as lesser expressions of state sovereignty, as illegal and possibly treasonous.

The nationalist view, on the other hand, denies that the states established the federal government or that the United States is a league or compact among states. The ratification of the Constitution by state holds no significance for the nature of the Union, according to this view. Ratification was an act of the whole people, who alone are sovereign even if they happen to have expressed that sovereignty through the intermediary of state conventions. State resistance to federal power, according to this reading of the American tradition, can be conceived of only as insubordination. The states are essentially helpless to defend themselves against the federal government, and must instead depend for the maintenance of their liberties on such notoriously unreliable mechanisms as national elections -as if elections alone could prevent unjust or wicked federal legislation or the Supreme Court.

Upshur’s book considers the logical and historical difficulties involved in the nationalist view. For instance, when exactly did the thirteen states constitute come to comprise one people – a central plank of the nationalist theory -and cease to be thirteen separate peoples? If they were one people because they had all been subject to the same sovereign during their history as British colonies, that would make them one people with Jamaica and Canada as well. Moreover, their common experiences as British subjects cannot render them one people, particularly when we recall, with Upshur:

The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. The colonies had no common legislature, no common treasury, no common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence; they had no right to vote in its elections; no influence nor control in its municipal government, no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever.

And, Upshur wonders, if the thirteen states really constituted one people, what would have been the status of states that chose not to ratify the Constitution? Could the others have coerced them into the Union by force? As it turned out, Rhode Island did not ratify until 1790 -two years after the document had gone into effect over the other states. During that time it never occurred to anyone that the U.S. government, by virtue of all the states having become “one people, had any political power over that recalcitrant state.

Another serious problem for the nationalist theory to overcome is that the Articles of Confederation proclaimed in 1781 that each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. There it is, as clear as anyone could ask for: each state retains its sovereignty, freedom, and independence. The states would have had to be sovereign in the first place in order for them to retain their sovereignty in 1781. Thus their status as separate and distinct sovereign states is officially acknowledged in the 1780s, meaning that any collapsing of the distinct peoples of the states into one people could not have occurred prior to that date.

“But no action so collapsing them occurred after that date, either. Nor could it, for sovereignty is neither partible nor alienable. The great international lawyer Emmerich de Vattel observed in The Law of Nations(1758) that several sovereign and independent States may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect State. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagement.”

Nationalists may be able to scrape together some kind of reply to these objections, though the persuasiveness of such a reply seems dubious. But Upshur’s book is filled with intractable problems for the nationalist position. With states’ rights having gone out of fashion, complacent nationalists have felt little need to bother replying to them, but they are serious and almost certainly insuperable objections all the same.

Get Upshur's Book Here

No plank of the nationalist theory is left standing in the wake of Upshur’s relent-less arguments from reason and history. But that version of the American constitutional tradition, however nonsensical and poorly supported by the evidence, was perceived as having been vindicated on the battlefield in 1865, and works like this one thus found themselves consigned to the dustbin of history. They were replaced by and large by the nationalist treatises they had successfully defeated in argument but that were found to suit the new, one-and-indivisible Union rather better.

Abel Upshur’s Brief Enquiry could have been a classic, but the historical winds blew in the wrong direction. Its recovery by Vance Publications rectifies a long-standing injustice, and brings this magnificent and powerful defense of a decentralized political order to a modern audience for the very first time.

Thomas E. Woods, Jr., Ph.D., Auburn, Alabama, October 2006

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

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

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

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

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

Holder responded to the question by saying:

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

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

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

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

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

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

Threatening Letters

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

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

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

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

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

Enough is Enough

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

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

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

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

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

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

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

Nullification in North Dakota? That’s just what could be coming if Governor Jack Dalrymple signs Senate Bill 2309 (SB2309). This week, the bill passed the senate by a vote of 32-15 and the house by a vote of 69-24.

The bill, just one page of legislative language, states:

1. The legislative assembly declares that the federal laws known as the Patient Protection and Affordable Care Act [Pub. L. 111 - 148] and the Health Care and Education Reconciliation Act of 2010 [Pub. L. 111 - 152] likely are not authorized by the United States Constitution and may violate its true meaning and intent as given by the founders and ratifiers.

2. The legislative assembly shall consider enacting any measure necessary to prevent the enforcement of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 within this state.

3. No provision of the Patient Protection and Affordable Care Act or the Health Care and Education Reconciliation Act of 2010 may interfere with an individual’s choice of a medical or insurance provider except as otherwise provided by the laws of this state.

