Tennessee Governor Bill Haslam’s recent statement to the news media about education is making waves among Tennessee constitutionalists.  He said:

“Obama administration’s efforts on education, by and large, are right on target. The things they’re putting influence on and emphasizing are on target.  Secretary of Education Arne Duncan, we’ve probably averaged calls once a week since I’ve been in office to (talk about) things I’m working on and how they might help.”

Ay yi yi, where to start?  When taking the oath of office, Governor Haslam swore to support the Constitution of the United States.  So let’s compare his statement with what the U.S. Constitution says about education.

The U.S. Constitution states that the role of the federal government in education is … um … well … oops, there’s absolutely nothing in the Constitution about education.  Zip.  Zilch.  Nada.

(If you want to verify this for yourself, go to the full text of the Constitution online, and press Ctrl + F to open your browser’s word search feature.  Search for the words like school, education, teaching, etc. in the full text of the Constitution.  You won’t find them, because they’re not there.)

Hm, so then why is Gov. Haslam saying that Obama is right on target with his education efforts?  According to the Constitution, President Obama shouldn’t be creating any education policies, agendas or efforts.  The Constitution gives the federal government no role in education whatsoever.  Because education is not an enumerated power delegated to the federal government by the U.S. Constitution, it is clearly a power left to state and local governments, or to individuals, per the Tenth Amendment which states:

“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.”

If Gov. Haslam is serious about his oath to support the U.S. Constitution, he cannot support any educational initiatives coming out of Washington DC.  According to the Constitution, the educational buck stops with the state and local governments, and most importantly, with parents.

Let’s look at the next part of Gov. Haslam’s statement.  Gov. Haslam says that he is talking to the U.S. Secretary of Education on the phone approximately once a week.  Certainly it is wise for a governor to seek outside counsel on the varied responsibilities that go with the governor’s office.  This is no less true for education, as constitutionally the state government does have a role to play in education.  But his choice of counsel here is troubling.

As education is not an enumerated power delegated to the federal government by the U.S. Constitution, the Department of Education is also unconstitutional.  This includes the position of Secretary of Education.  After all, if the federal government has no role in education, then what need is there for someone to advise the President on education?  Yet Gov. Haslam has chosen to call the unconstitutional head of an unconstitutional federal department for this counsel on a weekly basis.

Our Founders recognized that one-size-fits-all government is really one-size-fits-none government.  This is no more true than in the world of education.  Tennessee’s students have distinct and unique needs from students in other states.  Even individual children attending the same schools often have vastly different needs. 

How does Gov. Haslam violating the U.S. Constitution by going to the Obama administration for one-size-fits-none national education policies from Washington DC that sacrifice Tennessee’s constitutionally guaranteed powers to control its own educational system benefit Tennessee children?  The answer – it doesn’t.

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

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

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.

On Sunday, Oct. 3, the Lexington Herald-Leader ran an editorial outlining why requiring health insurance makes sense.

Following is a response written by Kentucky Tenth Amendment Center coordinator, Mike Maharrey. As of today, the Herald has not responded to the request to run this piece. We’ll let you know if that changes.

*******

Get the New Book Today!

In its Sunday, Oct. 3, editorial, the Lexington Herald Leader went to great lengths to explain why requiring every U.S. citizen to carry health insurance makes sense. But in answering one question, the Herald Leader failed to consider the first and most basic question: does the federal government have the constitutional authority to require every American to purchase health insurance?

It clearly does not.

The 10th Amendment states:

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.

Unless the Herald Leader editorial board can point to the specific powers granted to the general government in the Constitution, any health care solutions should rightly come through the states.

Proponents of nationalized health care mangle two Constitutional provisions to justify federal control of the health care system. Both arguments exhibit a misunderstanding of the framers’ intent.

Progressives argue that the power to regulate interstate commerce grants Congress sweeping authority to regulate virtually everything, including health care. This represents a gross misunderstanding of what the framers meant by interstate commerce and the reason that they included such power in the Constitution.

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

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

In fact, the word commerce, as used by the framers, only referred to trade, not manufacturing or agriculture, much less services such as health care.

Progressives also use the taxing authority granted Congress in Article 1 Sec. 8 to argue that the federal government has the power to regulate health care.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The Constitution then proceeds to list 18 specific things to which federal taxing authority applies. Proponents of wide ranging federal power point to the words “general welfare”, arguing Congress has the power to levy taxes for any purpose that generally benefits the nation. But again, the writings of the framers do not support this view. Alexander Hamilton states in Federalist 83 that listing specific applications of  taxing power would be redundant if the authority implied unlimited powers.

“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.”

Madison addressed the meaning of the words “general welfare”.

“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

But progressives will argue that the courts have expanded these constitutional powers beyond their original meaning, and the federal government does indeed possess the power to mandate health insurance.

Thomas Jefferson made it clear in the Kentucky Resolutions of 1798 that the federal government itself was not the only party with the right to determine what is or isn’t constitutional. The states also possess that right.

“…the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

And Madison argued that state governments have a duty to “interpose” for the people when the federal government oversteps its constitutional authority.

The founders understood the dangers of expansive centralized power. George Washington said, “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”

They created a system designed to keep that power in check. They granted limited, enumerated powers to the federal government and left everything else to the states. The dangers of expansive power held in the hands of a few remains no less nefarious with the passage of time.

