With the 219th anniversary of the adoption of the document known as Bill of Rights only hours away, every American who has graduated from high school should be able to explain the original intent of the Amendments in ten minutes or less. Unfortunately, this is not the case. The last thing the statists want is a constitutionally educated populace. Thus, government and the education system it controls continue to distort and hide the true intent of the Amendments.

For many years the statists have been attempting to convince the people of these United States that the document known as the Bill of Rights is the source of their rights and government was granted the power to determine the extent of those rights. Fortunately, there is a quick and simple way to disprove this assertion and show the true intent of the Amendments.

When the Bill of Rights was submitted to the States for ratification it contained a preamble declaring the purpose of the proposed amendments. The preamble contained three paragraphs, but most modern editions of the Bill of Rights, especially those printed by government, only include the third paragraph. This omission is intentional because a reading of the preamble shows that the first paragraph discloses the true intent of the proposed amendments.

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its (the federal government’s) powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

The sole purpose of the proposed amendments, as stated in the preamble, was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being proposed. The amendments, if adopted, would not grant the people any rights or grant the federal government the power to determine the extent of the people’s rights; they would place additional restraints on the powers of the federal government. Each restraint is either a qualified restraint or an out right denial of power.

Based on the wording of the preamble, the amendments would place constitutional prohibitions on the powers of the federal government to prevent that government from “misconstruing or abusing its powers” concerning the rights of the people.

Another way to illustrate this point was to re-write the Amendments and insert restrictive language into each Amendment except the Tenth. This re-write is structured to preserve the original intent of the Founders as expressed in the preamble to the Bill of Rights

Article I…………………… Congress is expressly denied the power to enact any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article II…………………… Because a well regulated Militia is necessary to the security of a free State, the federal government is expressly denied the power to infringe on the right of the people to keep and bear Arms.

Article III…………………… The federal government is expressly denied the power to quarter any Soldier in any house, in time of peace, without the consent of the Owner, nor in time of war, except in a manner to be prescribed by law. (This Amendment contains an exception to the restraint and authorizes Congress to enact legislation to qualify the exception.)

Article IV…………………… The federal government is expressly denied the power to infringe on the right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures, and the federal government is expressly denied the power to issue Warrants, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article V…………………… The federal government is expressly denied the power to hold any person to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall the federal government subject any person to a prosecution for the same offence to be twice put in jeopardy of life or limb; nor shall the federal government compel any person in any criminal case to be a witness against himself, nor shall the federal government deprive any person of life, liberty, or property, without due process of law; nor shall the federal government take private property for public use, without just compensation.

Article VI…………………… In all criminal prosecutions, the federal government is expressly denied the power to negate the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; nor shall the federal government deny the right to be informed of the nature and cause of the accusation; or the right to be confronted with the witnesses against him; or the right to have compulsory process for obtaining Witnesses in his favor, or the right to have the Assistance of Counsel for his defence.

Article VII…………………… In Suits at common law, where the value in controversy shall exceed twenty dollars, the federal government is expressly denied the power to negate the right to a trial by jury, and no fact tried by a jury shall be otherwise re-examined in any federal Court, than according to the rules of the common law.

Article VIII…………………… The federal government is expressly denied the power to impose excessive bail, excessive fines, or cruel and unusual punishments.

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Article IX…………………… The enumeration in the Constitution of certain rights, shall not be construed to grant the federal government the power to deny or disparage others retained by the people.

Article X…………………… The powers not delegated to the federal government by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since each Amendment is either a qualified restraint on the exercise of power or an out right denial of power or a combination thereof, the insertion of restrictive phrases like “the federal government is expressly denied the power” is consistent with the original intent of the Amendments.

As shown by this re-write of the Bill of Rights, none of the Amendments define or limit the extent of the individual rights of the people. The Amendments do, however, define and enumerate the extent of the restraints placed on the powers of the federal government concerning the rights of the people and the powers reserved to the States.

