Paine’s writings and philosophies still hold true today, but they are under attack.

On January 10-11, 2011, in commemoration of his historic work, we defend the philosophy held within his writings by holding a mass donation day in support of another revolutionary effort for the cause of liberty, The Tenth Amendment Center.

Please pledge right now to confirm your commitment to donate on January 10-11, 2011. www.commonsensemoneybomb.com

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Of the Origin and Design of Government
by Thomas Paine, Excerpted from Common Sense

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.

In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest; they will then represent the first peopling of any country, or of the world. In this state of natural liberty, society will be their first thought. A thousand motives will excite them thereto; the strength of one man is so unequal to his wants, and his mind so unfitted for perpetual solitude, that he is soon obliged to seek assistance and relief of another, who in his turn requires the same. Four or five united would be able to raise a tolerable dwelling in the midst of a wilderness, but one man might labour out the common period of life without accomplishing any thing; when he had felled his timber he could not remove it, nor erect it after it was removed; hunger in the mean time would urge him to quit his work, and every different want would call him a different way. Disease, nay even misfortune, would be death; for, though neither might be mortal, yet either would disable him from living, and reduce him to a state in which he might rather be said to perish than to die.

Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which would supersede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but Heaven is impregnable to vice, it will unavoidably happen that in proportion as they surmount the first difficulties of emigration, which bound them together in a common cause, they will begin to relax in their duty and attachment to each other: and this remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue.

Some convenient tree will afford them a State House, under the branches of which the whole Colony may assemble to deliberate on public matters. It is more than probable that their first laws will have the title only of Regulations and be enforced by no other penalty than public disesteem. In this first parliament every man by natural right will have a seat.

But as the Colony encreases, the public concerns will encrease likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet on every occasion as at first, when their number was small, their habitations near, and the public concerns few and trifling. This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act were they present. If the colony continue encreasing, it will become necessary to augment the number of representatives, and that the interest of every part of the colony may be attended to, it will be found best to divide the whole into convenient parts, each part sending its proper number: and that the ELECTED might never form to themselves an interest separate from the ELECTORS, prudence will point out the propriety of having elections often: because as the ELECTED might by that means return and mix again with the general body of the ELECTORS in a few months, their fidelity to the public will be secured by the prudent reflection of not making a rod for themselves. And as this frequent interchange will establish a common interest with every part of the community, they will mutually and naturally support each other, and on this, (not on the unmeaning name of king,) depends the STRENGTH OF GOVERNMENT, AND THE HAPPINESS OF THE GOVERNED.

Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. Freedom and security. And however our eyes may be dazzled with show, or our ears deceived by sound; however prejudice may warp our wills, or interest darken our understanding, the simple voice of nature and reason will say, ’tis right.

I draw my idea of the form of government from a principle in nature which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered; and with this maxim in view I offer a few remarks on the so much boasted constitution of England. That it was noble for the dark and slavish times in which it was erected, is granted. When the world was overrun with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsions, and incapable of producing what it seems to promise is easily demonstrated.

Absolute governments, (tho’ the disgrace of human nature) have this advantage with them, they are simple; if the people suffer, they know the head from which their suffering springs; know likewise the remedy; and are not bewildered by a variety of causes and cures. But the constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies; some will say in one and some in another, and every political physician will advise a different medicine.

I know it is difficult to get over local or long standing prejudices, yet if we will suffer ourselves to examine the component parts of the English Constitution, we shall find them to be the base remains of two ancient tyrannies, compounded with some new Republican materials.

First. — The remains of Monarchical tyranny in the person of the King.

Secondly. — The remains of Aristocratical tyranny in the persons of the Peers.

Thirdly. — The new Republican materials, in the persons of the Commons, on whose virtue depends the freedom of England.

The two first, by being hereditary, are independent of the People; wherefore in a CONSTITUTIONAL SENSE they contribute nothing towards the freedom of the State.

To say that the constitution of England is an UNION of three powers, reciprocally CHECKING each other, is farcical; either the words have no meaning, or they are flat contradictions.

First. — That the King it not to be trusted without being looked after; or in other words, that a thirst for absolute power is the natural disease of monarchy.

Secondly. — That the Commons, by being appointed for that purpose, are either wiser or more worthy of confidence than the Crown.

But as the same constitution which gives the Commons a power to check the King by withholding the supplies, gives afterwards the King a power to check the Commons, by empowering him to reject their other bills; it again supposes that the King is wiser than those whom it has already supposed to be wiser than him. A mere absurdity!