The Herald Leader argues that because requiring all citizens to carry health insurance is a good idea and would benefit the nation, federal power should make this happen. But good intentions do not justify ignoring the plain meaning of the Constitution. Pragmatism should never trump principles. And the Herald editorial board would be wise to remember that in 1798, the federal government thought it was a good idea, and beneficial to the nation, to arrest dissenting newspaper editors under the Sedition Act.

Quote of the Day: “All substances are poisons: there is none which is not a poison. The right dose differentiates a poison and a remedy.” — Paracelsus (1493-1541)

The baseball pitcher, Roger Clemens, is in the news. He has been charged with the supposed crime of lying to the politicians in Congress about his use of steroids.

* How should we think about this?
* What are the Constitutional issues involved?

To answer these questions we offer you some imaginary testimony — things Roger Clemens could have said to Congress, instead of what he did say.

* You’ve heard of people “pleading the 5th” — invoking the 5th Amendment’s protection against self incrimination, but . . .
* James Wilson argues that Clemens should have “plead the 10th” — invoking the 10th Amendment’s limitation of federal power.
* You’ll see why when you read the imaginary testimony below.

An earlier version of this was published on Thursday, January 10, 2008, when Clemens was first called to testify before Congress. This slightly edited version makes points that are just as relevant now.

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Has anyone ever refused to answer a question from a federal inquisitor on Tenth Amendment grounds? I don’t know, but I’d love to hear it from Roger Clemens when he testifies at a House Oversight and Government Reform Committee next month:

“Mr. Chairman, I have read the Constitution and it does not grant you authority to hold a hearing on steroid use. Therefore, I will exercise my rights as an American citizen under the Tenth Amendment, and my natural rights as a human being, by refusing to answer your questions.

“But let me clarify one thing: I do see under Article I, Section 8 of the Constitution that Congress has the authority to regulate commerce among the states and with foreign nations. It’s possible that this includes anything that relates to the selling of goods across state lines. I will therefore affirm that . . .

“I do not know how or where steroids are produced or distributed, and even if I may have known someone who sold steroids, I never saw him or her transport them across state lines. Therefore . . .

“To the extent that a Congressional hearing on steroids might conceivably be Constitutionally legitimate, because the steroids may have been produced in one state and sold in another, I do not have any information to help you.

“And to the extent that this hearing is illegitimate because there is no federal power to regulate such substances, I refuse to help you, and instead suggest that you obey the Constitutional limits on your power.

“My non-cooperation does not mean that I endorse performance-enhancing drugs in baseball or anywhere else. Major League Baseball is a private organization, and has the right to ban steroid use, and suspend or fine those who disobey. I can see the merit in this. Young men shouldn’t have to choose between a huge paycheck today and poor health tomorrow. So . . .

“I agree with Major League Baseball’s decision to ban steroids, but your help isn’t needed. Tens of billions of dollars have been squandered on waste, fraud, and abuse in Iraq, yet you insist on holding a hearing on a problem that the private sector is taking care of by itself.

“The Constitution you have sworn to obey gives Congress few and specific powers. Prohibiting individual drug use is not among them. Such things are clearly left to the states and to “the people,” as the Tenth Amendment says.

“If steroid possession or use should be illegal, the states should have laws and enforce them. But better yet, if drugs are so bad, the private sector could provide drugs tests, and indeed much of the private sector, including baseball, already does this. We do not need federal police and federal prisons warehousing thousands of non-violent drug dealers and drug users. The whole War on Drugs, of which the War on Steroids is a part, is a Constitutional travesty.

“I will not defend steroid-dealers, or any other kind of drug-dealer, but if they are bad, you members of this Committee are much worse. At least steroid-dealers serve willing customers, whereas you use threats of violence against the unwilling, as you did when you forced me to appear before you today.

“The federal republic was formed to provide an internal free-trade zone and a common foreign policy for the states. The federal government has the power to arrest and try people in only a few narrow areas, such as treason and counterfeiting. Steroid use may be dangerous. Steroid use may possibly be immoral. But steroid use is none of your business.

“I do not recognize the legitimacy of this hearing. I will now leave.”

The Downsize DC Foundation is a non-profit organization organized as a 501(c)(3) which means that contributions are tax-deductible to those who itemize. The Downsize DC Foundation has a public education mission. Specifically, we seek to demonstrate that small government — Downsizing DC — leads to Human Progress.

The following is a letter from Tennessee to the other 49 State Legislatures

We send greetings from the Tennessee General Assembly.  On June 23, 2009, House Joint Resolution 108, the State Sovereignty Resolution, was signed by Governor Phil Bredesen.  The Resolution created a committee which has as its charge to:

• Communicate the resolution to the legislatures of the several states,
• Assure them that this State continues in the same esteem of their friendship,
• Call for a joint working group between the states to enumerate the abuses of authority by the federal government, and
• Seek repeal of the assumption of powers and the imposed mandates.

It is for those purposes that this letter addresses your honorable body.

In 1776, our founding fathers declared our freedom in the magnificent Declaration of Independence; our guide to governance.  They established a nation of free and independent states.  Declaring that the purpose of our political system is to secure for its citizens’ their natural rights.  The Constitution authorizes the national government to carry out seventeen enumerated powers in Article 1, Section 8 and the powers of several of the ensuing amendments.