Contrary to popular belief, the Amendments commonly known as the Bill of Rights are simply enumerated restraints on the powers of the federal government and an extension of the system of limited government established by the Constitution.

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

The debate over President Obama’s so-called healthcare plan has once again put the Constitution in the spotlight. Individuals from both sides of the debate are making some constitutional assertions that have no basis in fact. One of these is the claim that in adopting the Constitution, the States “surrendered” some of their sovereign powers to the federal government.

In reality, the several States did not surrender any powers; they delegated a portion of their powers to the federal government. Since the powers of the federal government come from a delegation of power, not a surrender of power, the States can amend or rescind their grant of power anytime they please through the amendment process.

A review of the ratification documents of the individual States shows that the principle of “delegated powers” was first and foremost in the minds of their delegates and the cornerstone of their requests for amendments to the proposed constitution.

• On September 28, 1787, the proposed constitution was transmitted by Congress to the several States for ratification.
• On February 6, 1788, Massachusetts, the sixth State to ratify the proposed constitution, was the first State to formally request amendments to the document. The first five States basically ratified the document unconditionally. Their ratification document stated, in part:

“[I]t is the opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.

First, 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.”

It is important to note that Massachusetts was requesting amendments to restrain federal power and preserve state sovereignty.

• The New Hampshire Convention—June 21, 1788.

“First That it be Explicitly declared that all Powers not expressly& particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them, Exercised.—”

• The Virginia Convention—June 27, 1788.

“First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the foederal government.”

• The New York Convention—July 26, 1788.

“That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness, that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”

• The North Carolina Convention—August 1, 1788 (does not officially ratify until November 21, 1789).

“I. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”

• The Rhode Island Convention—May 29, 1790.

“1st The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this constitution expressly delegated to the United States.”

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“This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”

• On June 8, 1789, James Madison introduced a series of proposals in the House of Representatives that would eventually become the Bill of Rights. His initial proposal for an amendment based on these proposals read:

“The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively.”

This proposal was slightly modified during the debates in Congress and became the Tenth Amendment. It was ratified by the States on December 15, 1791, including South Carolina.

The Tenth Amendment etched in stone the principle that the powers of the federal government come from a delegation of power—not a surrender of power.

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

When in doubt, don’t.  These timeless words of wisdom were passed to my wife from her Grandmother and they are now being passed along to our son.

This is a concept with many real life applications, even for those of us who are no longer eight years old.  When I build a fence around my house with a gate in the front, this says to the potential guest that he may enter my property through the gate, but not elsewhere.  Someone found crossing the fence at a different location would be considered a trespasser.  When we want to make the same point with a bit more emphasis, we might put barbed wire atop the fence.  Come in through the gate, or don’t come in.

In the world of Internet networking, this concept is known as “Default Deny”.  Individual rules are created to allow everything that is needed for the people who use the network.  The last (or first) rule in the firewall says that anything which is not allowed should be prevented.

If only our federal government could be counted on to follow rules as well as my eight year old son does, all would be good.  In order to secure our Liberty the way a homeowner might secure his home, the founders put the Tenth Amendment into the constitution to act as our fence.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people“.

Using those words, the founders said to the federal government, “When in doubt, don’t”.  The main body of the Constitution establishes the front gate by which Congress was invited to act on our behalf.  Most of the delegated powers are listed in Article I, section 8.  When the Congress establishes laws on these matters, it is acting as an invited guest.   However, when the Congress establishes laws on matters which have not been delegated to it, it is climbing over the Tenth Amendment fence, erected to secure our Liberties.  At those times, the Congress is trespassing against the states and against the people.

Unfortunately, our representatives in Congress seem less able to accept their proper limits than my eight year old.  This leaves us with a dilemma.  When Congress authorizes the executive branch to issue self-written search warrants, what do we do?  When Congress determines that smoking marijuana that was legally grown, sold and used in the state of California is a federal matter, what do we do?  When an 82 year old farmer in Worcestor, Pennsylvania becomes a federal target for growing wheat on his own farm to feed his own hens, what do we do?  Seat belt laws, speed limits, the size of our toilets and the type of our lightbulbs… the list is endless.

