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

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

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

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

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

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

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

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

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

(This quote is only one of several.)

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

The most sophisticated presidential defenders make the following argument:

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

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

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

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

Get the New Book Today!

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

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

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

Most articles that seek to demonize the Tenth Amendment movement are so rife with logical and intellectual fallacies that even responding to them is a waste of time. However, in the case of Dan Casey, blogger for the Roanoke Times, an exception must be made.

For starters, Casey is writing in my (and Thomas Jefferson’s) home state of Virginia, and his piece, “The Whole Tenth Amendment Business is Dumb and Crazy” actually links to the Virginia Tenth Amendment Center, which I helped to found.

But, more importantly, in his article, Casey attempts to smear the brilliant men who wrote the U.S. Constitution by claiming the document doesn’t mean what they explicitly said it meant.

As James Madison might have said, there is a host of proofs that Dan Casey is dead wrong.

Like so many others before him, Casey leads his attack with a flaccid attempt to discredit the “Tenthers” (as he pejoratively calls them) by linking constitutionalism with support for slavery.

Of course, this completely obscures actions by Tenthers of an earlier era, who used the 10th Amendment as the prime justification for the “States Rights” argument that itself was a smokescreen for the real cause of the Civil War — the South’s insistence on preserving slavery.

Behold straw man number one: The Tenth Amendment is code for racism. Casey is either ignorant of the fact that many Northern states used the Tenth Amendment as a justification for undermining slavery long before 1861, through their refusal to enforce the Fugitive Slave Acts, or he has chosen to ignore that inconvenient part of history. 

Either way, it doesn’t matter. Historical accuracy is not Casey’s goal. He merely intends to color his readers’ perception of Tenthers by linking them, however spuriously, with Southern slaveholders. To acknowledge the truth about the history of states’ rights in the North might disrupt his narrative of unquestioning obsequiousness to centralized power.

Casey continues:

But apart from aligning themselves with slaveholders, there’s another more fundamental flaw in the whole modern Tenther argument. In a nutshell, it’s this: Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.

In fact, the larger document directly contradicts the Tenthers’ argument.  That’s right — words the founding fathers quite deliberately wrote into the Constitution clearly and effectively rebut the Tenthers’ faulty reasoning.

It’s hard to imagine where Casey got this impression, considering that James Madison himself described the document he helped to write by saying

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.

Thomas Jefferson also knew the Tenth Amendment was more than just “a single sentence.” He called it the Constitution’s foundation: 

I consider the foundation of the Constitution as laid on this ground: All powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.

It really cannot be any clearer than that. The self-serving opinions of Dan Casey and myriad federal judges notwithstanding, if the people and the states didn’t explicitly surrender a power in the Constitution, then they still retain it. Whether or not they choose to exercise it is another story.

But if federal power is limited to what is enumerated in the Constitution, Casey asks, why do we need a Bill of Rights at all?

The problem for the Tenthers here is that the First Amendment has nothing to do with what Congress can do. It’s all about what Congress can’t do.

And this is where the Tenthers’ entire argument falls apart. Because under Tenther-logic, unless the Constitution permitted the feds to establish religion, or abridge freedom of speech and so on, then the feds would automatically be prohibited from doing it.

Obviously, the founding fathers themselves did not believe that, or they never would have felt the need to write the First Amendment in the first place.

Here Casey has a point, although not the one he thinks. He is right, the feds are automatically prohibited from doing any of the things he lists, just as they are prohibited from requiring every American to buy health insurance, based on the fact that those powers are not delegated under Article 1 Section 8.  

But, more importantly, many of the founders themselves argued against the Bill of Rights for the same reason as Casey: It should not be necessary. 

Alexander Hamilton said

…bills of rights… are not only unnecessary in the proposed constitution, but would even be dangerous. …For why declare that things shall not be done which there is no power to do? 

If there is any argument to be made against the Tenth Amendment, it is Hamilton, not Casey, who has made it.

The Bill of Rights should never have been needed. Every one of the first 10 Amendments is essentially legally redundant based on the text of the Constitution itself.

But, over time, activist judges and complicit politicians have turned the entire document on its head, until the only rights left to the people are those explicitly granted, while the only powers not yet claimed by government are those explicitly prohibited.

Yet Casey calls Tenthers, who only want the Constitution’s clear language enforced, ”intellectual boobs who can’t be bothered to think for themselves.” Apparently, thinking for oneself means ignoring the purpose of our founding documents, and gratefully acquiescing to federal tyranny.

Those of us who demand liberty are feared and ridiculed by weak minded men like Dan Casey who consider themselves intelligent, but are really nothing more than errand boys for the State.

As Samuel Adams once said

If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen.

In and of itself, the federal government possesses no power.

Zero.

Zilch.

Nada.

Most Americans will read my opening statement with raised eyebrows. Some will immediately dismiss it with a shrug, figuring the author some kind of nutcase. Others will simply shake their head in disbelief, or perhaps blow it off  with an eye-roll.

In fact, most Americans view Washington D.C. as the font of all power. The final arbiter. The last word.

But the attitude held by the majority of Americans toward the federal government rests upon a gross misunderstanding of the nature of political power.

In truth, the federal government possess no power. At least none that it wasn’t granted by you and me.

You see, we the people ultimately possess all authority.

It was on that principle that our founding fathers rebelled against the rule of the British Crown, and it was upon that foundation that the United States was built.

Fundamental to the thinking of our founders was the idea that all human beings exist as autonomous moral agents. The Creator endows each of us with a free will, and He never forces his will upon humankind. Thus, no human being has the right to force her or his will on another person.

The writings of John Locke, an English philosopher and theologian, greatly influenced the founding generation. He explained it this way.

To understand political power right, and derive it from its original, we must consider what state all men are naturally in, and that is, a state of perfect freedom to order their actions and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature; without asking leave, or depending on the will of any other man.

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst the other without subordination or subjection; unless the Lord and Master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.

But in order to live together and prosper, people must cooperate. Human beings possess an innate desire to seek out the fellowship of others. This drives us to group together in political societies. It follows that some form of government becomes necessary, and that requires individuals submit to authority and create a mechanism to protect life, property and individual liberty.

Consent is the key to understanding the scope of governmental power. Each individual in a political society consents, of his own free will, to be governed. Citizens remove themselves from the state of nature (perfect freedom) and willingly submit to the authority of government.

Thomas Jefferson summed up these ideas in two sentences of the Declaration of Independence.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

The Constitution of the United States is simply a legal document granting limited, enumerated power to a federal government. But ultimately, the power rests with the people. Without the grant, the government has no power. In fact, it ceases to exist. We willingly cede a small bit of our perfect liberty to a general government – in much the same way one person grants another the legal authority to handle their affairs through a power of attorney.

The wording of the preamble makes this clear. Constitutional scholar Robert Natelson points out that the framers followed a common practice in royal charters, identifying the grantor using large majestic letters.

We the People of the United States…do ordain and establish this Constitution for the United States of America.

And power we the people grant, we the people can take away. The Declaration of Independence continues:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Get the New Book Today!

Too many Americans place government in the ultimate place of authority, assuming it decides what we may or may not do. Too many Americans treat government as an almost omnipotent entity. Too many Americans turn and face Washington D.C. with awed reverence.

The veneration is misplaced.

In truth, we – the American people – reserve the bulk of power to ourselves.

The federal government  was intended to exist and operate bound by the Constitution, a grant of limited authority, constraining federal power to specific spheres, limiting it to specific functions, and defining its scope and role.

And as the grantor of all power and authority, we the people must insist that the federal government stay within its properly defined powers and role.

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

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

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

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

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

Get the New Book Today!

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

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

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

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

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

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

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

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

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

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

The following is based off a speech given at Nullify Now! in Orlando, FL on 10-10-10.
Watch the video here: Part 1, Part 2

We don’t need no stinkin’ permission to exercise our rights. We need to exercise our rights whether they the government want us to or not.

Ok, so let’s start out with the easy stuff, here… I’m a proud tenther. That means I believe that the federal government is authorized to exercise only those powers that we the people delegated to it in the constitution – and nothing more.

The founders created a system, unique in history, where the most difficult and most divisive issues would be kept close to home in our states and our communities. And, there’s a good reason for such a system – it’s the only kind that can allow people of widely varying political, religious, and economic viewpoints living together in peace. I’m from California. In Florida, you likely don’t want California’s policies. We shouldn’t be required to have Florida’s. Maine should be different from Montana, Texas should be different from South Carolina, and so on. This is the system that best advances freedom.

Unfortunately, though, for a long long time, there’s been very little that the federal government does that actually IS authorized by the constitution.

QUESTION: WHAT DO WE DO ABOUT IT?

- Do we lobby congress or march on DC and ask that federal politicians limit their own power?
- Do we sue them in court and ask federal judges to limit federal power?
- Do we vote the bums out – and hope that the new bums will reject their own power?

Thomas Jefferson and James Madison both warned us that if the federal government ever became the sole and exclusive arbiter of the extent of its own powers – that power would endlessly grow…regardless of elections, separation of powers, courts, or other vaunted parts of our system.

They were right. For over a century, we the people have been suing, and marching, and lobbying, and voting the bums out. But yet…year in and year out, government continues to grow and your liberty continues to diminish. And, it doesn’t matter who is the president, or what political party controls congress – the growth of power in the federal government never stops.

Power – the problem we face today is about power – and until we address the absolute fact that the federal government has too much power, and going to the federal government to fix problems caused by federal power – things will never change.