At the time of the Constitutional ratification process James Madison drafted the “Virginia Plan” to give Congress general legislative authority and to empower the national judiciary to hear any case that might cause friction among the states, to give the congress a veto over state laws, to empower the national government to use the military against the states, and to eliminate the states’ accustomed role in selecting members of Congress.  Each one of these proposals was soundly defeated.  In fact, Madison made many more attempts to authorize a national veto over state laws, and these were repeatedly defeated as well.

There are clear limits to the power of the federal government and clear realms of power for the states.  However, the simple and clear expression of purpose, to secure our natural rights, has evolved into the modern expectation that the national government has an obligation to ensure our life, to create our liberty, and fund our pursuit of happiness.

The national government has become a complex system of programs whose purposes lie outside of the responsibilities of the enumerated powers and of securing our natural rights; programs that benefit some while others must pay.

Today, the federal government seeks to control the salaries of those employed by private business, to change the provisions of private of contracts, to nationalize banks, insurers and auto manufacturers, and to dictate to every person in the land what his or her medical choices will be.

Forcing property from employers to provide healthcare, legislating what individuals are and are not entitled to, and using the labor of some so that others can receive money that they did not earn goes far beyond securing natural rights, and the enumerated powers in the Constitution.

The role of our American government has been blurred, bent, and breached. The rights endowed to us by our creator must be restored.

To be sure, the People created the federal government to be their agent for certain enumerated purposes only.  The Constitutional ratifying structure was created so it would be clear that it was the People, and not the States, that were doing the ratifying.

The Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government, and also that which is absolutely necessary to advancing those powers specifically enumerated in the Constitution of the United States.  The rest is to be handled by the state governments, or locally, by the people themselves.

The Constitution does not include a congressional power to override state laws.  It does not give the judicial branch unlimited jurisdiction over all matters.  It does not provide Congress with the power to legislate over everything. This is verified by the simple fact that attempts to make these principles part of the Constitution were soundly rejected by its signers.

With this in mind, any federal attempt to legislate beyond the Constitutional limits of Congress’ authority is a usurpation of state sovereignty – and unconstitutional.

Governments and political leaders are best held accountable to the will of the people when government is local. The people of a state know what is best for them; authorities, potentially thousands of miles away, governing their lives is opposed to the very notion of freedom.

We invite your state to join with us to form a joint working group between the states to enumerate the abuses of authority by the federal government and to seek repeal of the assumption of powers and the imposed mandates.

Susan Lynn [send her email] is a member of the Tennessee General Assembly; serving on the Commerce Committee and Chairman of the Government Operations committee. She holds a BS in economics and a minor in history. She is the Chairman of the American Legislative Exchange Council’s Commerce Task Force.  Visit her blog at http://susan-lynn.blogspot.com

American government under the Constitution was supposedly meant to work as follows: Congress, staying within delegated powers and the Bill of Rights, passes laws; the president executes the laws; and the courts sort out ensuing wrangles. This plan ran aground rather early—the 1798 Alien and Sedition Acts, for example—which raises at least two possibilities: 1) The Federalist movement systematically misrepresented its project or 2) the framers’ well-meant “design” fell short of their goals. Figuring this out is difficult, with original sin, human nature, foreign complications, and more tangling up the causal chain.

Even so, the Constitution—read anywhere near its apparent intent—might be worth hanging onto; but how can we get such a reading? Enter a new crop of “conservative” legalists to offer us one under the rubric of “originalism.”

For this crop of presidentialists, which includes John C. Yoo, Roger J. Delahunty, David Addington, Jay S. Bybee, and Attorney General Alberto Gonzales, originalism centers on the Unitary Executive Theory (UET)—a bizarre doctrine of presidential infallibility allegedly prefigured by Alexander Hamilton. Under the UET, America ’s president is utterly sovereign in his sphere and sole judge of his own powers.

The merest glance at America ’s founding suggests that no one really wanted full-bore elective despotism. Nonetheless, American presidentialists apparently find just that in the terms “war powers” and “commander-in-chief,” and in presidential dominance of foreign affairs. Yet their forebear Hamilton conceded that in war the president has “nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy” (Federalist 69).

Presidentialists take John Marshall’s comment, in Congress, that the president is our “sole organ of communication” with other nations as entailing lots of power. And always, presidents assert powers and store up precedents. Presidentialists turn presidential duties, chores, and everyday practices into powers, and strong figures have built the office. In the Mexican War (1846–48), President James Polk established the practical precedent of maneuvering Congress into war. But it was Abraham Lincoln, above all, who asserted immeasurable war powers belonging (mostly) to the president, by combining the commander-in-chief clause with the president’s job of enforcing the laws. Of this, legal historian Raoul Berger writes in Executive Privilege: “[W]hen nothing is added to nothing the sum remains nothing.” But success succeeds, and later presidents— Richard Nixon and George W. Bush among them—have eagerly wrapped themselves in Lincoln ’s mantle of effectively suspending the Constitution to save the country.

After Lincoln, presidential war powers rested up until 1898, when President William McKinley wielded them overseas. (McKinley issued a virtual ultimatum to Spain over Cuba a month before Congress declared war.) Theodore Roosevelt thought he could do anything not prohibited, at home and abroad, thereby neatly reversing the premise on which the Constitution was sold. Woodrow Wilson, too, had large views, but in 1917–1918 amiably shared with Congress the power of treading liberty under foot (conscription, for example), albeit with no new doctrines, merely existing bad ones.