There is something exceedingly ridiculous in the composition of Monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required. The state of a king shuts him from the World, yet the business of a king requires him to know it thoroughly; wherefore the different parts, by unnaturally opposing and destroying each other, prove the whole character to be absurd and useless.

Some writers have explained the English constitution thus: the King, say they, is one, the people another; the Peers are a house in behalf of the King, the commons in behalf of the people; but this hath all the distinctions of a house divided against itself; and though the expressions be pleasantly arranged, yet when examined they appear idle and ambiguous; and it will always happen, that the nicest construction that words are capable of, when applied to the description of something which either cannot exist, or is too incomprehensible to be within the compass of description, will be words of sound only, and though they may amuse the ear, they cannot inform the mind: for this explanation includes a previous question, viz. HOW CAME THE KING BY A POWER WHICH THE PEOPLE ARE AFRAID TO TRUST, AND ALWAYS OBLIGED TO CHECK? Such a power could not be the gift of a wise people, neither can any power, WHICH NEEDS CHECKING, be from God; yet the provision which the constitution makes supposes such a power to exist.

But the provision is unequal to the task; the means either cannot or will not accomplish the end, and the whole affair is a Felo de se: for as the greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and tho’ the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual: The first moving power will at last have its way, and what it wants in speed is supplied by time.

That the crown is this overbearing part in the English constitution needs not be mentioned, and that it derives its whole consequence merely from being the giver of places and pensions is self-evident; wherefore, though we have been wise enough to shut and lock a door against absolute Monarchy, we at the same time have been foolish enough to put the Crown in possession of the key.

The prejudice of Englishmen, in favour of their own government, by King, Lords and Commons, arises as much or more from national pride than reason. Individuals are undoubtedly safer in England than in some other countries: but the will of the king is as much the law of the land in Britain as in France, with this difference, that instead of proceeding directly from his mouth, it is handed to the people under the formidable shape of an act of parliament. For the fate of Charles the First hath only made kings more subtle — not more just.

Wherefore, laying aside all national pride and prejudice in favour of modes and forms, the plain truth is that IT IS WHOLLY OWING TO THE CONSTITUTION OF THE PEOPLE, AND NOT TO THE CONSTITUTION OF THE GOVERNMENT that the crown is not as oppressive in England as in Turkey.

An inquiry into the CONSTITUTIONAL ERRORS in the English form of government, is at this time highly necessary; for as we are never in a proper condition of doing justice to others, while we continue under the influence of some leading partiality, so neither are we capable of doing it to ourselves while we remain fettered by any obstinate prejudice. And as a man who is attached to a prostitute is unfitted to choose or judge of a wife, so any prepossession in favour of a rotten constitution of government will disable us from discerning a good one.

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Did the Founders’ Constitution give Congress the power to restrict immigration?  Or was this a subject reserved to the states?

The question has come to the fore in recent months because of the controversy surrounding the Arizona immigration law.   My own search for the answer offers some important lessons about constitutional interpretation.

The Constitution, as readers of this website know, grants Congress only certain enumerated federal powers.  About half of these are found in Article I, Section 8, while the rest are scattered throughout other parts of the document.  Yet none of those powers explicitly mentions immigration.

This apparent silence has led some to suggest that immigration was left exclusively to state control.  However, the Founders gave primary control over foreign affairs to the federal government, and immigration (and emigration) was an important aspect of foreign affairs in the eighteenth century.   Also, Article I, Section 9, Clause 1, which prohibited Congress from prohibiting before 1808 the “Migration” of free people as well as “Importation” of slaves presupposed a congressional power to prohibit or restrict immigration after 1808.

But if Congress has power to regulate immigration, where in the Constitution was it granted?

Some writers have argued that it was part of Congress’s authority to “regulate Commerce with foreign Nations.”  For a while, I was misled into accepting this position.

As I thought about it more, I became troubled.  From reviewing hundreds of eighteenth-century sources, I had learned that “commerce” nearly always referred to the activities of merchants and certain closely-related activities.  These activities certainly encompassed travel for business purposes and travel by ship or other conveyance.  But constitutional scholar David Kopel pointed out to me that those activities did not include the fellow who hoofed it over the international border to live in the United States.  An immigrant of that description was not engaged in “commerce,” as the Constitution uses the word.

So I began another search to learn whether there was a federal power over immigration, and if so where it came from.  Eighteenth-century law provided the answer – not commercial law, but international law.