John Adams once gave us a warning that “liberty once lost, is lost forever.” He wasn’t necessarily saying that there’s no hope whatsoever. But instead, it was an important lesson. Whenever government tells us they need more power to deal with an “emergency” – and they always have them for both foreign and domestic issues – that same government will never voluntarily give that power back. They’ll never just decide that the newfound power is something they don’t want, and that liberty will never be regained without a long, difficult struggle by the people.

WHAT WOULD JEFFERSON DO?

How do we fix this mess? Well, I think I’m in pretty good company if i go with Thomas Jefferson’s advice that “whensoever” the federal government exercises “undelegated powers” … “a nullification of the act is the rightful remedy.”

Reading this, you’ll notice that Jefferson didn’t say that a nullification of the act is a pretty decent remedy. He didn’t say that nullification is just a rightful remedy, or even a good idea to try after voting bums out or going to court. He told us that when the feds exercise powers they’re not supposed to exercise, We’re not supposed to wait for the federal government to correct itself. Jefferson’s advice is that we must resist violations of our rights on a state level – every time it happens.

Around the country, there’s a lot of talk about nullification – but what is it, really? I can think of no better way to define it than how Tenth Amendment Center research analyst Derek Sheriff has done – by describing what it is not:

Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.

Nullification is something that’s already happening around the country – and Derek explains the process:

Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law or it might even amend your state constitution. It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.

At its very core, nullification is any action on a state level that results in some federal law being null and void – and of no effect. It’s about “We the People” exercising our rights whether the politicians or judges in Washington D.C want to give us “permission” to exercise those rights or not. We don’t need no stinkin’ permission.

HEMPCON

I recently went to an event called Hemp Con down in my part of the state – Los Angeles. This is a big event at the LA convention center – with loads of vendors and businesses from every angle you can think of in support of the marijuana industry.

There were home security companies to help protect your weed, solar power companies to help you grow your weed, doctors giving out medical marijuana cards to virtually anyone with $80 and an hour of time. There were even delivery services – you can get your marijuana delivered to you 24 hours a day…in 30 minutes or less. The pizza companies have nothing on these guys! It was amazing if you think about it from an economic standpoint – this was capitalism, the free market – working its wonders around an industry.

What’s the point?

Virtually every single one of those businesses was either directly violating federal law, or aiding someone else in doing so because marijuana is illegal, according to the feds – but not the constitution – in all situations. And guess what – no ATF or DEA thugs shut the place down. Business functioned, people did what they wanted to in freedom, and that was that.

In fact, in 2005, the Supreme Court ruled that state medical marijuana laws were illegal. At that time there were 10 states that had such laws. Since that court ruling came down, not one single state has repealed their law. And today, there’s even more adding on – there’s now 15 states defying Washington DC on marijuana, and they’re getting away with it.

THE BLUEPRINT

When enough people say no to unconstitutional laws, regulations, and mandates…and enough states pass laws to back those people up, there’s not much the federal government can do, but slowly and consistently back off. There’s no tanks rolling into Los Angeles to shut down the dispensaries. This is far from perfect, but it can work, and it is working right now.

Get the New Book Today!

Whether it’s gun rights, or health freedom, or maybe someone should start rejecting the Department of Education because we’re sick of the federal government controlling our schools…the solution to our problems does not lie with the federal government. It lies in our states, and with ourselves.

THE BIG QUESTION

So here’s the final question – and my big challenge to you today. When it happens some day, and it will, that the federal government tells you that you have to purchase some healthcare plan, and you start thinking about penalties for violating that “law” – ask yourself this…do you have as much courage as the pot smokers?

I sure hope you do. Because we need to exercise our rights whether they give us “permission” to or not!

A Response to Ian Millhiser’s Diatribe on “Tentherism.”

• Introduction: How many ways can progressives distort and rewrite history?
• Fallacy #1: “Tentherism has no basis in constitutional history or text.”
• Fallacy #2: The Founding Fathers Rejected “Tetherism.”
• Fallacy #3: “Tentherism” is “dangerous” and “authoritarian.”

How many ways can progressives distort and rewrite history?

If you read a recent piece entitled “Doomed to Repeat History” by policy analyst Ian Millhiser at the progressive think tank Center for American Progress the answer would be countless. His inaccuracies, partisan propaganda, scare tactics, and mistruths scream for a response. Of course, the statist zombies who sop up progressive talking points will probably view Millhiser’s work as the trump card against “tentherism,” but that is the principal problem. Millhiser has no idea what he is talking about (surprise!). He does not understand the objectives of the Tenth Amendment movement and his definition of “tentherism” is hardly accurate. Perhaps he doesn’t care, since demonizing those who support liberty and limited central government is what progressives do best, but Millhiser obviously needs an elementary lesson on the Tenth Amendment and American history in general.

Millhiser begins his piece by stating that “conservatives are over-reading the Tenth Amendment.” This must not be allowed to happen, he contends, because “Tentherism is dangerous,” “Tentherism has no basis in constitutional text or history,” and “Tentherism is authoritarian.” The first charge smacks of a statement Duke Law School professor Neil Siegel made in March when he called nullification “lawlessness.” From the evidence, it appears Duke Law School graduates and professors (Millhiser received his J.D. from Duke) are well versed in statist propaganda but don’t have a clue about the ratification of the Constitution or the original intent of the Tenth Amendment. The first and third can be refuted in tandem, but the second is where Millhiser ignores much of early American history and cherry picks individuals and events to fit his “tentherism” paradigm.

Fallacy #1: “Tentherism has no basis in constitutional history or text.”

When the Constitution was sent to the thirteen “FREE AND INDEPENDENT STATES” – as Thomas Jefferson called them in the Declaration of Independence – for ratification, it faced an uphill battle in the three most powerful States at the time, New York, Massachusetts, and Virginia. Early odds had it failing in all three. A handful of opponents in each State ended up switching their votes in favor of ratification because they were guaranteed a bill of rights would be added to the Constitution. Each of these States submitted a list of recommended amendments, and at the top of each list stood a State sovereignty amendment. Massachusetts’ proposed first amendment read: “That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.” Virginia’s proposed first amendment stated: “That each state in the Union shall respectfully retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.” And New York’s proposed fifth amendment demanded that “no power shall be exercised by Congress, but such as is expressly given by this Constitution; and all others, not expressly given, shall be reserved to the respective states, to be by them exercised.” Maryland and South Carolina also submitted proposed State sovereignty amendments.

There you have it. Jefferson, a Founding Father, called the States “free and independent” in America’s first State’s rights document, and five States submitted a State sovereignty amendment as a condition of ratification. The delegates were persuaded to refrain from stating amendments were a “pre-condition,” but that was the point. These ultimately became the Tenth Amendment to the Constitution. And don’t forget that North Carolina and Rhode Island did not ratify the Constitution until 1789 and 1790 respectively, thus making them independent countries for a time. That is the best expression of “tentherism.” But the Tenth Amendment tradition goes further, and it includes other members of the founding generation, many of whom were ardent Federalists.

Founding Fathers Jefferson and James Madison laid the groundwork for the Tenth Amendment movement in 1798 by authoring the Virginia and Kentucky Resolves. Madison argued in the Virginia Resolves that “the powers of the general government” result “from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact,” and are “no further valid than they are authorized by the grants enumerated in that compact….” As such, the States have the authority, under the Tenth Amendment, 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 another word for nullification, and it is based on the Tenth Amendment.

Jefferson was more direct in the Kentucky Resolves. He simply stated that the States “delegated to [the federal] government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force….” How did he come to this conclusion? It was “expressly declared by one of the amendments to the Constitution…” i.e., the Tenth Amendment. Jefferson and Madison probably knew something about American constitutional government. Of course, Millhiser illustrates Madison’s inconsistency, a trait that marked his career, but Jefferson never backed down from this position.

And it wasn’t just Jefferson and Madison who advanced the Tenth Amendment in the founding generation. Northerners used it to support their agenda against the federal government as well. Several members of the famous secessionist group called the Essex Junto and the later Hartford Convention that met during the waning months of the War of 1812 were from the founding generation. For example, George Cabot served as a delegate to the Massachusetts ratifying convention of 1788; Nathan Dane was a member of the Continental Congress; James Hillhouse served in the American War for Independence and in the United States Senate; Daniel Lyman served at the Battle of White Plains with George Washington; Samuel Ward served in the War for Independence and attended the Annapolis Convention of 1786 that sent in motion the Constitutional Convention; Timothy Pickering was United States Secretary of State and a patriot leader during the War; Fisher Ames was a member of the Massachusetts ratifying convention and served in the United States Congress; Francis Dana signed the Articles of Confederation, served in the Continental Congress and United States Congress and supported the Constitution at the Massachusetts ratifying convention; and Theophilus Parson wrote the set of proposed amendments at the Massachusetts ratifying convention in 1788 that persuaded a few opponents to support the Constitution. As with Jefferson and Madison, these men knew something about the Constitution and the Tenth Amendment, and all were Federalists!

In fact, in 1815, the Hartford Convention said the following in their report and resolutions:

That acts of Congress in violation of the Constitution are absolutely void, is an undeniable position. It does not, however, consist with the respect and forbearance due from a confederate State towards the General Government, to fly to open resistance upon every infraction of the Constitution. The mode and the energy of the opposition should always conform to the nature of the violation, the intention of its authors, the extent of the injury inflicted, the determination manifested to persist in it, and the danger of delay. But in cases of deliberate, dangerous, and palpable infractions of the Constitution, affecting the sovereignty of a State, and liberties of the people; it is not only the right but the duty of such a State to interpose its authority for their protection, in the manner best calculated to secure that end [emphasis added].