Worse luck, in United States v. Curtiss-Wright Export Co. (1936), conservative Supreme Court Justice George Sutherland fancied that during our revolution, George III’s prerogative powers somehow lighted on the union, hovering, extra-constitutionally, above successive Congresses, descending finally on the presidency. Berger deconstructed Curtiss-Wright, underscoring the break with England and the resulting institutional discontinuity. Sutherland’s opinion stands, approvingly cited by UE theorists.

As Berger notes, Sutherland championed “a theory of inherent presidential power over foreign relations.” Berger quotes Louis Henkin, who adds that Sutherland’s assertion “carves a broad exception in the historic conception . . . never questioned and explicitly reaffirmed in the Tenth Amendment, that the federal government is one of enumerated powers only.”

Presidential power made great strides under Franklin Roosevelt, before and during World War II. FDR’s domestic emergencies and his wartime operations added much to the office. The Cold War extended these power-accumulations into an indefinite and interesting future.

The Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), during the Korean War, reflected existing realities. Briefly, President Harry Truman, citing war powers, seized the steel industry to end a strike. People across the political spectrum, from organized labor to Republican Senator Robert Taft, denounced the action. The Supreme Court dodged the issue, holding that presidential powers did not go quite as far as Truman thought.

Bottomless Well of Power

Presidentialists take “The executive power shall be vested” (Article II) for a bottomless well. They see the specific duties mentioned as additional grants of power open to further (perhaps tortured) interpretation. They find further “inherent powers” arising from international law and Marshall’s sole organhood, and read the oath—“faithfully execute the office” and “preserve, protect, and defend the Constitution”—as allowing the president to violate laws in defense of the Constitution. Yet the charge that the president “take care that the laws be faithfully executed”(Article II, Section 3) seems to prohibit such maneuvers, although presidents have bent the words to their purposes, as when Lincoln “combined” them with the commander-in-chief provision.

Presidential lawyers aggregate or separate clauses to widen power. Political scientist Richard M. Pious writes in American Presidency that presidential lawyers, construing congressional powers strictly, view “all remaining functions, powers, and duties [as] exercised by the president under doctrines of inherent powers, resulting powers, sovereign powers, and inclusions”—along with emergency and national-security powers. Finally, presidents—as a branch of government—assert a right to interpret the Constitution. Pious shows minimal respect for these notions, commenting that recent, barely elected presidents have felt a need to exploit their “legal” opportunities.

From 1947 on, anticommunist crusading fostered right-wing presidentialism. Meanwhile, on other issues the Supreme Court provoked a reaction toward strict construction. Since that was quite incompatible with Cold War policies, something had to give; when it did, right-wing presidentialists hijacked strict construction, reinventing it as absolutist originalism. Midway through this journey, Richard Nixon’s cries of “national security”—to becloud the Watergate affair—rang like a fire bell in the day.

In his online paper “Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency,” political scientist Christopher S. Kelley writes that, frustrated by ongoing congressional “aggression” against executive power—the War Powers Act of 1973 and congressional “interference” with federal bureaucracies—lawyers in the Justice Department’s Office of Legal Counsel cobbled UE theory together in the 1980s. During war—as everyone “knows”—the feds may freeze the Bill of Rights, provided they thaw it out later. What seems new in UE theory is the assertion that the president is sole judge of his powers, with Congress and courts excluded from inquiring into executive undertakings. (Nixon claimed to be sole judge of executive privilege.) This would seem a recipe for tyranny.

UE theorists speak of constitutional text, structure, and history; but their postmodern textual maneuvers, their homemade structures, and their lawyer’s history live on the edge of sudden implosion. In a 2003 paper, “Judicial Review and the War on Terrorism,” John Yoo, who had worked in the Bush 43 Office of Legal Counsel, asserted that while the judicial process exists for issues involving federalism, none exists for issues arising from war. He thereby nodded toward UE theorists’ oft-professed belief in states’ rights while separating all such “domestic” matters from important presidential activities. Yoo praised “the war powers system we have today in which the President initiates war, Congress funds it, and the courts remain aloof.” Further, the president may designate citizens as enemies, with no further proof or process needed.

Elsewhere, in “The President’s Constitutional Authority to Conduct Military Operations against Terrorist Organizations and the Nations that Harbor or Support Them,” Yoo and Roger Delahunty examine Article II of the Constitution where they see the mere words “the executive power shall be vested in a President”—the high-toned “Vesting Clause”—as unveiling a mighty fortress: “The executive power” (my emphasis). The authors assign the president “all of the executive power” and “full control“ of the military, adducing his power to “repel sudden attacks,” commending his “speed and energy.” Predictably, they hold that Congress has only powers “herein granted” and “enumerated,” while the president has “all other unenumerated powers.” Backed by “historical practice” and “precedent,” “the President alone” decides war and peace. This is textualism?

The shades of Wilson, FDR, and Truman must be smiling. Few non-White House supremacists would read texts so liberally. A whole generation of conservative constitutionalists now surpasses Earl Warren in creative writing. Some conservatives foment empire, militarism, surveillance, and presidential hubris through their own juridical and judicial activism.

Such are the raw materials of UET, but there are a few more points of interest.