We have tried, repeatedly to remind them through the voting booth, “When in doubt, don’t”.  They tell us they’re listening; they heard us this time and they’re going to change, but they never do.  How long do we keep repeating the same actions and expecting different results?  If “vote the bums out” was an effective strategy, it would have worked by now.  It is time for a new strategy centered around the people and the states, the partners inside the long neglected Tenth Amendment fence.

We need to work with our neighbors and our state and local representatives to speak with one voice… Dear Uncle Sam, When you visit, please come in through the front gate and under the welcome sign.  If the baggage you are carrying doesn’t fit through that Constitutional entryway, then I and my state are sorry to inform you that you’ll just have to stay the hell out.  Oh, and if you’re not sure, then just remember “When in doubt, don’t”.

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

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

It was originally published in 2003 in the Nevada Law Journal.

Introduction:

“The most numerous objects of legislation belong to the States. Those of the National Legislature [are] but few.”
–Rufus King, at the Federal Constitutional Convention

In constitutional form, the federal government is one of enumerated powers, and all powers not enumerated are reserved exclusively to the states and the people. The federal government’s enumerated powers have been construed so broadly, however, that the modern student may be pardoned for asking if anything really has been reserved. Even forty years ago, Professor Lindsey Cowen could say “As things now stand, there may not be any powers which are ‘not delegated to the United States by the Constitution,’” and, of course, the federal government has grown a good deal since then. Over the past century, the power to regulate commerce has come to include the power to regulate agriculture, the power to tax has become the power to control inheritances, and the power to spend for the “general Welfare” has enabled the federal government to create programs to inculcate and educate, as well as for many other purposes.

The proffered legal basis for most of this expansion of federal power is the wording of the original Constitution. Subsequent amendment justifies relatively little of it. This fact, in turn, raises the oft-argued question of whether the powers granted the federal government in the original Constitution, especially as modified by the Ninth and Tenth Amendments, really encompass such subjects as agriculture, education, health care, and the like.

The drafters of the Constitution chose to enumerate the powers of the federal government but not, with a few procedural exceptions, the exclusive powers of states. However, that decision should not be understood as implying that exclusive state powers were narrow, but rather that they were vast. As the drafters explained, they had decided not to enumerate the states’ reserved powers for the same reasons they had decided not to include a bill of rights: first, the reserved powers were too extensive to enumerate; second, a discrete list would encourage the pretense that the federal government could act everywhere else.

On the other hand, if we did have an enumeration of exclusive reserved state powers, perhaps it would enable us to understand more precisely the scope of the granted powers. Such an enumeration also could shed light on basic principles of American federalism. For example, an enumeration might help us determine whether it is constitutionally true, as is sometimes claimed, that growing national economic interdependence justifies more expansive interpretation of federal powers. Put another way, an enumeration could help us determine whether the presence of externalities – spill-over effects – from one state to another creates a constitutionally defensible reason for further central control.

In point of fact, leading federalists left in the historical record some rather specific enumerations of the reserved powers of states. They offered these lists as part of the basis of the political bargain by which the Constitution was ratified. As such, these lists help us divine the actual meaning of such phrases as “general Welfare” and “Commerce . . . among the several States.”

Surprisingly, there has been almost no attention in the legal literature to the federalists’ enumeration of state powers for the benefit of the ratifying public. In this Article, I distill the essence of these enumerations for the modern reader. After doing so, I conclude that the listed items strongly suggest that a guiding principle of American federalism is a Coasean one: externalities and/or interdependence, without more, generally do not serve as constitutional justifications for further centralization.

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Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment. He is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning. He has written for some of the nation’s most prestigious academic journals and publishers. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal. He also edits the web page, The Scholarship of the Original Understanding of the Constitution, and collected and edited the material that forms the Documentary History of the Ratification of the Montana Constitution.