These Federalists nullified federal laws in support of the War! So, either Millhiser is ignorant of this history when he writes “Tentherism has no basis in constitutional text or history,” or he purposely ignores it. It’s probably the former. Either way, contrary to Millhiser’s claims, the Tenth Amendment was firmly entrenched in the history of the founding period and it is entirely based on the text of the Constitution. Maybe Millhiser forgets that the Tenth Amendments is part of the Constitution, and to the States who proposed it, the Amendment limited the power of the federal government to delegated items or those listed in Article 1, Section 8 of the Constitution.

Fallacy #2: The Founding Fathers Rejected “Tetherism.”

Millhiser charges that regardless of how narrowly modern “tenthers” view the Constitution, members of the founding generation, including Washington, Alexander Hamilton, and John Marshall, along with the First Congress, thought otherwise. His uses two bills from the founding period as evidence: a 1790 law regulating commerce with the American Indian tribes and the incorporation of the First Bank of the United States in 1791. He takes the first out of context and murders the history of the second.

Millhiser contends that “Washington’s decision to sign the [1790 Act to Regulate Trade and Intercourse with the Indian Tribes] demonstrates his expansive view of the commerce power – a view that in no way resembles tentherism.” He argues that the act “reached far beyond economic matters…including wholly noneconomic crimes such as assault or murder.” The bill was written in the midst of the Northwest Indian War, and Washington had insisted that Congress attempt to extend the olive branch to the Indian tribes in the hope that war could be eliminated. At the same time, Washington was planning a major military campaign against the tribes if hostilities continued. They did until 1795.

Most of the 1790 act was designed to regulate trade but the portion of the bill that Millhiser outlines was designed to regulate the “Intercourse” with the tribes and had nothing to do with commerce or the “commerce clause” of the Constitution. As the title suggests, it was a piece of legislation that accomplished two tasks, regulating “Trade and Intercourse.” In the eighteenth century the word intercourse meant social dealings, so Washington’s signature did not imply that he agreed with an “expansive view of the commerce power.” It simply meant he didn’t want Americans stirring hostilities through their “intercourse” with Indians while in Indian territory. Here is the text of that portion of the bill:

That if any citizen or inhabitant of the United States, or of either of the territorial districts of the United States, shall go into any town, settlement or territory belonging to any nation or tribe of Indians, and shall there commit any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians, which, if committed within the jurisdiction of any state, or within the jurisdiction of either of the said districts, against a citizen or white inhabitant thereof, would be punishable by the laws of such state or district, such offender or offenders shall be subject to the same punishment, and shall be proceeded against in the same manner as if the offence had been committed within the jurisdiction of the state or district to which he or they may belong, against a citizen or white in habitant thereof.

Taking the language of the bill and the historical situation out of context, which Millhiser has done, to satisfy or support an agenda against the attack on national health care is irresponsible to say the least. Dishonest would be a better word, but again, maybe Millhiser is ignorant of the history. That wouldn’t be shocking.

Millhiser’s characterization of the debate over the incorporation of the First Bank of the United States in 1791 also suffers from historical inaccuracies. He contends that Madison opposed the plan because he worried about the “spending powers” of the federal government. Madison never opposed the Bank on those terms. In his words, if the Congress had the power to incorporate a bank, then “They could incorporate companies of manufacturers, or companies for cutting canals, or even religious societies….” This was a power the federal government did not possess. He anticipated that chartering a bank would have to be accomplished through the “general welfare clause” or the “necessary and proper clause” of the Constitution, and he considered both approaches fraudulent.

Madison advanced during both the debate over the Bank and later in his Virginia Resolves that the “general welfare” clause of the Constitution had been “copied from the very limited grant of powers in the former Articles of Confederation.” This was true. In fact, during the Constitutional Convention in 1787, Gouverneur Morris of Pennsylvania attempted to enlarge the power of the central government under the “general welfare” but was blocked by Roger Sherman of Connecticut. The “general welfare clause” of the Constitution carried the same weight as the “general welfare clause” of the Articles of Confederation. In essence, only items listed in Article 1, Section 8 of the Constitution were for the “general welfare” of the Union, and a Bank of the United States was not one of them.

And Madison said in 1791 that the “necessary and proper clause” was “in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and, as it were, technical means of executing those powers. In this sense it has been explained by the friends of the Constitution, and ratified by the State Conventions.” Of course, Millhiser claims that there are “few, if any, substantive limits on Congress’s [SIC] spending power” through the “general welfare clause,” but that wasn’t the main thrust of Madison’s argument; moreover, Millhiser’s characterization of the “general welfare clause” is incorrect according to most members of the founding generation, including the men who placed it in the Constitution.

When Washington received the bill for his signature, he was concerned that Madison considered the bill unconstitutional. He asked Jefferson and his Attorney General Edmund Randolph to submit their opinion on the issue. Jefferson’s rebuke of the Bank centered on the not yet ratified Tenth Amendment to the Constitution. Washington believed Jefferson and concurrently asked Madison to write a veto message and Hamilton to submit an argument in favor of the Bank. He told Hamilton that he would only sign the bill if his arguments dwarfed Jefferson’s. Washington ultimately sided with Hamilton, in part because he bought Hamilton’s “loose construction” arguments, but also because Washington thought the issue more closely affected Hamilton’s department. It must be said that Washington was never staunchly ideological – that is partly why everyone trusted him with the potential powers of the executive branch – so Millhiser’s description of Washington as a firm proponent of “loose construction” stretches the truth.

Regardless, Millhiser’s choice of characters is part of his problem. He picks two of the most ardent centralizers of the founding generation, Marshall and Hamilton, to prove his points. Yet, their comments on federal power during the months leading to ratification of the Constitution more closely resemble “tenther” arguments than Millhiser’s. Hamilton said in 1788 that, “The most powerful obstacle to the members of Congress betraying the interest of their constituents, is the state legislatures themselves…jealous of federal encroachments, and armed with every power to check the first essays of treachery….Thus it appears that the very structure of the confederacy affords the surest preventatives from error, and the most powerful checks to misconduct.” That sounds a lot like state interposition or “tentherism,” doesn’t it? And it was Hamilton who said that the direct democracy Millhiser advocates had historically produced “tyranny” and “deformity.” So much for Hamilton being Millhiser’s “guy.” And Jefferson had this ringing endorsement of Hamilton: “Hamilton honest as a man, but, as a politician, believing in the necessity of either force or corruption to govern men.”

What about Marshall? Marshall made the following statements during the Virginia Ratifying Convention of 1788: “Has the government of the United States the power to make laws on every subject?…Can they go beyond the delegated powers?…If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider a law as coming under their jurisdiction. They would declare it void.” He also thought a federal bill of rights was unnecessary because most States already had a bill of rights. In essence, the States protected their citizens from federal tyranny through the State courts. So, the federal government has “enumerated” and “delegated” powers and to go beyond those powers would violate the Constitution. Of course, Marshall thought those powers were expansive when he legislated from the bench during his time as Chief Justice, but in 1788 he argued a “State’s rights” position. Millhiser left that part out, as do most Marshall supporters. It seems, however, that the Federalists Millhiser uses as “character witnesses” for his cause would not support his progressive agenda, regardless of how he tries to spin the issue.

And to make matters more interesting, perhaps the most ardent nationalist of the founding period, James Wilson of Pennsylvania, had this to say about the enumerated powers of the Constitution during the Pennsylvania ratifying convention of 1787:

They found themselves embarrassed with another, of peculiar delicacy and importance. I mean that of drawing a proper line between the national government and the governments of the several states. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficult, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care. It is only a mathematical science that a line can be described with mathematical precision. But I flatter myself that, upon the strictest investigation, the enumeration will be found to be safe and unexceptionable, and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature [emphasis added].

Later in the convention, Wilson declared that a small number of representatives in the federal government was adequate because “its objects are enumerated, and are not confined, in their causes or operations, to a county, or even to a single state. No one power is of such a nature as to require the minute knowledge of situations and circumstances necessary in state governments possessed of general legislative authority.” To Wilson, enumerated meant limited, so members of the United States Congress had limited power under Article 1, Section 8. Surely, national health care and many other progressive measures require the “minute knowledge of situations and circumstances” in towns, counties, and even States and are not listed as enumerated powers of the federal government. In order to appease opponents of the Constitution, Wilson, a Federalist, rejected in 1787 an “elastic” interpretation of the “commerce clause,” “general welfare clause,” and “necessary and proper clause.” Progressives like Millhiser won’t discuss that.

Fallacy #3: “Tentherism” is “dangerous” and “authoritarian.”

Millhiser is a lawyer by training and it shows in his arguments against the Tenth Amendment. His piece reads like a legal brief in worthless American case law. He completely mischaracterizes Tenth Amendment supporters when he states, “Tenthers…want to strip the American people of their power to make such decisions and give it to a Supreme Court dominated by conservatives.” Since when? As a principle, the Tenth Amendment movement does not care about the Supreme Court nor does it put its faith in Supreme Court decisions. The Tenth Amendment is about limited, self-government and the ability of the people of the States, those who elected members of the State ratifying conventions, those who elected the members of the State legislatures, and those who would take action under the Tenth Amendment, to check the power of the federal government through state interposition and decentralization, not case law. As Jefferson stated it is the right of “self-government” that directed the Kentucky Resolves, not centralization and “authoritarian” government, as Millhiser claims, and certainly not faith in the United States Supreme Court. Jefferson once said that he could not understand why people put faith in Supreme Court decisions because they were simply the “obiter dissertation of the Chief Justice [John Marshall].” So-called “tenthers” would agree.