Article I, Section 8, Clause 10 of the Constitution granted power to Congress to “define and punish . . . Offences against the Law of Nations.”  I decided to dig more deeply into the eighteenth century legal sources to determine whether that might include authority over immigration.  Sure enough, it turns out that during the Founding Era, restrictions over immigration and emigration comprised a well-recognized branch of the “Law of Nations.”  In other words, Congress’s power to “define and punish . . . Offenses against the Law of Nations” included authority to “define” immigration rules and “punish” those who violated them.  An explanation appears in latest update of my book, The Original Constitution: What It Really Said and Meant .

Why is this constitutional detective story significant?  First, clarifies why the constitutional text assumes that after 1808 Congress could regulate “Migration” from foreign lands.  Second, it clarifies that Congress cannot use the interstate commerce power to bar non-commercial travel within the United States.  Third, it knocks one of the props out from under an argument that, however silly, is solemnly advanced by some “liberal” writers – that “commerce” included non-business travel, and therefore that “commerce” also included nearly all other human relationships.

Finally, this story underscores a point I explain for the layperson in The Original Constitution: When the Constitution is unclear, eighteenth century law offers us valuable trail marks toward the truth.

Rob Natelson, a leading scholar of the Founding Era, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Golden, Colorado and Senior Fellow at the Goldwater Institute in Phoenix. He retired from the University of Montana earlier this year, where he taught Constitutional Law.

The battle raging between the federal government and the State of Arizona over its so-called anti immigration law has raised some constitutional issues that will ultimately be decided by the United States Supreme Court.  It has been asserted by the federal government that the States are precluded from protecting their borders and controlling illegal aliens because the Constitution grants the federal government these powers.  This assertion is erroneous because the individual States, as sovereign political entities, have the absolute right to protect their borders from illegal aliens irrespective of the Constitution or any power granted to the federal government.

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

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

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

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

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

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

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

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

Alexander Hamilton made this observation, several months prior to Marshall, in his writings in the Federalist Essays.  In Essay No. 32 he wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

California, Arizona, New Mexico and Texas have the power, unrestrained by the Constitution for the United States, to engage in war with Mexico to protect their citizens and borders from the human invasion.  One or all of these States should inform the clowns in Washington D.C. that we are mobilizing our militia for the trip south and we double dog dare you to try and stop us.

FYI If you read the Naturalization Acts of 1790 & 1795, which were the first two Naturalization Acts passed by Congress after the Constitution was ratified, you will note that they are not called Immigration Acts.  In fact, the word immigration does not appear in either Act.  These Acts negate the assertion that the Constitution made the so-called immigration process an exclusive federal function because individuals wishing to become citizens could do so through the States and their courts.

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

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Federalism is a form of governing in a republic that was launched in earnest, for the first time, through the efforts of the 1787Constitutional Convention.   The men who gathered for the convention did not agree on everything and the states’ citizens they represented also disagreed on many things.  This is not unusual then or now, we humanoids are known to disagree.  The science of government is not a perfect science.  People have different agendas, alliances, and concerns.  Yet, when the doors opened on Sept. 17^th, 1787 a concept emerged that would be debated across the young country, in the sovereign States’ conventions gathered to consider ratification.

Those who embraced the document as it was written were committed to establishing a federalist republic with a fundamental foundation in the rule of law over the rule of kings.  Those who did not embrace the document were also committed to establishing a federalist republic formed on the same concept yet felt the original document still lacked the safeguards necessary for protecting the people of all States through the addition of a Bill of Rights with the keystone set in the duty of states to check the general government as well as the general government having a check on states.  Both understood it was an attempt to develop a republican government that protected against factional largess and majority abuse over minorities while providing people an opportunity to live in a free environment.

From New York to Virginia, New Hampshire to the Carolinas there was one thing many came to agree on in their respective conventions.  Federalism’s success depended on the vertical separation of powers as much as the horizontal separation.  Maintaining government over the daily concerns of people at the lowest level possible was necessary for self-government to thrive and kingly government to have no place in the future of the United States.  Listen to a few of the proposals added to their ratification (as quoted from United States: Formation of the Union, GPO, 1927):

“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.” (South Carolina Ratifying Convention, May 3^rd, 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.” (New Hampshire State Ratifying Convention, 1^st Amendment Proposal, June 6^th, 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 Federal government.” (Virginia State Ratifying Convention, 1^st Amendment Proposal, June 7^th, 1788)

“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.” (North Carolina State Ratifying Convention, 1^st Amendment Proposal, Nov. 21^st, 1789)

“1^st 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 Sates.” (Rhode Island State Ratifying Convention, 1^st Amendment proposal, May 29^th, 1790)

All of these states, and more, caused the very first Congress of the United States to take action.  This action resulted in the proposal of 12 amendments to the Constitution.  Why?  Turn to the preamble of the resolution submitted to the States, on March 4^th, 1789, and read the answer;

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:”

What were the States attempting to prevent?  “Misconstruction or abuse of it’s (the National Government) powers.”  What was necessary?  Simply “that further declaratory and restrictive clauses should be added!”  The twelfth proposal (which became the tenth amendment) was the keystone that set at ease the many States, and their citizens, that had made separation of vertical powers their first proposal as part of the ratification process.