Unenumerated Powers Don’t Exist

1. Presidents reach for “all other unenumerated powers”; but by a well-known canon of construction, powers not enumerated are not “granted” and do not exist. The claim assumes the very thing to be proven. In Executive Privilege, Berger writes that, “lacking an ‘enumerated’ power, action is illegal” and observes that “faithfully executed” implies presidential accountability to Congress. Further, “executive privilege” (withholding information) asserts a power the King had already lost. He adds that “the Framers vested many prerogatives of the Crown in Congress and denied them to the President.”Berger remarks on the “meager scope” of the presidency’s projected powers: “The words ‘executive power’ were thus no more than a label designed to differentiate presidential from legislative functions, and to describe the powers thereafter conferred and enumerated. To derive additional authority from this descriptive label is to pervert the design of the Framers. . . .” Further: “Madison and [James] Wilson stated that the rights of ‘war and peace,’ enjoyed by the King, were not included in the ‘executive powers.’ Patently, the Framers were determined to cut all roots of the executive power in the royal prerogative.” Absent royal prerogative, the U.S. president would seem to be constitutionally impotent as far as finding and beginning his own wars goes. Practical politics made the office what it is today. In An Inquiry into the Principles and Policy of the Government of the United States (1814), John Taylor of Caroline, a serious strict constructionist, characterized the presidency as driving us toward “force and fraud” and “monarchy, revolution, and an iron government.” Election was an insufficient guard; for this reason the states put their executives under severe restrictions.
2. Presidential lawyers dig out generalities about emergencies from Hamilton ’s Federalist essays but little on who holds the emergency powers. Is it Congress? As an executive officer under George Washington, Hamilton “discovered” what prerogative powers he could, and presidentialists get more mileage from this Hamilton. Given two Hamiltons, his arguments are somewhat suspect. (On prerogative powers in the Constitution, present or absent, see Forrest McDonald’s Novus Ordo Seclorum: The Intellectual Origins of the Constitution.)
   Precedent Yields No Right
3. UE theorists dwell on text, practice, and precedent. But whether successful usurpations—some large, some microscopic—amend the Constitution is not proven. Presidents have gotten away with things. As Berger points out, presidential stonewalling, which Congress has resisted for two centuries, yields no “right” of executive privilege. Yet much rests on the larger implications of executive privilege where successfully asserted. In Construction Construed and Constitutions Vindicated (1820), Taylor noted that the Stuarts collected precedents “because, successive encroachments terminate in conquest.” Moreover: “precedents, both good and bad, ought to have weight. . . . But discrimination is as applicable to precedents, as to any other species of evidence . . . [and] no improvement in civil government has ever been made, or can be preserved, but by a subversion of precedents, until a form is discovered incapable of corruption.”
4. UE theorists make much of the president’s job of repelling invasions of American soil. That this seldom happens is, for them, beside the point. Two much-mooted cases—Pearl Harbor and 9/11—drew forth no repelling. In 1846 President Polk was not repelling but was instead provoking. Nor was the Confederate attack on Fort Sumter, after months of talk, sudden, unexpected, or repelled. Given time, advocates might find some repelling, and so what? If the president failed to repel, defenders would still defend. Where is the mighty grant of “executive power”? Presidentialists hope to convince us that should a president ever defend American soil, he would be “making war,” thereby proving—apparently—that he may make war anywhere, anytime, at will. In “Emergency Powers and the Militia Acts,” legal scholar Stephen I. Vladeck does not concede a presidential power of repelling. Instead, such actions have rested on the Militia Acts of 1792, 1795, and 1807, and their successors, that is, on delegation by Congress. This greatly reduces what presidents can reasonably obtain from repelling. Indeed, they just break even with the states, which may “engage in war” when actually invaded.
5. For UE theory, “separation of powers” works overtime, albeit rather cynically. Berger writes: “the separation of powers does not create or grant power; it only protects powers conferred by the Constitution. . . . [T]o argue from the bare fact of a tripartite system of government, without preliminary inquiry into the scope of each of the three powers, is like invoking the magic of numerology.”In any case, classic separation took “checks and balances” rather seriously. But if the president has his own sovereign sphere, how is he checked—or balanced.This brings us to John Taylor’s attack on “spherical sovereignty” in Construction Construed. (All emphasis has been added.) In McCulloch v. Maryland (1819), Chief Justice John Marshall sustained the supremacy of Congress in its sphere of action. Taylor agreed that “‘sphere’ conveys an idea of something limited,” but wondered “how this word . . . can be converted into a substantive uncircumscribed, by the help of the adjective ‘sovereign.’” He continues: “If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people. . . .”Now Taylor is not objecting to spheres, but to sovereignty anywhere, since American principles demand actual delegation by real principals to real (and mere) agents. No one has “inherent” powers.Taylor continues: “There is no phrase in the constitution which even insinuates, that the actual divisions of power should be altered or impaired by incidental or implied powers.” Further: “Individual spheres or departments are easily persuaded, like Kings, that a subordination to themselves would be better for a nation, than the occasional collisions produced by a division and limitation of power.” And here was the danger: “A jurisdiction, limited by its own will, is an unlimited jurisdiction.”Taylor thought “occasional collisions” better than sovereign institutions. Rather than making Congress, executive, or court supreme in some realm, the Constitution created “co-ordinate political departments, intended as checks upon each other, only invested with defined and limited powers, and subjected to the sovereignty . . . of the people. . . . ”The Court’s new-fangled “spherical sovereignty” overthrew the division of powers: “A supreme power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions.” In America we “have preferred checks and collisions, to a dictatorship of one department. . . .” Under “the concurrent power of taxation,” Congress and the states “may each pass a law, both of which may be constitutional, and yet these laws may clash with, or impede each other. . . . For this clashing the constitution makes no provision.”