This is a modification of the Tenth Amendment Center’s Federal Health Care Nullification Act – introduced in more than ten states this legislative session. Click here to track progress.

NULLIFIED!

Nullification – any act or series of acts which results in a particular federal law being rendered null and void, or unenforceable, within a state, is what Thomas Jefferson referred to as “the rightful remedy” to unconstitutional acts by the federal government.

Implied in any nullification legislation is enforcement of the state law. In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Interposition is explicitly stated in SB2309 through its requirement that the legislature to consider measures preventing the Affordable Care Act from being enforced within the state.

SUPREMACY

Opponents, however, claim that the law is “meaningless because state law can’t override federal law.” But, constitutionally-speaking, such a statement is dubious, at best.

All the founders agreed that the federal government would only be able to exercise those powers delegated to it in the constitution. It was clearly represented to the Constitution’s ratifiers that laws made outside those powers were not really laws at all – they were usurpations.

And, more importantly, such a statement is a direct reference to Article VI, the “supremacy clause” of the constitution. But, claiming that state laws cannot override federal law as a blanket statement is flat out wrong. Here’s the full text of the clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. [emphasis added]

The key points:

1. For a federal law to be supreme, it must be made in pursuance of a power delegated to the federal government in the constitution. If not, it’s no law at all, and state law is supreme.

2. There is no number two, it’s that straightforward.

THE MOVEMENT

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

Seven states have passed Health Care Freedom Acts to block health care mandates from being enforced. Eight states have passed Firearms Freedom Acts. Fifteen states – most recently Arizona – are using the principles of the 10th Amendment to actively defy federal laws (and a supreme court ruling, too!) on marijuana. Massive state resistance to the 2005 Real ID Act has rendered the law virtually null and void. And, five states, led by Texas HB1938, are now considering measures to nullify TSA violations of the Constitution through bans on groping or bans on body scanners altogether.

While some advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution. No court battle has been waged, no federal law has been repealed. Yet, the 2005 Act sits virtually null and void due to state-level resistance.

Some say that each successful rejection of federal acts will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.

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

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

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

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

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

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

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

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

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

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

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

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

Congressional Commerce Clause Abuse (CCCA)

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

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

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

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

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

What do do?

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

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

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

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

I was thrilled to see J.B. Williams report in NewsWithViews.com that the State of Montana has a broad-based State nullification bill currently proposed in its legislature. Derek Skees (R-Whitefish) is the State legislator who has introduced this much-needed legislation.

See the story here

The fact is, Skees’ State Nullification bill is only one of several outstanding freedom-first bills that is currently before the Montana legislature. I urge readers to go to PolyMontana.com to look at the many other fine pieces of pro-freedom legislation pending in the Montana State legislature:

http://polymontana.com/legislators/freedom-bills/

Unfortunately, one of those very fine bills has already been defeated: the “Sheriffs First” bill sponsored by Senator Greg Hinkle (R-Thompson Falls). This bill is long overdue and absolutely necessary to prevent federal usurpation of State and local law enforcement. That the Montana legislature failed to pass this bill indicates just how necessary it is to elect State legislators who truly understand constitutional government. I urge readers to read the following defense of the Sheriffs First law, written by my son, Constitutional Attorney Tim Baldwin:

http://tinyurl.com/4aclefs

Look through the list of the other freedom bills presently before the Montana State legislature and one will instantly recognize the potential for this State to stand at the “tip of the spear” in the reclamation and restoration of State sovereignty, freedom, and independence. (Plus, it reinforces why my family and I made the life-changing decision to move to this beautiful and wonderful State.)

For example, there is a bill to nullify federal health care laws; a bill to eliminate the misapplication of the 14th amendment to the US Constitution; a bill to nullify the Endangered Species Act; a bill to authorize permit-less Concealed Carry; a bill to transfer management of certain federal lands; a bill to provide the State eminent domain authority for federal lands; and, of course, the Sheriffs First act, which would have required the Sheriff’s authorization for federal law enforcement agencies to conduct arrests, searches, and seizures.

I would dare say: if you are a freedom-minded individual, goose bumps ran up your spine just from reading the above summary. I got goose bumps simply writing about it. Can one imagine the kind of freedom that would be unleashed in this great State should even a handful of these bills actually become law? And think of the numbers of other State legislatures that would quickly follow suit (especially here in the West) should any State legislature pass and a State governor sign these kinds of freedom protections into law!