I have pointed out before here and here that decentralization is a philosophy that all groups, left or right, should support because it protects the interests of the community from oppressive centralization and authoritarian government. Certainly, Millhiser would agree that the people of California have a better idea of problems in California than the people of Alabama and vise-versa and for Alabama to legislate for California would be disastrous for the people of California. “Tentherism” is only dangerous to those who, like Millhiser, need a strong central authority to ram their agenda down the throats of the American people.

If Millhiser was truly interested in democracy, he would support the Tenth Amendment. Without question, many “Anti-federalists” who pushed for a State sovereignty amendment generally championed “democracy” and argued against ratifying the Constitution because they said it was undemocratic. By design, local and State governments are more democratic than the federal government as most have a more reasonable representative ratio, greater minority representation, and the direct democracy methods of initiative, referendum and recall.

But that is not what Millhiser means by “democracy.” His “democracy” is more akin to the national socialism of democratically elected progressives like Adolf Hitler, Benito Mussolini, and Francisco Franco, and it rests on the destruction of the limited federal republic of the Founders and the use of propaganda and demagoguery to influence voters. It is centralized power or what John Randolph of Roanoke called the problem of “King Numbers,” the tyranny of the fifty plus one percent. As many “Anti-federalists” pointed out in 1787 and 1788, Millhiser’s brand of democracy cannot work over a large geographic and demographic community without destroying liberty.

Millhiser’s conclusion that “Democracy is not easy…” reminded me of a line from the film Green Zone. During a briefing on the political instability of Iraq, administration official Clark Poundstone, played by Greg Kinnear, defended the dismantling of Iraq and ensuing violence and unrest upon the premise that “Democracy is messy!” See, progressives do think alike! Take our democracy and like it you ignorant wretches! Which is more authoritarian, a cause that champions individual and community liberty or one that forces people to think and act a certain way in the name of “progress?” I’ll take my chances with the former.

Brion McClanahan holds a Ph.D in American history from the University of South Carolina and is the author of The Politically Incorrect Guide to the Founding Fathers (Regnery, 2009).

If the current version of the US Constitution, as construed and applied by the federal government (in every branch) over the past 220 years, were reduced to writing in the form of a new constitution (the original language and meaning of the US Constitution notwithstanding), would the people of the states, as they existed in 1787, ratify the constitution? I think you would have to be utterly void of understanding of the principles of a constitutional federal republic and void of the history of our country and forefathers to state that such a constitution would be ratified today. This does not even take into consideration whether the states today would ratify the constitution of 2010–though there would likely be several states that would choose to be bound to the tyrannical national system existing today, but most certainly not all would.

Through various ways and means, the constitution as applied in 2010 literally contradicts not only the limitations placed upon the federal government, but also the retained powers of the sovereign states and the very character and nature of the union in 1787. So, what does this mean for the posterity of those people in 1787? It means that we are living under the force of a constitution which we did not ratify or consent to. Put differently, we are living in slavery, for the very definition of slavery is a people living under the force of government against their will.

It is quite clear from the plain meaning of the US Constitution that it was ratified with certain principles and understandings at that time to protect usurpations of the federal government over the states and the people respectively. The states sent delegates to the constitutional convention from May to September 1787 to address and remedy the flaws of the Articles of Confederation. For five months those men debated, articulated and prayed over the formation of the constitution. After the proposed constitution was sent to each state for consideration, each state convened in their own conventions to discuss the principles of free government as it related to the proposed constitution and whether that state should ratify it. For each state that ratified the constitution, they expressly stated that their ratification was to “secure the Blessings of Liberty to ourselves and our POSTERITY.”

One thing is certain: those involved in the ratification of the US Constitution expected that its principles and meanings be followed by their posterity, for without its fixed meaning, the “security” of the constitution would be seriously compromised. Indeed, how can a constitution secure the blessings of liberty for posterity when the meanings and applications of the constitution change by the opinion of 9 non-elected, President-appointed, life-term judges, who are connected to and dependent upon the very system of government the constitution was intended to limit? Talk about a conflict of interest.

If our forefathers who ratified the US Constitution intended to secure the blessings of liberty for their posterity but believed that its meaning, application and limits would change over time, then the US Constitution (as applied today) falls severely short of securing the blessings of liberty for their posterity. Are the people of fifty states in 2010 bound by principles and applications that contradict those believed in 1787, especially when we have not ratified the constitution as it is forced upon us today? America’s history proves that even a written constitution does not adequately protect the freedoms of a people. James Madison admits this much in Federalist Paper 49 before the ratification of the constitution:

“Will it be sufficient to mark, with precision, the boundaries of these [federal] departments, in the constitution of the government, and to trust to these parchment [constitutional] barriers against the encroaching spirit of power?…[E]XPERIENCE ASSURES US, THAT THE EFFICACY OF THE PROVISION HAS BEEN GREATLY OVERRATED; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government…The conclusion which I am warranted in drawing from these observations is, that a MERE DEMARCATION ON PARCHMENT OF THE CONSTITUTIONAL LIMITS OF THE SEVERAL DEPARTMENTS, IS NOT A SUFFICIENT GUARD AGAINST THOSE ENCROACHMENTS WHICH LEAD TO A TYRANNICAL CONCENTRATION OF ALL THE POWERS OF GOVERNMENT IN THE SAME HANDS.” (Emphasis added).

Was Madison right on or what! Madison could not be clearer: limiting the federal government by a mere piece of paper does nothing to protect freedom. What effect do words have when their intended meaning and their forming principles are not complied with? As the Federal Supreme Court repeatedly said in its earlier opinions, “Let the nature and objects of our Union be considered; let the great fundamental principles on which the fabric stands be examined.” Cohens v. Virginia, 19 U.S. 264, 423 (1821). Indeed, something more the words is necessary to protect freedom.

Unfortunately, there are some (though I cannot judge their intentions necessarily) in the US who argue that the only lawful means by which the people of the states may redress federal grievances is through the (1) election, (2) judicial or (3) amendment processes. They argue as a basis for their position that whatever the federal government passes (through Congress), executes (through the President) and upholds (through the courts) is the “Supreme Law of the Land” and that the states are thus required by the US Constitution to submit to those laws, even if it is admitted that those laws are in fact unconstitutional and that those federal powers are exercised at the expense of the retained sovereign powers of the states and the people.

Any studier of political theory knows these advocates believe that the US Constitution places the decision of “what is constitutional” into the sole and exclusive purview of the Federal Supreme Court; that this court has the power to define not only the limits and powers of Congress and the President (not to mention its own powers) but also the power to define the lines of sovereignty of the states who created the federal government by their sovereign powers; that nine unelected, President-appointed, life-term judges possess a power equal to what the ratifiers placed into the hands of at least three-fourths of the states as mandated by the US Constitution. Without getting into the details of the fallacy of this position, which creates a dangerous oligarchic power in the federal court, destroys all principles of a free federal republic, contradicts principles of natural law, ignores the intention of the ratification documents of the states, and reduces the power of state sovereignty to mere state submission, let us consider what James Madison said in the Federalist Papers relative to what ingredients are actually required and necessary in a federal constitutional republic to protect the freedom of the people (note: James Madison was one of the proponents in the constitutional convention who actually proposed that the federal courts have a negative power over state laws contrary to the constitution, which was of course rejected in the convention):

Federalist Paper 51: “TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments [of the federal government], as laid down in the Constitution? …It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: [1] by creating a will in the community independent of the majority — that is, of the society itself; [2] BY COMPREHENDING IN THE SOCIETY SO MANY SEPARATE DESCRIPTIONS OF CITIZENS AS WILL RENDER AN UNJUST COMBINATION OF A MAJORITY OF THE WHOLE VERY IMPROBABLE, IF NOT IMPRACTICABLE.

“The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. THE SECOND METHOD WILL BE EXEMPLIFIED IN THE FEDERAL REPUBLIC OF THE UNITED STATES…[T]HE STABILITY AND INDEPENDENCE OF SOME MEMBER OF THE GOVERNMENT, THE ONLY OTHER SECURITY, MUST BE PROPORTIONATELY INCREASED.” (Emphasis added)

Madison notes that the only way a minority of the people and of the states can be protected against the tyrannical actions of the majority through the federal government is that minority’s stability and independence be maintained and that minority’s stability and independence be proportionally increased with the increase of the majority’s power and influence. Thus, a mathematical equation is created: The Minority’s (e.g. the states) stability and independence increases in direct proportion to the majority’s (e.g. the federal government) attempt to circumvent the minority’s freedom. Madison continues in this line of thought:

Federalist Paper 52: “[The] federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, BUT THAT IT WILL BE, MOREOVER, WATCHED AND CONTROLLED BY THE SEVERAL COLLATERAL [STATE] LEGISLATURES…With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.” (Emphasis added)

Madison, as nationalistic-minded as he was in 1787, cannot escape the principle of states checking federal usurpations because it was so engrained into the conscience of the people and governments. Thomas Jefferson expresses the same principle of check and balance in a federal republic system: “the States should be watchful to note every material usurpation on their rights; denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary.” Thomas Jefferson and John P. Foley, ed., The Jeffersonian Cyclopedia, A Comprehensive Collection of the Views of Thomas Jefferson, (New York and London: Funk & Wagnalls Co., 1900), 133.