   According to Taylor , the Court was unearthing prerogative powers for Congress, including one to “remove all obstacles to its action.” Marshall sought “to unite an extension of power with an apparent adherence to the words of the constitution.” Under this dodge, “it was necessary to hook every implied, to some delegated power. . . .” This is still the practice of a continental state that micromanages the life-world under color of regulating commerce and passes worldwide military empire off as “defense.”

   On Taylor ’s reading, no branch derives sovereign powers from idealized separateness. Powers, where they exist, were delegated by living Americans, not by some cloud-borne eighteenth-century paragraphs “mediating” sovereignty to federal departments.

6. UET’s “flexible system for going to war” (Yoo’s words) seems better fitted for finding and having wars than for actual defense of American soil. Here, where sovereignty and war powers conjure and conspire, UE theorists build on Marshall ’s gutting of enumerated powers and Sutherland’s “inherent” prerogatives; but Taylor whipped them before they were born, even on war powers:
   

   . . . [T]he case of war is specially provided for by the federal constitution, because the federal government, as having no sovereignty, could not other wise have declared it. . . . As the powers of making war and peace were necessary, it became necessary also to provide for them, not as emanations from the principle of a sovereignty in governments, but as delegated powers.. .. No powers in relation to war are derived from . . . sovereignty in governments under our system; and none can be justly inferred from the conclusions of the writers upon the laws of nations. . . .”[Emphasis supplied.]

   Presidential “signing statements,” grounded in UET, proclaim a departmental “reading” of what the president is signing into “law.” Unwilling to veto, President Bush says he will enforce the law (or not) as he sees fit. The attempt came before the name. In President: The Office and Powers, constitutional scholar Edward S. Corwin wrote of its having been undertaken in 1946–1947: “For a court to vary its interpretation of an act of Congress in deference to something said by the President at the time of signing would be . . . to endow him with a legislative power not shared by Congress.”

   Signing statements aim at influencing gullible jurists and, ultimately, at excluding the courts from even their normally feckless protection of liberty during alleged wars. (On this, see Richard E. Eliel’s “Freedom of Speech,” American Political Science Review, November 1924.)

Sovereignty, Unknown Powers, Strict Construction

If we forsake “originalism,” as we probably should, we need not give up strict construction. Any serious perspective must begin with contemporary comparisons of the Constitution as advertised with the Constitution as put into practice. Taylor, Spencer Roane, and others heard certain promises in the ratifying conventions and saw them broken once the promising parties were in office. Their critique rose from an unavoidable contrast. (For how quickly the Federalists’ real program emerged, see The Journal of William Maclay, U.S. senator from Pennsylvania , 1789–91, available online and in book form.)

In Construction Construed, Taylor went to the fundamentals. He began with “powers of sovereignty and supremacy [that] may be relished, because they tickle the mind with hopes and fears. . . .” Yet “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by Kings . . . [and] aristocracies and republicks have claimed the spoil.” In any case, the “idea of investing servants with sovereignty, and that of investing ourselves with a sovereignty over other nations, were equally preposterous.” (Now, of course, we do both.)

“Sovereignty” was “neither fiduciary nor capable of limitation.” In America, we “eradicate[d] it by establishing governments invested with specified and limited powers,” under which “the people or the states retain all the powers they have not bestowed . . . [and] ungranted rights remain also with the grantors . . . the people.” This canon of constitutional interpretation, by which powers “not granted” are seen as not granted—hence nonexistent—failed to impress Marshall and others. With more experience of the Constitution, we might judge Marshall wrong.

Taylor declined to see the words “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States”( Article I, Section 8, 18) as a charter of unknown powers; Marshall, however, saw “necessary and proper” as licensing numberless convenient and apposite means, and alongside spherical sovereignty, this was his key innovation.

Lacking certain desired powers, Congress could not simply grasp them by calling them means “necessary and proper” for fulfilling actually enumerated powers. Before the Revolution, Taylor noted in Construction Construed, Parliament contended for unlimited means of war: “The colonies replied, that it would be more absurd to limit powers, and yet concede unlimited means for their execution . . . .” Marshall ’s repositioning of “means” undid the whole idea of enumeration. Taylor wrote: “As ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards.”

Later court decisions have awarded the president the same “necessary and proper” latitude that it earlier gave Congress. The process is cumulative, but if the doctrine was unsound when aiding Congress, it remains so when fattening the executive.

Marshall undermined American political reasoning, said Taylor , “by inferring the powers of sovereignty from a delegated power; as the power of establishing banks, from the power of taxation . . . .” But reasoning from international law to American government was a mistake. Where foreign threats existed, “the constitution . . . disregarding . . . the laws of nations, assigns the power . . . to a department [Congress], not as being sovereign, but as being a trustee . . . [which] alone possesses a right to involve the United States in war; and no other department, nor any individual, has a better right to do so, than a constable has to bring the same calamity upon England. As the laws of nations cannot deprive congress of any power . . . so they cannot invest congress or any other department, with any power not bestowed by the constitution. . . . [Those laws] contemplate the powers of declaring war and making peace, as residing in an executive department; but the constitution divides them, and does not intrust the president with either” (emphasis supplied).