This is why I keep insisting that, if freedom has a chance to survive in these United States, the American people must get their eyes off of Washington, D.C., and start focusing on their individual states. The authority and power to properly defend liberty has always rested with the states. I’m not saying we should not be concerned about who our US representatives and senators are–or who is elected President. I am saying, however, that freedom will never be restored from inside the Beltway. It is State independence, resolve, and nullification that will ultimately preserve and protect our liberties. And, as the creators of the US Constitution acknowledged, State nullification is absolutely requisite to freedom’s survival.

And, fortunately, Montana is not the only State with freedom-loving men and women in its legislature. I am hearing of lawmakers in states such as Oklahoma and Virginia (and several others) who are introducing similar freedom bills in their respective State legislatures. The question is, as always, will the people of these states get behind their brave legislators and help them get these freedom bills passed? If they are preoccupied with watching the major television network news channels (that focus almost entirely on national and international politics), they will not even know that these freedom bills are being proposed (most local media ignore them, too), and, therefore, will be totally inactive and ineffective in helping to restore the freedoms they claim to love.

I repeat: if freedom is to have a new birth in America, we must stop focusing on Washington, D.C., and start focusing on our individual states! I cannot overstate it: liberty will be won or lost at the State level!

*******

*If you appreciate this column and want to help me distribute these editorial opinions to an ever-growing audience, donations may now be made by credit card, check, or Money Order. Use this link:

http://chuckbaldwinlive.com/home/?page_id=19

(c) Chuck Baldwin

Much like last year’s health insurance bill, the recently passed Food Safety and Modernization Act (or “Food Patriot Act”), is unconstitutional for one simple reason: the federal government lacks the authority to regulate economic activities that do not cross state lines. 

But try explaining that to the Food and Drug Administration, which, in concert with the Department of Homeland Security, will now have greatly expanded power to smother small farmers and local food producers in bureaucracy and red tape. 

Not to mention the ability to enforce disturbingly authoritarian doctrines on the American people such as:

“There is no absolute right to consume or feed children any particular food.”

“There is no ‘deeply rooted’ historical tradition of unfettered access to foods of all kinds.”

“Plaintiffs’ assertion of a ‘fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families’ is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish.”

“There is no fundamental right to freedom of contract.”

Every single one of the above arguments (made by the FDA in response to a recent lawsuit) is diametrically opposed to the ideas of individual liberty on which America was founded, and is clearly contradicted by the Ninth Amendment to the U.S. Constitution, which states:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Yet, perhaps the FDA is not solely to blame for the logical disconnect between a federal agency’s legal argumentation and the foundation of federal law.

After all, the Supreme Court itself has opined on numerous occasions that there are no constitutional limits on federal power to regulate every aspect of American life under the guise of regulating commerce, state lines and sovereignty notwithstanding. And they’re the ones who interpret what the Constitution means, right?

Ironically, the very premise that the highest court in the land should have such a unilateral final say in questions of constitutionality is based on bad precedent. Chief Justice John Marshall simply fabricated the interpretive authority of “judicial review” in 1803, and flawed logic and legislation, invariably tending toward absolutism, has been heaped atop ever since.

But misreading the Constitution, or perverting it for political gain, does not change the legal force of the original document. To paraphrase Austrian economist Peter Schiff, the Constitution doesn’t need to be interpreted; it’s not written in Chinese. It just needs to be followed.

If federal lawmakers and their alphabet agencies refuse to obey the very document on which their political authority and legitimacy is based, then it is up to state and local governments to pass and enforce laws like the Intrastate Commerce Act (ICA), which explicitly remind the feds where their authority ends.

So far in 2011, legislation has been introduced in Arizona (SB1178), New Hampshire (HB324) and Virginia (HB1438) that defines intrastate commerce as anything produced, mined or grown and used within a given state’s boundaries. Such economic transactions are, by definition, not subject to federal regulation of interstate commerce.

New Hampshire’s proposed law would even go so far as to make it a felony for any agent of the federal government to attempt to enforce unconstitutional regulations in the state.

Thanks to the tireless work of the Virginia Campaign for Liberty, a version of the ICA has passed the state’s House of Delegates by a wide margin two years in a row. But that’s not nearly good enough. Success in the Virginia Senate will require a groundswell of public outrage similar to that which helped get the Health Care Freedom Act passed last year in seven states.