This application of state sovereignty was explained by James Madison in Federalist Paper 39, when he states, “[T]he [state] authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the [federal] authority, than the [federal] authority is subject to them, within its own sphere.” Nothing can be more provable in American jurisprudence: sovereignty necessarily carries with it the power to defend it. Yet, even today, after seeing the usurpations of the federal government for more than 150 years, there are still those who would deny the states their power to defend sovereignty and thus the freedom of their citizens.

This can mean only one thing: these people prefer a national system of government (as certain of our founders did and as did the Tories) over a federal system of government. That may be their choice, but did our ratifiers create a national system, whereby the states gave up their right to defend their powers? The answer is most certainly, No. The evidence expressed even by those who advocated for a national government (e.g. James Madison and Alexander Hamilton) in the Federalist Papers, not to mention the vast array of freedom documents forming our country, confirms this. Yet, constitutional (de)construction, through federal courts, supposedly has created the very form of government that our ratifiers rejected.

A decision must be made in 2010: Are states politically and legally incapable of governing themselves within their borders, or do they have the power and right to defend their sovereignty retained? Are the states subject to the tyrannical definitions and lines drawn by the federal government’s court as sole arbiter, or do they have the power to judge for themselves and defend their powers given to them by the people of that state? Are the states bound to live under a constitution that applies to them contrarily to the constitution ratified in 1787, or do they have the natural law and constitutional right to be governed by the principles of a free republic without interference from other government bodies and to perpetuate those principles for them and their posterity?

There is no neutral ground on this issue.

Those who advocate that the states MUST pass constitutional amendments to correct federal usurpations do not understand the first thing about living in freedom in a federal constitutional republic. Why should we–the non-aggressors–have to go through the arduous process of getting three-fourths of the states to correct federal abuses, when the federal government does not have the power or authority to act the way it does in the first place and are contradicting the limits we have already placed upon them? This line of thinking says, the federal government’s usurpations are valid and effective until the States pass a constitutional amendment stating otherwise. This effectively eliminates the usefulness of a written constitution, delegating only special and limited powers to a government, just as Madison explained.

How about this instead: a state can protect its own borders and powers by resisting and arresting federal tyranny, and if three-fourths of the states do not believe that state is correct in its defense of its powers, then let them pass a constitutional amendment limiting the states’ sovereignty in this regard. Giving the federal government (which our founders admitted and acknowledged would and should not comprise the vast majority of powers over the lives of the people) preference of sovereignty over the states contradicts the very structure and nature of our union in 1787, whereby the states possessed defendable concurrent power with the federal government–states who won their complete and absolute independence through a bloody and arduous seven years war, through the infinite pains and labors of millions and the lives of thousands of men, women and children. Any person or government that would have these states give up their powers and rights, when these states did not do so, commits treason against those states.

Freedom for a Change

Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of America’s foremost defenders of State sovereignty. See his website.

Copyright (c) Timothy Baldwin, 2010.

Why do we have a Constitution? How and why did it come into existence? Just what, exactly, prompted the calling of the Constitutional Convention, which gave birth to it? Most Americans believe, logically enough, that with the passing of the British from the scene it was simply time to create a new government to take the place of the old. That notion, however, ignores the facts that Americans already had a functioning government at the time of the Convention and that that government had been in effect for six years following the final British defeat at Yorktown.

No, the overthrow of the old government and the establishment of the new were prompted by an internal tumult, by domestic corruption, oppression, and chaos, all but forgotten today, that had nothing to do with the departure of the British. That crisis revolved around the printing of paper money by some of the newly freed states. As the Federal Farmer, one of the Anti-Federalists, stated in opposition to the Constitution,

Our governments have been new and unsettled; and several legislatures, by making tender, suspension, and paper money laws, have given just cause of uneasiness to creditors. By these and other causes, several orders of men in the community have been prepared, by degrees, for a change of government; and this very abuse of power in the legislatures, which, in some cases, has been charged upon the democratic part of the community, has furnished aristocratical men with those very weapons, and those very means, with which, in great measure, they are rapidly effecting their favourite object…. The conduct of several legislatures, touching paper money, and tender laws, has prepared many honest men for changes in government, which otherwise they would not have thought of…. [Emphasis added.]

It is vital, first, to see the printing of paper money for what it was — a welfare scheme and an erosion of property rights enacted by impoverished majorities with the sole intent of taking money (property) from the creditor class. It is no exaggeration, no stretch of the imagination, no revisionist or wild-eyed conspiracy theory to state that the Constitution of the United States of America came into being, more than any other reason, to crush a welfare program, to stop the poor from ganging up on the rich and, endowed with the power of democracy, stealing their money.

In their book Decision in Philadelphia: The Constitutional Convention of 1787, Christopher Collier and James Lincoln Collier state,

What concerned Madison most in “Vices” was not only that the states were flouting national regulations, but that they were treating unjustly certain minorities within their own borders…. Madison was especially troubled by the stay laws and tender laws and the paper money that so many of the plain people of the country were clamoring for. These laws, Madison believed, were “oppressing” the creditor minority. [Emphasis added.]

Edward J. Larson and Michael P. Winship stated in The Constitutional Convention,

In several state legislatures, a new breed of politicians, often from lower social backgrounds, was passing debt-relief measures, most notoriously by issuing inflationary paper money. Such legislative action, Madison believed, was an attack on the rights of creditors and amounted to the few being plundered by the many.

The story of paper money is a simple one of greed and corruption fueled by the power of unchecked democracy degenerating into oppression and turmoil. For the Framers, the paper-money crisis was the manifestation of all their fears of mob rule followed by chaos, and it was paper money, far more than anything else, that prompted them to convene the assembly that gave birth to the Constitution. Yes, there were other issues and concerns, chiefly the tendency of the states to strangle interstate trade, and the fear that 13 separate states would constantly war with each other, much like the European powers, or be weak in the face of foreign attack; but, other than the trade issue, those things were merely theoretical in nature, while paper money was all too real.

As you read of paper money, you might wonder just exactly what all the fuss was about. After all, in 21st-century America, when debt-relief measures to the detriment of creditors are this very hour in front of Congress; when battling over which legislator gets the biggest share of your paycheck for distribution to his constituents is all government seems to do; and when there’s a welfare program for virtually every ill that can be imagined by even the most creative among us, — I recently read of the California legislator who has secured funds to pay for tattoo removal because tattoos might hurt a job applicant’s chance of getting hired — just exactly what physical form state-issued money takes might not seem to be the kind of thing over which to change governments. But if the paper-money shenanigans outlined below seem rather tame to the modern American reader, that just goes to show how very far we’ve fallen from the days when the Framers had “an almost religious respect” for property rights.

Paper money and the Articles of Confederation

Paper-money schemes could not stand on their own and necessarily spawned a whole series of additional laws, each one more odious than its predecessor, to prop up the whole corrupt edifice. Property rights aside, the Framers believed that the baneful effects of all the legislative chaos, the internal turmoil, and the international ridicule and disrepute generated threatened the very existence of the nation.

So frightening was the specter of paper money that one Convention delegate said that granting the federal government the power to issue it “would be as alarming as the mark of the Beast in Revelation.” Another delegate said he would “rather reject the whole” Constitution than see the federal government granted that power.

The paper-money crisis began when debtors, usually farmers struggling to make loan payments, would turn to their state legislatures and push for the creation of paper money. That was welfare pure and simple, as the paper money had nowhere near the worth of the gold, silver, or other medium of payment specified in original loan documents, and that, of course, was exactly the idea behind the legislation. Debtors also forced the creation of such extraordinary measures as “stay laws,” which postponed or even canceled debt collection. Then there were the awful “tender laws,” and “ex post facto laws,” which actually compelled unwilling creditors to accept the newly printed paper money regardless of what the preexisting contract specified. Printing paper money was one thing, but to actually nullify preexisting contracts and force creditors to accept it in payment was simply more than the Framers could tolerate.

But it was the example of Rhode Island that most horrified the Framers. The legislature, dominated by indebted farmers, circulated paper money that creditors naturally refused to accept. The legislature then made acceptance mandatory. Many creditors at this point actually fled the state to avoid the dreaded paper. The government’s answer was simply to pass more corrupt legislation, this time allowing debtors to legally discharge the debt by depositing money with courts and posting an advertisement attesting to such in newspapers. Things got nastier still. When Rhode Island’s supreme court declared the paper-money law unconstitutional, the legislature threw the court out of office and replaced the justices.

Paper money and the Constitution

Study of Madison’s Notes of Debates in the Federal Convention of 1787 reveals a fascinating obsession on the part of the Framers with paper money. Amazingly, proposed legislative schemes, philosophies of representation, and existing political arrangements were all judged good or bad almost solely on whether they were likely to lead to or had already led to the creation of paper money. On page after page of the Notes we find that paper money is the overriding, all-important litmus test for analyzing the compositions and powers of state legislatures, the courts, and internal police; determining the rules of a quorum; and debating the proposed federal veto on state law.

Virtually every time the Framers sought to find an example of something “wicked” to be avoided, something they wished the Constitution to repress, some terrible failing of the state government or the Articles of Confederation, they turned to paper money. Mention of the rights with which we are today so obsessed, and those most commonly associated with the Framers, are conspicuous only in their absence.

1. Why is a large republic, spread over a great area, encompassing a multitude of various political interests a good thing? Because, as Madison notes in Federalist No. 10, “[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union, than a particular member of it….”