Contesting institutional sovereignty derived from international law, Taylor aimed right at UET theorists’ favorite things: the war powers and their location in the system.

Can Amendment Rid Us of This Turbulent Office?

Taylor ’s point is, very simply, that if the government has some general “sovereignty,” then it, or some branch of it, is the final judge of its actions. If the government is not sovereign, then the unknowably vast powers for war, emergencies, and so on must remain with the people, as individuals, families, or communities—a disturbing thought, even for believers in such powers. Such a theoretical placement might lead to individual civil disobedience and nullification by communities. Short of such drastic experiments, are there any constitutional cures for unitary-executive disease? Perhaps so. This brings us to our only remaining article of faith, the amending power.

Talk about unknown powers! We seem entirely free to abolish the executive in all its unitarity. Amendment, however, would require a train of disasters irrefutably stemming from that office. We have the disasters; the historical dice have been cast, but where will they land?

This article originally appeared in The Freeman – January 2007, Vol. 57, Issue 1.

During the Bush administration, many within the dominant culture expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.

Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.

But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.

In fact, the constitutional difficulties are profound.  This is certainly so for those who believe the Constitution means what our Founders understood it to mean.  But it is even true for those interested only in modern Supreme Court jurisprudence.

Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law:

Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document.  (The exact number depends on how you count.)  None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories.

To be sure, since the late 1930s, the Supreme Court has been tolerant of the federal welfare state, usually justifying federal ad hoc programs under specious interpretations of the congressional Commerce Power.  But, except in wartime, the Court has never authorized an expansion of the federal scope quite as large as what is being proposed now.  And in recent years, both the Court and individual justices – even “liberal” justices – have said repeatedly that there are boundaries beyond which Congress may not go.

The greatest Chief Justice, John Marshall, once wrote that if Congress were to use its legitimate powers as a “pretext” for assuming an unauthorized power, “it would become the painful duty” of the Court “to say that such an act was not the law of the land.”

But health care bills such as the Obama-favored HB 3200 do not even offer a pretext.  The only reference to the Constitution in HB 3200 is a severability clause that purports to save the remainder of the bill if part is declared unconstitutional.  HB 3200 contains no reference to the Commerce Power or to any other enumerated power.

Excessive Delegation. The Constitution “vests” legislative authority  in Congress.  Congress is not permitted to delegate that authority to the executive branch.  This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits.

Thus, in Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations in some current health care proposals.

Substantive Due Process. The Substantive Due Process doctrine was not contemplated by the Founders, but the courts have engrafted onto constitutional jurisprudence.  The courts employ this doctrine to invalidate laws they think are unacceptably intrusive of personal liberty or privacy.

The most famous modern Substantive Due Process case is Roe v. Wade, which struck down state abortion laws that intruded into the doctor-patient relationship.  But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200.  “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.

Tenth Amendment. Technically, the Tenth Amendment is merely a declaration that the federal government has no powers beyond those enumerated in the Constitution.  However, the modern Supreme Court has cited the Tenth Amendment in holding that Congress may not “commandeer” state decision making in the service of federal goals.

It is permissible for Congress to condition grants of funds to the states, if the conditions are related to the funding program and are not “coercive.”  Thus, in 1986 the Court ruled that Congress may, because of highway safety issues, reduce highway grants by five percent to states refusing to raise their drinking ages to 21.

But the mandates that some health care plans would impose on states certainly could be found “coercive,” both because they are excessive (HB 3200, for instance, would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.

A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power.  National health care proposals would increase that power greatly, so it is not surprising that those proposals have constitutional difficulties.

Whatever the merits of federal control of health care, moving in that direction is (as former Justice David Souter might say) a change of “constitutional dimension.”  The proper way to make such a change is not through an ordinary congressional bill.  The proper way is by constitutional amendment.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar.  (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.

This is the fundamental concept of the role of the federal government:

“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.”

That’s the Tenth Amendment to the Constitution.  If observed and respected to the same extent that the First Amendment is, for example, it alone would go most of the way to guaranteeing our basic freedoms, including those enumerated in all of the other Amendments.

The Tenth Amendment effectively cast the Constitution as a “Default Deny” policy against a large and oppressive government.  Default Deny is a term used in computer networking to describe a set of firewall rules that deny all network communication from anywhere and to anywhere unless it’s specifically allowed by an administrator.

Similarly, the Tenth Amendment clearly disallows the government from exercising or granting itself powers not specifically granted to it by the Constitution itself.  Those powers instead lie with the state governments and individuals.

The founders believed in distributed government.  They expressed the idea that wherever possible, problems and disputes should be addressed locally.  If a family had a dispute, the family should resolve it.  If a town had a local issue that needed to be addressed, it should be addressed locally, and so on from the county to the state and finally to the federal level.

Those most familiar with the ideals, values, morals and habits of the locality and people who are affected by the problem should be the ones to fix it.  A bureaucrat in Washington, DC is ill-equipped to rule effectively on issues affecting Forks, WA.  A problem should only be elevated to the next level if a conflict arises between two or more families, towns or states.  This is bottom-up government.

This is a form of government that empowers individuals as much as any form of government ever has.  This is the most effective way to manage a geographically and demographically diverse country while maintaining universal freedom and property rights.