Absent passage of the ICA or similar legislation, there will be nothing to stop the FDA from using the Food Patriot Act to drive family farms across the country out of business; killing jobs in the growing industry of local organic food production, without improving safety at all.

Even if activists do succeed in properly defining interstate commerce, the federal government already operates with such blatant disregard for its own laws that it’s clear the question of state vs. federal power will ultimately have to be decided in the only court that matters anyway: public opinion.

As the people of the Middle East are reminding America, when the governed actively withdraw their consent, even the most repressive dictators are rendered powerless.

The days of relying on the wisdom of black-robed deities in Washington, D.C. are long past. Those gods have failed us. We the People, through our state and local governments, are all that stands now between a power-mad federal tyranny and the future of liberty in our constitutional republic. And time is running out.

Back in 2007, Maine generated national headlines when it took a step that then was not known to our mainstream political world: nullification. The Legislature took steps to ensure an unconstitutional bill that would drop a serious financial burden on the State would not be enforced within its territory. Although Governor John Baldacci refused to take the stand for Maine when he ultimately vetoed the nullification legislation, Maine still sent a message to Washington D.C. But next to D.C., Maine also sent a message to the entire country: the Federal Government is out of control.

Fast forward to 2010, when the midterm elections came and the political landscape in Maine underwent a major shift, which would change at least the immediate future greatly. Republicans control the Legislature and the Blaine House for the first time in decades, but not all are your typical Republicans. Some are Tea Party Republicans, others are more independently-minded libertarian Republicans, and both seem to have their share of Tenth Amendment supporters. With this new landscape, Maine has taken quite the step forward.

Now we look at 2011, January 7th, the cloture deadline, has come and gone. Almost sixty pages worth of submitted bills are on record, most waiting for L.D. numbers and committee assignments. Among these are not one, not even just a few, but several Tenth Amendment-related bills.

Only one has an L.D. number at this point and that one is L.D. 58, the bill that would nullify the Patient Protection And Affordable Care Act, introduced by Republican Representative Rich Cebra of Naples. For those who do not recall, or never were aware, Rep. Cebra has previously introduced a State Sovereignty Resolution which was put to rest fast back when the Democrats controlled the Legislature. In this session, he has done a lot to get the Tenth Amendment agenda advanced in the Legislature. He has also introduced legislation that would nullify federal firearm laws that affect guns manufactured and sold within State lines.

Republican Representative Mel Newendyke of Litchfield has introduced a bill similar to Rep. Cebra’s firearms bill, but this would also include ammunition in addition to firearms. In addition to this, he has also introduced a bill that would nullify federal laws in violation of the U.S. Constitution.

Republican Representative Aaron Libby of Waterboro has introduced the Intrastate Commerce Act, which would nullify Federal laws that illegally affect anything manufactured and sold in Maine. He has also introduced his own Federal Healthcare nullification bill, as well as a Defend The Guard Act, which would return control of the National Guard to the Governor, as provided for by the Constitution.

Democrat Representative Walter Kumiega of Deer Isle has introduced a Food Freedom Act, similar to the one that was introduced in Wyoming.

Independent Representative Ben Chipman of Portland has also brought Maine’s original nullification issue back to the table. As the Maine Legislature was the first among many to push through nullification of Real ID, it fell in Maine as then-Governor John Baldacci vetoed the legislation. Rep. Chipman’s new bill would repeal the Real ID law in Maine. The political climate has changed since 2007, the Legislature has shifted control from the Democrats to the Republicans, as well as the current Governor now being Republican as opposed to Democratic. But if what has been submitted is any indication, then the 125th Maine Legislature is very receptive to the idea of States’ Rights under the Tenth Amendment. Governor LePage has indicated previously, while still a candidate, that he is supportive of the idea and has been supportive of Attorney General Bill Schneider’s stand for the Tenth Amendment, by becoming involved with the lawsuit against the Federal Government over the Federal Healthcare laws. The Real ID repeal now stands a better chance at going through fully.

Also, a few names that shouldn’t be forgotten are those willing to take on supporting the Tenth Amendment as cosponsors. L.D. 58, the bill that would nullify the Patient Protection And Affordable Care Act, has several cosponsors. Among these cosponsors are Senator Ron Collins (R-York), Representatives Bruce Bickford (R-Auburn), Kathleen Chase (R-Wells), Phillip Curtis (R-Madison), Stacey Fitts (R-Pittsfield), Lance Harvell (R-Farmington), Beth O’Connor (R-Berwick), Heather Sirocki (R-Scarborough), and Tom Winsor (R-Norway).