2. Who should select U.S. senators and congressmen, the people or their state legislatures? Charles Pinkney, South Carolina delegate to the Convention, favored the legislatures because “the people in South Carolina were notoriously for paper money” while the legislature had rejected the idea.

3. Elbridge Gerry, Massachusetts delegate to the Convention, likewise favored the legislatures, because “the people are for paper money when the Legislatures are against it.”

4. Should the federal government have the power to veto state laws that offend the Constitution? Here again, paper money is the litmus test. Elbridge Gerry was generally against it, but, “He had no objection to authorize a negative to paper money and similar measures.” Madison also was for the veto power, pointing to the fate of the Rhode Island judges who had refused to uphold the constitutionality of paper money laws and noting that the newly selected judges would be “willing instruments of the wicked and arbitrary plans of their masters.”

5. Every American knows of the need for “checks and balances,” though few could name paper money as one of the evils to be checked. According to Alexander Hamilton, a lack of such checks in the state governments had led to “our paper money, installment laws, et cetera.”

6. Should the federal government have the power to “interfere” with the state governments in matters of “internal police”? According to Gouverneur Morris, Pennsylvania delegate to the Convention, the internal police “ought to be infringed in many cases, as in the case of paper money and other tricks by which Citizens of other states may be affected.”

7. Setting a quorum in the House and Senate at less than a majority of members might be a good thing. George Mason, after all, “had known a paper emission prevented by that cause in Virginia.”

8. “Proper elections” were better left to the people, if divided into large districts, than by state legislatures, thought George Mason. After all, “Paper money had been issued by the latter when the former were against it.”

Restricting the states

So what did the Framers do to rectify this situation? Where is the constitutional salvation from the evil of paper money? Relief lies in Article I, Section X. It is in Section X that we find the relatively few things that state governments may not do. Many Americans do not realize that at the time the Bill of Rights was ratified, it applied only to the federal government. In other words, until after the Constitution was amended following the Civil War, the states had absolute power to engage in censorship, regulate the press, suppress free speech, or even establish a state-supported church, which, in fact, many of the states actually did. At the time of the Revolution, for example, most of the colonies had tax-supported churches; all except Rhode Island imposed legal restrictions on various sects and “penalties for dissenters, apostates, blasphemers and idolators were numerous and severe.” (Novus Ordo Seclorum, The Intellectual Origins of the Constitution, by Forrest McDonald.)

In short, for the states, the entirety of the Bill of Rights was a nonentity. While the Framers certainly could have attempted to impose bill-of-rights-type restrictions on the states, they did not. It is instructive, then, to see just what state restrictions the Framers actually did write into the Constitution.

The Constitution expressly prohibited the states from such things as continuing to act as separate nations with treaty-making powers, engaging in war, floating a navy, and establishing tariffs. But the most significant checks on state authority, and the only checks that involved the rights and liberties of citizens, were those that would no longer allow the states to “emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts….” In other words, no more paper money and no more voiding of contracts with stay laws or tender laws.

The prohibition of ex post facto laws was instituted for the same reason, for, as previously noted, most of the legislation passed to support paper money was made to retroactively affect existing contracts, a perfect example of an ex post facto law. Bills of attainder were legislative findings of guilt (no judge, jury, or trial) for various crimes, which usually resulted in forfeiture of landed estates. These bills had been unjustly employed to seize Tory properties during the Revolution; but with infringements of property rights becoming more and more common with every passing day, the Framers feared that they could be used against the creditor class at any time.

It is very likely impossible to understand the Constitution without first understanding the importance of Article I, Section X: of all the dozens upon dozens of rights that the Framers could have attempted to prohibit states from infringing, the property rights of the minority were the only ones to make the list. Remember, the federal government could not prohibit free speech, establish or handicap a religion, or regulate the press. The states, however, (again, because the Bill of Rights did not apply to them) could do all of those things. Property rights, then, were the only rights to be protected from both federal and state action.

For those who read of the Framers and their obsession with property rights and paper money and who are tempted to look with scorn on those men for having such a monomaniacal focus on something not so high, not so enlightened or elevated, a harder look at history, a more down-to-earth approach might be necessary.

The Framers saw the entire history of government for what it was: one long, sad saga in which those in power — be they the king, aristocrat, or oligarch, the many, the few, or the one — trampled the rights of those without power. Human beings being what we are, the oppression would take a multitude of forms, but the oppression of property is almost always the first and favorite of oppressions. Anti-majoritarian measures aside, the common man, the people, the majority wielded the power under the new Constitution. History, political theory, and the contemporaneous paper-money crisis all demonstrated that a government of the people would be no different from governments throughout history. It would live down to expectations, and those in power, the numerous poor, would oppress the property rights of others. The Framers wrote the Constitution, then, to safeguard against the chief defect of democratic representative government — the oppression of the wealthy minority by the poor majority.

Rick Lynch is an author living in Virginia. He is finishing a book on constitutional issues entitled They Are Vicious. Send him email.

This article originally appeared in the January 2009 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

Copyright 2009 Future of Freedom Foundation

Rob Natelson, recognized national expert on the framing and adoption of the United States Constitution, offers a lesson on the general Welfare clause of the United States Constitution. He discusses the original meaning of the words themselves, the meaning of general welfare in the preamble, the original meaning and understanding of the clause, the taxing clause, the Hamiltonian vs the Madisonian view, anti-federalist concerns, modern interpretations, court cases which have turned its meaning upside down, practical reasons for a limiting view of the clause and the Constitution as a whole, and more.

Mentioned in this Show

Federalist #41

United States v Butler

Korematsu v. United States

More from Rob Natelson:

Are Campaign Finance Laws Constitutional?

Is ObamaCare Constitutional?

Claiming Almost Everything is “Commerce”

What Is The Federal System Of Government?

Many people mistakenly equate “Federalism” with decentralization. A federal system is certainly a decentralized system but it is also much more. The defining characteristics of federalism are:

(i) Two constitutionally established, concurrent orders or levels of government, one consisting of fundamental units of governance (called “states”), the other consisting of a national government encompassing all the people who live in the states;

(ii) The sovereign people cede limited and specific powers to the national government, reserving respectively to their states the remainder of the powers they choose to delegate to government;

(iii) Each governing order or level of government is autonomous, free of the other to act within its own realm, the only exception being that acts of the national government are supreme to those of the states when those acts come into conflict in areas where both governments’ delegated authority overlap/intersect; and

(iv) The governments at each level are accountable to their respective electorates and in certain instances to each other as provided for in the constitution.

Before the term “states’ rights” became contaminated by its identification with the efforts of some states to perpetuate slavery and later racial segregation, “states’ rights” concisely described the states’ legal and political autonomy although the term always constituted a shorthand reference to states’ constitutional and political autonomy vis-à-vis the national government as opposed to natural rights, which only individuals possess.

What Was The Purpose Of The Federal System Of Government?

To protect the rights of individuals. The Founding Fathers distrusted power in the hands of any level of government, state or national. As Thomas Jefferson’s biographer Dumas Malone pointed out, Jefferson never supported states’ rights for their own sake, “but to safeguard the freedom of individuals,” which he, along with the rest of the Founding Generation believed would suffer in a consolidated nation no matter how decentralized the administration of the consolidated government happened to be.  Hence, in drafting the Kentucky Resolves for instance (see here and here), Jefferson identified the states as the primary depositories of power and the proper entities of resistance against an encroaching national government.

Although the Founding Fathers well understood that the federal form of government was no absolute bar against either state or national tyranny, they believed it to be a practical check on the national government (especially when combined with constitutional separation of powers) and at the same time a guarantee that safe havens would always exist to which people could flee from an oppressive state government. William Watkins, Jr. puts it this way: “Though some states might abuse power, Jefferson reasoned that not all would fall under the spell of tyranny.  But with a consolidated and abusive national government, all would suffer the same tyranny; there would be no islands of peace.”  (See The Kentucky and Virginia Resolutions)

How Was The Integrity Of The Federal System Of Government To Be Preserved?

Of all people, even the great Federalist consolidator and centralizer Alexander Hamilton understood the delicate balance in the basic architecture of the U.S. Constitution. According to Hamilton in Federalist # 28, it is an “axiom in our political system that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority.”

Hamilton went on to postulate that should the national government pose a danger, the states could “at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different states; and unite their common forces for the protection of their common liberty.” In other words, the primary means of defense against a grasping and encroaching national government was to be truculent state governments that took action singly and in concert to actively defy national government actions they considered to be in violation of the Constitution.

In a federal system, no government or branch of government was to be the judge of its own cause. (As John Taylor wrote much later, “a jurisdiction limited by its own will is an unlimited jurisdiction.”) The boundaries and limits of governmental authority were to be hammered out through a perpetual struggle among the separate branches of government and between the states and the national government. Watkins again succinctly states Jefferson’s and Madison’s understanding of how the boundaries of authority in a federal system were to be delineated:

“Jefferson proclaimed in the [Kentucky] resolution that ‘each party [to the federal compact] has an equal right to judge for itself, as well of infractions as of the mode and measures of redress.’ For Jefferson, the people acting through their states—the authentic organs of government—were the final arbiters of constitutional interpretation.  Jefferson feared that giving the federal government the exclusive power to interpret the Constitution through the Supreme Court would lead to arbitrary government.”

How Did The Federal System Of Government Fail?