Copyright, Robert Natelson, Nevada Law Journal

It was published in 2008 in the Notre Dame Law Review, which allows individuals and non-profit institutions to distribute it widely (please see copyright notice on the paper for full details).

Abstract

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland.

According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term €œexpressly€ suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers.

As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to insert €œexpressly€ into the text. Today, Marshall’s point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is also almost certainly wrong.

James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. According to these Founders, Congress had only expressly delegated power.

Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase €œor to the people€ to the Tenth Amendment ensured that the Clause would be read as a declaration of popular sovereignty.

According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of €œexpressly delegated powers€ meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities.

Consistently read in combination with the Ninth Amendment’s declaration of the retained rights of the people, the Tenth Amendment was broadly understood to establish a rule of strict construction of federal power – the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

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Kurt T. Lash is the James P. Bradley Chair of Constitutional Law at Loyola Law School in Los Angeles, CA.  Since joining the Loyola Law School faculty in 1993, Professor Lash has published numerous articles on constitutional law, theory and history.  His work appears in some of the top law reviews in the United States, including Stanford Law Review, Virginia Law Review, Northwestern Law Review, and Texas Law Review.  Most recently, Oxford University Press has published Professor Lash€™s book, The Lost History of the Ninth Amendment.  In 2007, Professor Lash served as Chair of the Association of American Law Schools Section on Constitutional Law.

Copyright, Kurt T. Lash, Notre Dame Law Review

The Constitution brought into existence the most unusual government in history. It was a government whose powers were limited to those enumerated in the document itself. If the power wasn’t enumerated, the government could not exercise it. Fearful that the newly formed government might try to break free of that enumerated-powers straitjacket, the American people, through their duly authorized representatives, enacted the Bill of Rights.

The first eight amendments to the Constitution expressly prohibit the federal government from denying people fundamental rights and important procedural protections. To ensure that federal officials would not later claim that the list of such rights was exclusive, the Ninth Amendment was enacted.

Then, to ensure that powers not expressly delegated to the federal government could still be exercised by the states, the Tenth Amendment was enacted.

It reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The issue of power – and the potential for conflict of power between the federal and the state governments – was of critical importance to our forefathers. Don’t forget that our ancestors severely distrusted government power and that the last thing they wanted was to bring into existence a federal government with the same amount of power that the British government had had over the British colonists.

In delegating certain powers to the federal government, the states, with some exceptions, were free to continue exercising their sovereign powers.

Notice the difference: Under the Constitution, the federal government is a government of express enumerated powers rather than a government of general powers.

Federal versus state powers

The state governments, on the other hand, are governments of general powers, but with two exceptions.

One exception comes in the form of the Constitution’s specific restrictions on state powers. For example, the Constitution expressly prohibits the states from entering into treaties, coining money, making anything but gold and silver coin legal tender, passing bills of attainder, and enacting ex post facto laws and laws impairing the obligation of contracts.

The other exception comes in the form of powers delegated and exercised by the federal government that the federal government prohibits the states from exercising concurrently. For example, suppose the federal government exercises its delegated power to regulate commerce among the several states. It can bar the states from concurrently exercising such power even though the Constitution does not expressly bar the states from doing so.

This system of federal and state powers is known as “federalism.” By dividing power in that way, the idea was to keep the central government weak and keep political power closer to the people. Compare that to a country that has one central, national government, which is responsible for governing the entire nation.

Obviously, it is not always easy to delineate clearly the line between federal jurisdiction and state jurisdiction, but federalism has always been a core element of America’s political system. As the authors of American Jurisprudence 2nd (1979) put it, “The distinctive operation of the state and federal governments within their respective spheres is basic to a federal constitutional system, however complicated and difficult the practical accommodation to it may be.”