As noted before however, the concept of States’ Rights is not a partisan issue. The mainstream media and elements of both parties have attempted to pass off nullification as a fringe idea, one that is now being used by bitter conservatives bent on crippling President Barack Obama in a political war. But with Republicans, Democrats, and Independents embracing the idea of States’ Rights, this claim is nullified, just like the Federal Government’s unconstitutional overreaching soon will be.

Chris Dixon [send him email] is the state chapter coordinator for the Maine Tenth Amendment Center. He is also a writer for Maine Web News.

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

The W.V. Coal Miner

Over the last couple of months, we’ve seen increased media attention focused on state efforts opposing the federal health care act passed last year. Along with state legal challenges and health care freedom legislation focused on the insurance mandates, eight states recently proposed bills declaring the entire health care act null and void, and imposing criminal penalties on any agent enforcing the act within their state borders.

But health care does not stand alone as an issue drawing the ire of state lawmakers. Many state legislators have grown increasingly frustrated with overreaching federal activity into areas rightly reserved to the states by agencies such as the EPA and FDA.

West Virginia Assembly Delegate Gary Howell (R-Keyser) recently introduced legislation into the House of Delegates  “establishing that the environmental regulation of coal and certain coal products mined and used within the state are exclusively regulated by the West Virginia Department of Environmental Protection.”

H.B. 2554 finds its basis in the Ninth and Tenth Amendment of the U.S. Constitution, as well as the West Virginia state constitution.

“The regulation of intrastate commerce, including the natural environment as affected by intrastate business, is vested in the states under the Ninth and Tenth Amendments to the United States Constitution and is specifically retained by the State of West Virginia according to Section 2, Article I of the West Virginia Constitution.”

The bill enjoys bipartisan support with three Democrats signing on as co-sponsors.

Howell said a recent EPA decision to pull a permit and shut down Spruce 1 mine shocked many state lawmakers and increased the possibility of passing the legislation.

“The odds jumped as West Virginia legislators are looking hard to fire back,” Howell said.

Spruce 1, located in Morgan County, was the largest surface mine permitted in Appalachia. The U.S. Army Corps of Engineers issued the permit in 2007 after a 10 year approval process, which included an assessment indicating the mine met clean water standards. But on Jan. 13, the EPA vetoed the permit and shut down the mine.

“EPA is taking this action under Section 404(c) of the Clean Water Act because the discharges associated with the DA Permit in Pigeonroost Branch, Oldhouse Branch and their tributaries will have unacceptable adverse effects on wildlife,” reads the agency’s final determination. “In addition, the impacts downstream due to the destruction of those streams will result in unacceptable adverse impacts to wildlife and also warrant EPA’s action under Section 404(c).”

Arch subsidiary Mingo Logan Coal Co. operates the mine. The company stands to lose a $250 million investment and officials estimate it will cost more than 200 high paying jobs.

“To give the EPA that much authority and the willingness to use it means that investors are going to be very cautious about investing in supplying energy when the federal government can nullify those investments and send your workforce home simply because they, on second thought or hindsight, decide that’s what they want to do,” Bill Bledsoe, executive director of the Norton-based Virginia Mining Association, said. “This EPA veto power doesn’t extend only to coal; it extends to anything. It means EPA can come in and shut any operation down without due process.”

Howell said the shutdown of a single mine represents just the tip of an iceberg, with federal regulation  hobbling West Virginia’s coal industry and hitting the state hard in the pocketbook.

“It is costing thousands of jobs and millions in reduced taxes to the state,” he said.

Howell said the bill will face its biggest hurdle in the judiciary committee. He fears committee members may kill the bill, thinking it unconstitutional. But Howell has already considered that possibility.

“Constitutional lawyers from the Cato Institute and the Goldwater Institute have both looked at the bill and say it passes Constitutional muster,” Howell said.

Federal judges would likely disagree. Courts have stretched the commerce clause far beyond its intended meaning, ruling that Congress can regulate virtually anything. But the framers intended the commerce clause to simply regulate trade between states, and never envisioned federal power extending inside state borders or to areas such as mining. James Madison wrote:

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

(For an in depth look at the original understanding of commerce click here.)

Howell said that his concerns run even deeper than protecting the Mountaineer State’s most important industry. It’s a matter of liberty.