Hamilton was correct in how the federal system of government was supposed to work but incorrect in how it actually worked out. Ironically, the cracks in federalism that appeared almost immediately after ratification of the Constitution were in large part due to the role Hamilton played as usurper in the early days of the American Republic, especially in the events surrounding the crisis of near war with France in the late 1790s. It was from these maneuverings that the hated Alien and Sedition Acts were enacted by the Congress, which led directly to the drafting of the Kentucky and Virginia Resolutions in 1798 by Thomas Jefferson and James Madison and what came to be known as the “Spirit of ’98.” The question then is how did Hamilton and his political progeny manage to overcome James Madison’s and Thomas Jefferson’s design and usurp the power of the states and abridge the rights of individuals contrary to the intention and careful design of the United States Constitution?

The American system of federalism has failed because the set of rules that established it and was meant to maintain it—the U.S. Constitution, its careful design notwithstanding—is fundamentally flawed. The Constitution failed to provide a practical mechanism to sustain and protect the autonomy of each order of government from encroachment by the other.

It is an interesting exercise to analyze why the U.S. Constitution failed in this, its most important function. (Read more. . .) However, it is not necessary to come to any definitive conclusion as to why it failed to know that is has, in fact, failed. It is sufficient to observe the states’ advanced stage of political decrepitude and legal dilapidation; the relatively low-quality of their elected and appointed officials; their incapacity to defend themselves legally, politically or physically against the national government; their fiscal dependence upon the national government; their reliance upon the national government operationally; their subservience to the national government in every respect; their low regard in the eyes of the public and the lesser affection and attention they receive from the electorate.

The Relentless Growth Of Government

Thomas Jefferson described the dynamic by which government grows and liberty recedes in a letter to Edward Carrington in 1788: “The natural progress of things is for liberty to yield and government to gain ground.” The design of the U.S. Constitution was meant to be a bulwark against this naturally corrosive process—a check against one level of government’s growth at the expense of the other to the ultimate detriment of the people—by giving one level of government a natural self-interest and the power and means to resist the expansion of its rival.

Government’s expansion at the expense of liberty is always fueled by the same poisonous admixture of human frailties: Fear, ignorance and greed. The mechanism of forward momentum that has propelled the excessive growth of government has always been the meshing of two gears: the natural inclination of politicians to gather more power unto themselves by oppressing the people and the natural inclination of people of business to maximize profits by gaining an advantage over their competitors. When profit-seeking business people work hand in glove with power-seeking politicians, both gain at the expense of the vast majority of the people. In general, government expands its power by scaring people and convincing them of the necessity of regulation, taxation and government spending to further the general welfare in the name of the public interest; while business enterprises seek to use the government’s expanding power to tax, spend and regulate to further their own ends.

The justification for government to expand its authority to tax, spend and regulate in the name of the public interest and for the “greater good” is based on a popular myth, namely that markets are everywhere and always fragile and failing and that government regulation is always benevolent, omniscient, and corrective. In fact, government regulation creates far more unintended problems that it solves. Moreover, government regulation almost always is a special-interest phenomenon driven by a combination of government’s quest for power and the quest of the firms being regulated to cartelize their industry in order to drive their competitors from the field so they can reap extraordinary profits at consumers’ expense. As Nobel Laureate George Stigler wrote in 1971, “As a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit.”

There is an irresistible urge among businesses to create cartels but unaided by government oppression to destroy competition, cartels fall prey to companies’ unilaterally abandoning the rigged rules the cartel must enforce to survive—which is why the cartel must conspire with government to enforce the cartel’s rules by the force of law and regulation, imposing heavy fines and imprisonment for “cheating” and “law breaking.”

In the specific case of the national government’s eclipsing and subjugating the state governments, the dynamics of federalism’s decline has proceeded as follows: The national government has through artifice and flaws in the Constitution expanded its realm both by grasping new powers outside the Constitution’s grant of authority to either level of government and by expanding the area of authority common to both the states and the national government. If the general rule is that each order of government is sovereign within its own realm (Tenth Amendment) and the exception to that rule is the national government is supreme (Supremacy Clause) where those realms overlap/intersect and conflict, then the political growth strategy of the national government historically has been to constantly expand the area of overlap to permit the exception to swallow the rule.

The Slow-Motion Disintegration Of The Federal System Of Government.

The first test of federalism’s ability to protect the people against an over-reaching national government came early on in the face of a threat of war with France during the late 1790s. The Alien and Sedition Acts were enacted in direct response to the fear of war.

Jefferson and Madison perceived the danger of these acts, not only their immediate oppressive nature but also their long-run corrosive effect on the federal system of government. Jefferson described the Acts as “merely an experiment on the American mind, to see how far it will bear an avowed violation of the Constitution.” In response to this experiment in tyranny, Jefferson and Madison drafted the Kentucky and Virginia Resolutions in which they laid down the “principles of ‘98” in an effort to rouse the states to check an over-reaching national government before it became un-checkable. (Read more. . .)

The threat of an abusive national government’s over reaching its delegated powers receded temporarily as the threat of war receded, the war party of Hamilton lost power to the Republican Party of Jefferson and Madison and the Alien and Sedition Acts expired. This first test of federalism and the reaction to it in the form of the Kentucky and Virginia Resolutions have been downplayed in the nation’s official history yet this incident exposed the flaws in the design of American federalism and set the stage for the next attempted encroachment of national power

This second test of federalism and the concomitant expansion of the national government occurred around the fulcrum of the War Between the States. In addition to the unplanned expansion of government that invariably accompanies war, especially civil war, Abraham Lincoln and the Republican Party also set out intentionally to greatly strengthen and expand the power and scope of the national government through what became known as the “American System of Henry Clay,” a plan to use federal subsidies and high protectionist tariffs to establish economic nationalism and give large sums of tax dollars to corporations to build “internal improvements” – railways, waterways and canals.

As Reconstruction came to an end and throughout the remainder of the 19^thcentury and into the 20^th century, primarily under Republican rule, the skids to further centralization and consolidation were greased beginning in 1877 with the Supreme Court case of Munn v. Illinois. The Munn case illustrates how expansion of national power did not always appear to be such on its face. Indeed, as Munn illustrated, the predicate for the future expansion of national power could come first by a federal court ruling expanding state authority over individuals and businesses.

In fact, the most effective expansion of national authority came through a two-step process: First, expansion of overlapping powers (in this case the power to regulate commerce) followed by the national government’s claim of exclusive authority over the previously expanded common realm through the invocation of its constitutional supremacy (Supremacy Clause) in areas where state and national power intersect and conflict. Thus were states crowded from the field and hollowed out into mere shells of the authentic organs of government they previously were.

In Munn, The Supreme Court permitted states to regulate certain businesses within their borders, including railroads. This case is commonly considered a milestone in the growth of government regulation, practically eviscerating the bar against takings under state common law or the Contract Clause of the U.S. Constitution. The Court’s ruling upheld Illinois price-control legislation proposed by the National Grange to regulate grain elevator rates, declaring that business interests (private property) used for public good be regulated by government. This decision also affected similar laws governing railroad rates. Since they too were deemed private utilities serving the public interest, the laws governing their rates were held to be constitutional as well.

Although both holdings were considerably narrowed and weakened by the decision in Wabash, St. Louis & Pacific Railroad Company v. Illinois (also known as the Wabash Case), the predicate for further expansion of national commerce power had been firmly established. In Munn, the Supreme Court decided that the Fourteenth Amendment did not bar government from imposing price controls but focused instead on establishing the principle that a private company could be regulated in the public interest. The Court held that it could, if the private company could be seen as a utility operating in the public interest.

The Demise Of The Ninth And Tenth Amendments.

Once the primary constitutional bars to government (state or national) regulation of private entities were stripped away, it remained simply to expand the national government’s authority relative to the states and then to restrict the states’ authority to subjugate them to Washington, DC. The primary mechanism employed was an infinitely elastic Commerce Clause and promiscuous use of the Necessary and Proper Clause through which the national government’s power was inflated at the expense of state prerogatives, a process that ultimately pulverized the Ninth and Tenth Amendments under the national government’s boot. Jefferson clearly perceived the beginnings of this pernicious process and vigorously objected to it in the first Kentucky Resolution of 1798:

“. . .words [such as ‘necessary and proper’] meant by the instrument [Constitution] to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument.”

The expansion of the national government’s commerce power was not without temporary obstruction and even occasional temporary reversals but it was, over the course of time, unidirectional and virtually all encompassing. Between the turn of the 20^th century and the New Deal, the Supreme Court made a series of rulings that found congressional action in violation of the Tenth Amendment.  Perhaps the most famous are the 1918 ruling striking down national child labor standards (Hammer v. Dagenhart, 246 U.S. 20), in which the Court embellished the Tenth Amendment to read that powers not “‘expressly’ delegated to the national government are reserved,” the 1922Child Labor Tax Case (259 U.S. 20), and United States v. Butler (297 U.S. 1, 1936). 

Beginning in 1937, however, the Court reversed itself on restricting the powers of Congress under the Tenth Amendment.  In cases that year, such as National Labor Relations Board v. Jones and Laughlin Steel Co. (301 U.S. 1) andSteward Machine Co. v. Davis (301 U.S. 548), the Court found the Tenth Amendment to be of limited relevance in assessing the constitutionality of congressional taxing and spending policies. 