There’s something else important to note here: The Bill of Rights, by its own terms, applies only to the federal government, not to the state governments. For example, the First Amendment prohibits the Congress, not the state legislatures, from depriving people of freedom of religion, freedom of the press, and the right to peaceably assemble. By the same token, although it doesn’t expressly mention the federal government, the Second Amendment operates to protect the right to keep and bear arms from federal infringement but not from infringement by the states.

Therefore, when the Constitution came into existence the state governments, being governments of general powers, theoretically had the power to deprive people of freedom of speech, freedom of religion, and other such rights.

So why didn’t the states exercise such general powers? Because the concepts of fundamental rights and procedural protections were so ingrained in the hearts and minds of the citizenry, evidenced by the fact that the states had bills of rights in their own constitutions. In fact, given that state constitutions predated the Bill of Rights, the latter was actually modeled on them.

It’s important to note though that if there wasn’t an express restriction in the state constitution, there was nothing to prevent a state government from abridging fundamental rights of the people – except, of course, by electing a new legislature with the intent of having the offending law repealed.

Ultimately, after the post-Civil War adoption of the Fourteenth Amendment, the Supreme Court held that the Due Process clause of that amendment effectively incorporated the rights and guarantees in the federal Bill of Rights and applied them to the states.

Thus, before the enactment of the Fourteenth Amendment, when a state abridged a person’s rights, the person was limited to filing suit in state court seeking a declaration that the state’s action violated the state constitution. After the Supreme Court adopted the incorporation doctrine associated with the Fourteenth Amendment, a person could sue in either state or federal court seeking a declaration that the state’s action violated both the state and the federal constitutions.

Therefore, the operative effect of the Fourteenth Amendment on the Tenth Amendment is that while the states retain reserved powers under the Tenth Amendment, any exercise of those powers that abridge fundamental rights and liberties is prohibited under the Fourteenth Amendment.

The 1937 constitutional revolution

Prior to the 1930s, the concept of federalism was fairly well understood. People knew that the federal government could not exercise general powers, not even when federal officials believed it was in the best interests of the people to do so. If Congress enacted a law, it was the job of the judiciary to compare that law with the enumerated powers of the federal government in the Constitution. If the law fell outside those enumerated powers, the judiciary would find it unconstitutional.

If a state law was enacted and someone questioned its validity under the U.S. Constitution, the judiciary’s analysis would be different. Instead of looking for enumerated powers and comparing the law with them, the judiciary would look for express restrictions on state power – or federal exercise of such power – and compare the state law with them. If there was an express restriction or if the federal government had exercised the power and barred the states from concurrently exercising it, the state law would be declared unconstitutional; otherwise, it would be declared constitutional.

In the 1930s everything changed – in a revolutionary way. In fact, it is impossible to overstate the magnitude of that change. With the advent of the Great Depression, the push on the part of federal officials to break free of their enumerated-powers straitjacket with respect to government welfare and economic regulation became too powerful, even for the federal courts. The argument was that since people were suffering all over the country from an “economic emergency,” only the federal government could provide the necessary relief and, therefore, not even the Constitution should stand in the way of such an aim.

For a while, a majority of the justices on the Supreme Court held fast, correctly holding that under the Constitution an emergency does not give rise to new powers on the part of the federal government. In fact, the Court noted that it is during emergencies that people’s liberties are most in peril at the hands of their own government and, therefore, that is when they most need the protections of the Constitution. (See my 12-part series “Economic Liberty and the Constitution” [June 2002–May 2003 Freedom Daily.])

A good example involved the National Industrial Recovery Act (NIRA), which was administered by the National Recovery Administration (NRA). Symbolized by stickers displaying a “Blue Eagle,” this congressionally enacted law radically transformed the nation by bringing businesses and industries all over America under the direct control of the federal government. Anyone who resisted the law was branded a traitor to America and was ostracized, criticized, and condemned.

Ultimately the U.S. Supreme Court declared the NIRA unconstitutional, partly on the ground that under the U.S. Constitution the federal government did not have the authority to regulate intrastate enterprises.