“I’m the direct decedent of one of George Washington’s soldiers. For more than 230 years my family has defended the Constitution by force of arms in the service of our nation,” he said. “I have chosen to serve our nation as an elected official. I’m tired of big government ignoring the Constitution and damaging my state and my nation. I’m fighting back to provide jobs and economic stability to West Virginia by using the very tool the founders gave us as state legislators, the 10th Amendment.”

Throwing any anachronistic caution to the wind, Congress now assumes the authority to regulate anything and everything it deems worthy of its attention. Over 300 federal regulatory agencies exist, such as the FDA, EPA, USDA, CDC, OSHA, HHS, ATF, FDIC, FAA, FCC, FTC, FETC, FEMA, FERC and many others, each of which is empowered by Congress to effectively legislate through its regulations that are enforceable by law.

As with any institution, these seek greater influence and power—ostensibly to better accomplish their agency’s mission. Capitalizing upon any circumstance that might justify a request for an augmentation of their powers, bureaucratic busy-bodies are constantly clamoring for more legislation to attain that end. At times, they simply produce a new power by fiat.

If and when asked where they derive their authority to micro-manage the economic exchanges of American citizens, congressmen will defer to the judicially-inflated commerce clause. Like a plastic surgery addict, this constitutional provision has become entirely unrecognizable from its original form.

Originally, the constitutional authority to regulate interstate and foreign commerce was understood to be used to smooth out trade relations and activity between the states and between America and other countries. This primarily changed during FDR’s administration, when his stacked court rubber-stamped his economic meddling in the lives of individuals. The precedent then established continues to this day, leading the federal government to show no regard for what level and nature of commerce they are (wrongfully) “regulating”.

Despite decades of usurped authority, the constitutional reality is that the federal government was nowhere delegated the power to regulate intrastate commerce. Any economic activity which remains within the borders of a sovereign state should not come under the purview of the federal government, despite what a few lawyers in black robes appointed by FDR shortly thereafter told FDR. The states can and should reclaim this stolen power, and affirm their own authority to manage the economic activity which remain within their borders.

Last year in Utah, a small step in this direction was taken in conjunction with several other states. SB11 passed and was signed by the governor, putting into law an exemption from federal regulation for any firearms or firearms accessories both manufactured and sold within the state. This was a great start, but far more needs to be done; there are infinitely more areas of commerce than just guns.

To that end, the Utah Tenth Amendment Center is announcing today the creation of the Utah Intrastate Commerce Project—an initiative which seeks to help promote and support additional legislation that provides similar exemptions for other areas of commerce.

While all Utahns are subjected to the regulatory mandates of a vast cornucopia of federal agencies, not all can withstand the impositions forcibly made. Consider the massive compliance costs, paperwork, and regulatory hurdles required of those in the agricultural industry, for example. While large, multi-national companies can absorb these impacts without missing a beat, small family farms and other local agricultural businesses are significantly impacted, often having either their profit or existence threatened. The recently-passed FDA “food safety” law only aggravates this burden—and they’re only one of 15 agencies regulating the food industry!

Thus, the first bill being supported by the Project is one sponsored by Utah Representative Bill Wright—a dairy farmer by trade—which applies the same concept as last year’s firearms bill to agriculture. Under this bill (which is currently under review by legislative attorneys), those who produce agriculture in the state which is then sold in the state would be exempt from federal regulations. Their commerce would be entirely intrastate, and thus not subject to the purview of the federal government. The only regulations with which they would need to comply would be those coming from either the state or municipal government.

Imagine how very liberating this bill would be for our farmers! Those who sell their products at farmer’s markets, through CSAs, to local restaurants, and in other ways to fellow Utahns would be shielded by state law in disregarding the mandates imposed by the central government which has long exceeded and abused its constitutional authority. Compliance costs would be eliminated, productivity and innovation would surge, and the booming local/natural/fresh food sector would have reduced costs passed on to the consumer.

This is a win on multiple levels: for constitutional government; for the liberty of farmers and their customers; and for local agriculture which has long struggled under the weight of the federal government’s regulatory burdens. We’re very excited about this bill and believe its passage would be a great thing for all Utahns, whether or not they engage in intrastate commerce. Where Utah leads, other states will surely be following.

Be sure to visit the Utah Intrastate Commerce Project website to learn more, subscribe to the email list for important updates, and help spread the word!

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.

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