Although given several opportunities between 1937 and 1976, the Court refused to strike down national legislation on the grounds that it encroached on powers reserved to the states under the Tenth Amendment.  See e.g., New York v. United States (326 U.S. 572,1946) and Fry v. United States (421 U.S. 542, 1975).  In reference to the Commerce Clause specifically, on only eight occasions prior to 1937 did the Court find that the Congress had exceeded its constitutional limits. The last such case (prior to 1976) was Carter v. Carter Coal Co. (298 U.S.238, 1936), which invalidated the Bituminous Coal Conservation Act of 1935.  The Court held in that case that regulation of production and labor relations lay beyond the allowable object of congressional power—regulation of interstate commerce.  The Fair Labor Standards Act was upheld in United States v. Darby (312 U.S. 100, 1941), the Court holding that Congress may by law exclude goods that do not conform to specified labor standards from interstate commerce and may use direct regulation of labor relations to achieve this objective.

The Court temporarily rediscovered renewed state autonomy under the Tenth Amendment in National League of Cities v. Usery (1976). The Court found that the Tenth Amendment necessarily requires the existence of a set of essential state powers that remains beyond the reach of congressional regulation or preemption.  However, the Court was soon to begin chipping away any new expansion of states’ autonomy under National League of Cities. During the early 1980s, federal regulation of the states was upheld in a series of cases. See Hodel v. Virginia Surface Mining, 452 U.S. 264 (1981), United Transportation Union v. Long Island RR, 455 U.S. 678 (1982), FERC v. Mississippi, 456 U.S. 742 (1982), and EEOC v. Wyoming, 460 U.S. 226 (1983).

The Court finally threw in the towel and reversed itself altogether in Garcia v. San Antonio Metropolitan Transit Authority (1985), holding that the Tenth Amendment provides the Court no basis on which to limit the Congress in the exercise of its commerce powers. The Court declined, not simply to rule against the Congress, but even to entertain the possibility that the Congress might, within the scope of its commerce powers, intrude upon the constitutional position of the states.  The Court appeared finally to abandon whatever vestige remained of its role as federal umpire between the states and the federal government by refusing to blow the judicial-review whistle to signal a congressional foul.

In 1992, the Supreme Court appeared to breath life back into the Tenth Amendment by finding instances outside federal commerce power in which federal action might violate the reserved powers of the states. For the first time in 55 years, the Court invalidated one section of a federal law for violating the Tenth Amendment.  The case in question (New York v. United States, 505 U.S. 144) challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985.  The Act established three mechanisms to entice/compel states to comply with federal statutory obligations to provide for the disposal of low-level radioactive waste.  The first two enticements were monetary incentives. The third, which was challenged in the case, required states to take title to any waste within their borders that was not disposed of prior to January 1, 1996. The Act also made each state liable for all damages directly related to the waste.  The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment.

Justice O’Connor wrote the opinion of the Court, which held that the Congress may use its spending powers to encourage the states to adopt certain regulations (i.e., by attaching conditions to the receipt of federal funds, seeSouth Dakota v. Dole, 1987) or impose its will through the commerce power (by directly pre-empting state law).  However, Congress may not directly compel states to enforce federal regulations.

In 1997, the Court went a step further in its apparent revitalization of Federalism when it ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898).  The Act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns.  Justice Scalia, writing for the majority, applied New York v. United States in holding the law violated the Tenth Amendment.  Because the act “forced participation of the State’s executive in the actual administration of a federal program,” the Court found it to be unconstitutional.

Less than a decade later, however, the Court again expanded its elastic definition of “commerce among the states” to include local cultivation and consumption of marijuana (Alberto R. Gonzales, Attorney General, et al, v. Angel McClary Raich, et al.) In the process, the Court tightly constricted the life support it had provided the Tenth Amendment and, in effect, restricted its protections exclusively to a prohibition against federal commandeering of state governments to enforce federal laws and regulations through direct edict. With the Gonzales v. Raich decision, the Court again found it impossible to declare federal laws unconstitutional for violating the Tenth Amendment because it refused to circumscribe federal authority under the Commerce Clause.

Justice Clarence Thomas disputed the Court’s further expansion of federal commerce power:

“Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”

Expounding upon what this expansive interpretation of “commerce among the several states” means for the Tenth Amendment, Thomas spotlighted the state of limbo in which the Court remains stuck on Federalism:

“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that ‘“[t]he Constitution created a Federal Government of limited powers.”’ New York v. United States, 505 U.S. 144, 155 (1992) (quoting Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)). That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of ‘Commerce among the several States.’ Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly ‘necessary and proper’ to regulating interstate commerce.”

The range of federal power is circumscribed by the boundaries established by the enumerated powers; but the enumerated powers themselves are restricted only to the extent that the definition of “commerce among the several states” is limited, which for all intents and purposes the Court appears unwilling to limit. Therefore, at the end of the first decade of the 21^st century, the limits of federal authority vis-à-vis the states has boiled down to a narrow restriction against the federal government’s commandeering or compelling the states to enforce federal statutes.

1913 Was A Very Bad Year

Concurrently with employing the Commerce Clause and Necessary and Proper Clause to fuel the expansion of the national government at the expense of the states, the national government also aggressively used its fiscal and monetary powers to aggrandize itself throughout the first half of the 20^th century. Of all the government-sanctioned cartels, the most pernicious has been the Federal Reserve System, established in 1913, which was created to facilitate the creation of a banking-industry cartel and the creation of cartel profits in that industry as well.  As Murray Rothbard wrote in A History of Money and Banking in the United States, “The financial elites of this country . . . were responsible for putting through the Federal Reserve System, as a governmentally created and sanctioned cartel device to enable the nation’s banks to inflate the money supply . . . without suffering quick retribution from depositors or note holders demanding cash.”

Additionally in 1913, the national government finally succeeded in enacting an income tax on individuals, which provided not only an unprecedented source of revenue for the national government but also evolved into a general, all-purpose engine of income and wealth redistribution, government monitoring and surveillance of individuals as well as a mechanism of direct control of individual behavior and social engineering.

Finally, the direct election of Senators, also in 1913, was perhaps the single biggest step away from federalism and the original constitutional design toward mass democracy and a consolidated national government. With the Tenth Amendment well on its way to becoming a dead constitutional letter, with an open-ended Commerce Clause in place to fuel unlimited growth of the national government’s reach, with a revenue-generating and behavior-regulating national income tax in place, and hard currency now able to be replaced by freely printed paper money at the Fed, direct election of Senators completed the necessary and sufficient conditions for a complete consolidation of political power in the hands of a unified national government.

Intergovernmentalism Replaces Federalism

After World War II, federalism was replaced by “intergovernmentalism,” an unlovely term for the unlovely transformation of the sovereign states into bureaucratic extensions of the central government. It happened this way.

The national government further expanded its control over state governments through the fiscal realm by a series of “revenue-sharing” measures, beginning with specific grants-in-aid eventually including huge national entitlement programs such as Medicaid, which entice and require state fiscal participation through direct mandates and statutory fiscal matching provisions. Along with the grant of money came federal mandates on the states, which provided the national government a lever to control and direct state behavior to comport to the desires of Washington. The ultimate fiscal hold on states developed during the Cold War through the expansion of the military-industrial complex, which thoroughly entangled the economic circumstances of the states with defense contractors and the perpetuation of the national war machine.

By 1985, with the Court’s ruling in Garcia, federalism was dead, and state sovereignty was a mere constitutional echo of days past.

Can Federalism And State Sovereignty Be Revived?

Beginning on September 11, 2001, the expansion and consolidation of the national government took another quantitative and qualitative leap forward, this time toward World Empire. As the United States approaches the end of the first decade of the 21^st century and the 220^th year of the American constitutional republic, an unrestrained, largely unlimited national government routinely ignores precious individual rights once held inviolate under the U.S. Constitution, regularly tramples on states’ prerogatives, pursues total information awareness of every detail of individuals’ lives, seeks total behavior control of American citizens and asserts the right to exert its power without the sanction of a declaration of war or legal warrant into any country against any individual anytime, anyplace in the world.

Fear, ignorance and greed, when fueled and manipulated by propaganda reduce people’s natural immune responses to oppressive and parasitic government, allowing politicians to sap their essence and abandon the principles on which their liberty is based. This process by which government grows at the expense of liberty has been the same since the English King and his Parliament oppressed American colonialists. The authors of the Declaration of Independence described the process vividly: “He Erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

So also has Washington, DC erected a multitude of federal programs and taxes, complete with huge bureaucracies and police forces, and sent hither into the states and local communities bureaucrats, revenue agents, police and military personnel to harass the people and eat out their substance. Thus has Federalism failed, state sovereignty been destroyed and liberty eclipsed.

William Watkins summarizes the architectural imperative on which the U.S. Constitution rests:  “Power can be checked only by power. The [Kentucky and Virginia] Resolves point to the states as the natural depository of power to check the national government. . .If the American people are once again to gain control of the national government, it will be through the states.”

But, it won’t be simply a matter of untying the knot or walking this cat back. It is impossible to simply retrace the steps that brought the American political system to its present perilous situation; it will require courage, steadfastness, truculence, defiance and a will of iron to stand up to Washington and stand down the power of the federal government. It will be an undertaking not in principle different from but even more daunting and difficult than the Civil Rights Movement, namely reviving America and restoring liberty by overcoming oppressive government that is acting illegally and immorally with a pointed gun under the color of law.

Dr. Lawrence A. Hunter is President of the Social Security Institute, a 501(c)(4) non-profit organization, and Senior Fellow at Americans for Prosperity and the Institute for Policy Innovation where he does economic research and writes reports on a diverse range of public policy issues.