Since it was written, all of the branches of government have worked to find ways around Constitutional limitations, to justify its violation, and to extend the power and influence of government in our lives.  It’s often done with the blessing of the people.

The problem is that even if an idea is popular, it’s completely illegal if the Constitution disallows it.  There are specific methods described in the Constitution itself which would allow for changing it, but these are constantly ignored out of political expediency, ignorance and pure malice.

Those who most favor a “living” interpretation of the Constitution, one in which the Constitution should be ignored or bent or broken are the ones who’ve driven the country to its current state of lawlessness and unsustainability.  These people are a class of elites that believe they can truly govern best from the top down, dictating to states, towns and families how best to live their lives.  This class of elites were originally known as the Progressives.

Most of the damage done against the 10th amendment was done, unsurprisingly, by New Deal progressives under FDR.  At that time, the Roosevelt administration was attempting to centrally manage resources and control prices of commodities.

In one case, the Supreme Court ruled that, “although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”

Basically, they’re saying that even if you, say, operate a mining business in a single state, the stuff you mine may have a substantial impact on commerce in other states, and therefore the Congress can regulate your ass.  That might seem like a stretch, since after all, once you sell what you’ve mined, it’s not really any of your concern anymore.

And yet, because of this interpretation, the federal government became dictator to the individual.

But it gets better.

In an attempt to control wheat prices, the New Dealers sought to restrict the amount of land that farmers could devote to wheat production in order to stabilize the price of wheat.

In one case, a farmer named Roscoe Filburn was allotted 11 acres of his own land to use for wheat production.  Filburn instead planted about 22 acres, intending to sell the output from the allowed 11 acres, and use the extra he produced on the other acreage for himself.  And so it went to court.

In the Supreme Court case, Wickard v. Filburn, the justices ruled that had Filburn not used his own home-produced wheat for himself, he would have had to purchase it on the open market, and therefore he was affecting interstate commerce.  Yes, that’s right.  Growing your own food is an interstate commerce issue.  Thank you, progressivism!

So if something as simple as growing your own wheat on your own farm (or by extension, growing your own tomatoes in your back yard) can be regulated by the federal government under the commerce clause, then the commerce clause can pretty much be used to regulate anything.

The 10th amendment is virtually dead.  The federal government controls all.  If one amendment can be interpreted beyond it’s intentions in such a way that it becomes meaninglessness, then really any amendment is meaningless.  The end result is that the federal government can dictate what an individual can and cannot do with his own personal property.

Whether that power is ultimately used for good or for bad doesn’t matter.  It is tyranny.

Progressive statism is a slow, incremental disease.  But little moves can have massive consequences.  Even letting defenses down temporarily for “emergency” purposes invites permanent, unwelcome change.  If you believe in conservatism, then always trust conservatism.

When in doubt, always stay true to what the founders tried to leave for us.

Kody Dickerson maintains a blog at Kodewords.com

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Most of us have a cursory knowledge of the U.S. Constitution and that the Bill of Rights are the first ten amendments to the Constitution. But few know any of the amendments other than the first (freedom of speech) and the second (gun rights).

But one amendment has been totally ignored by our political leaders. The forgotten amendment is the tenth amendment which enumerates the rights of states and the people.

The tenth amendment of the U.S. Constitution is quite simple. It states: “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.”

Simply stated, it says that the power granted to the federal government is limited and all other powers are bestowed to the states or the people. The powers granted to the federal government are listed in the first three articles of the Constitution.

You might be amazed to find out that no where in the U.S. Constitution does it give the federal government the power to regulate the temperature in your house, manage your health care, educate your children, or a myriad of things the federal government wants to control.

If our legislators want to expand federal powers to include these things, they can do it through the amendment process. The U.S. Constitution has been amended 27 times, so change is possible.

The overreaching of our Congress Critters, complicit judges, and presidents has been known and ignored for years. To reign in the abuses to the Constitution, Congressman John Shadegg (R-AZ) has proposed legislation to identify those legislators that create these non-constitutional provisions. Of course our Congress Critters wouldn’t consider it.

When former Senator John Glenn (D-OH) was asked about limiting legislation to those provisions allowed in the U.S. Constitution, he was reported to say, “If we passed this, we wouldn’t have anything to do.”

Texas Governor Rick Perry addressed the unconstitutional expansion of the federal government and the violation of the 10th Amendment to the U.S. Constitution when he said, “I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state. That is why I am here today to express my unwavering support for efforts all across our country to reaffirm the states’ rights affirmed by the Tenth Amendment to the U.S. Constitution. I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union.”

I would hope that more governors would have the guts to follow Governor Perry’s lead.

Early in the 1800′s President Thomas Jefferson must have envisioned these abuses when he said: “…..we have more machinery of government than is necessary, too many parasites living on the labor of the industrious.”

Jefferson recognized the growing problem over 200 years ago. He would be horrified to see how our current politicians have high-jacked our Constitution.

Imagine if the Congress, Courts, and President would honor their oath to abide with the powers enumerated in the Constitution. We could have part time Congress and we wouldn’t have the federal government meddling in our lives. This could unshackle the American free enterprise system and would usher in a new era of economic prosperity that these government meddlers could never achieve.

Jack Ward [send him email] has lived in Santa Cruz, CA for 4+ decades and has written several hundred opinion pieces in local newspapers to the consternation of leftwing local activists.

Copyright by Jack Ward