In 1937, as a result of a shift in personnel on the Court, everything changed. The Supreme Court effectively held that from then on, in the area of economic activity the federal government would have the omnipotent power to control any economic enterprise anywhere in the nation.

Thus, without even the semblance of a constitutional amendment, the federal government effectively became a government of general powers with respect to welfare programs and regulation of economic activity. The federal government’s New Deal power became so extensive that its regulation of a farmer who did nothing more than grow wheat on his own farm for his own consumption was upheld by the Court in the famous case of Wickard v. Filburn.

The same type of thing occurred with respect to state legislation. Prior to the late 1930s, the Supreme Court was holding that state legislation that regulated economic activity violated the Due Process clause of the Fourteenth Amendment.

A good example involved state minimum-wage laws. Holding that a voluntary contract between an employer and employee was an essential aspect of human liberty, the Court had previously held that state laws that took away such liberty were a violation of “substantive due process.”

After 1937, however, the Court’s protection of economic liberty from state infringement became a thing of the past, again as a result of the ideological realignment on the Court. As long as it was strictly economic activity that was at issue (as opposed to, say, freedom of speech), the post-1937 Court effectively held that the states could exercise whatever powers they wanted.

Today there is hardly any part of people’s economic lives that is not subject to control and regulation by government, both federal and state. When asked to cite the constitutional justification for such federal power, federal officials inevitably cite the “general welfare” clause of the Constitution, ignoring that, by setting up a government of enumerated powers, the last thing the Framers intended was to set up a federal government with such general powers over the citizenry.

By the same token, the state governments are free to regulate the most minute aspects of people’s economic activities. The powers are upheld under the traditional “police powers” of the states. The federal judiciary simply ignores the clause in the Fourteenth Amendment that expressly prohibits a state from depriving a person of life, liberty, or property without due process of law.

While the purpose of the Constitution was to call the federal government into existence, its simultaneous aim, along with that of the Bill of Rights, was to protect the American people from an elected despotism.

To accomplish such dual purposes – the establishment of a national government and the protection of liberty – our forefathers integrated a complex system of enumerated powers, guaranteed rights and freedoms, remainder powers, separation of powers, and federalism.

As our forefathers understood so well, the greatest threat to people’s freedom and well-being lies with their own government, and express constitutional restrictions on the exercise of government power are necessary to protect the fundamental rights and liberties of the people.

Jacob Hornberger [send him mail] is founder and president of The Future of Freedom Foundation.

Copyright © Future of Freedom Foundation

We are working to overcome a hundred years of indoctrination and increased dependency. The Founders would be appalled that, almost 221 years since our Constitution was written, we are now having to re-explain what a Republic is and how it works.

Federalism is the great lost concept.

The Tenth Amendment specifically states that any powers not given to the federal government are reserved by the States and the people. End of story. What we have not given D.C. is still ours.

In recent history, Congress has justified entirely ignoring the Tenth Amendment by citing its “implied powers.” The problem is that the “implied powers” are only those powers used by Congress in pursuance of their delegated powers.

It is possible to streamline operations and return to the states the powers they once held. Dr. Paul is not in favor of immediately abolishing programs like Medicare, Medicaid, and Social Security because, while these programs are unconstitutional and ultimately harmful, too many Americans have been made dependent on them for those programs to be immediately ended.

Dr. Paul’s transition plan would cut our overseas spending by several billion dollars and use that money to protect the domestic programs on which many depend, at the same time allowing young people to opt-out of Social Security, and ending the requirement that they pay for Medicare and Medicaid out of their paychecks.

Imagine a return to federalism. What works in one state could be adopted by another. What doesn’t work could be avoided. Currently, we have a “one-size-fits-all”-style of governance that forces all states to endure bad policies. If California wants certain energy standards, then they should be able to pass them and see what happens, not enact those standards on a national level and force every other state to adopt the same.

It’s high-time that more people understood not just what the 10th says, but why – and how its restoration will be a huge step in the advancement of your liberty.

Read more here