Historians tell us Alexander Hamilton was a strong nationalist, even perhaps a monarchist.  Surely such a man disagreed on the need for State duty or power.  If we can find no other voice among the founders who felt the States had no business checking thenational government it would be his.  We get a full insight into his view of federalism during the 1788 New York Convention.  He extolled;

“This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance.  It forms a double security to the people.  If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from over passing their constitutional limits by a certain rivalship, which will ever subsist between them.” (Alexander Hamilton, speech to the New York Ratifying Convention, 1788)

Plainly all those who disagreed on so many aspects of government found common ground in the need for each State to maintain their duty to protect their citizens.  Citizens of each State had a duty to insure their States retained their constitutional sovereignty, a duty to support legislators who put a check on general power, who interposed on the citizens behalf.  It is for this reason James Madison words make sense when writing, in Federalist 39, “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.”

Federalism was to become known as a grand and noble experiment.  The very document and structure created would cause debates and discussions around the globe.  It would require the people to stay actively involved locally, especially within their homes and communities, while electing statesmen who would honor an oath and defend their rights whether elected to represent them in the general, state, or local government.  Human nature was going to be put to a test and those who disagreed on the finer points within the science of government were going to be tasked with finding agreements as well as compromises when necessary.

Federalism not nationalism, the debate did not end in the 1780s or 1790s.  It raged on as men struggled with temptations.  Even the staunchest believers in federalism gave way when pressed as Jefferson did with the Louisiana Purchase and embargos that brought the wrath of northern states upon him.  It was also Jefferson, even earlier, along with Hamilton that spawned the rise of the first major factional divide we refer to as political parties.  Political parties are just factions; special interest groups with a platform that shifts with the whims of its members as it struggles for footholds into political power.  Yet, as early as these struggles occurred there was not a single effort to end federalism or repeal the 10^th Amendment of our U.S. Constitution.  Long after Hamilton and Jefferson had left this world Joseph Story showed there was still a large level of belief in the institution.

“The state governments have a full superintendence and control over the immense mass of local interests of their respective states, which connect themselves with the feelings, the affections, the municipal institutions, and the internal arrangements of the whole population. They possess, too, the immediate administration of justice in all cases, civil and criminal, which concern the property, personal rights, and peaceful pursuits of their own citizens…”So that the executive and legislative branches of the national government depend upon, and emanate from the states. Every where the state sovereignties are represented; and the national sovereignty, as such, has no representation.” (Joseph Story, Commentaries on the Constitution, 1833)

Yet our course has been altered despite checks and balance, despite separation of powers, and despite having a history to learn from, improve upon, and grow in self-governing liberty.  The 10^th Amendment still has never been repealed yet people have long allowed the notion of separation to slip their minds.  Sold on an idea of democracy, majority rule, and a federal government is the governing body that holds the answers (if our chosen party’s personality sits as executive) politics is that area of life few want to hear about and fewer still want to study.

Keystone to our liberty

We still disagree on many things yet when is the last time anyone even debated federalism or nationalism, democracy or complex republic?  Recently?  Indeed, recently the debate is starting to gain steam once again.  Not among the many but definitely among the few, similar in our history to the 1760s and early 1770s.

Those debating are finding plenty to disagree upon yet more and more are beginning to once again realize there is agreement to be found in federalism’s arms.  A nation so large can only be free when politically approached locally, it simply makes sense to those who study as no society has prospered long under democracy and freedom never thrives under the rule of kings.

Are you studying once again?  Are you reading the words of those men who developed our fundamental principles?  Have you listened to the words of Jefferson, when written to Judge William Johnson back in 1823, and found truth when he stated;

[T]he States can best govern our home concerns and the general government our foreign ones. I wish, therefore … never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold at market.

Gary Wood is the Education Advisor for the Utah Tenth Amendment Center. He works with the Utah 912 States’ Rights Coalition and Hosts March of Liberty Radio every Saturday and Sunday evening at 7pm EST on Blog Talk Radio. He is a lifetime member of the VFW among other groups but more important to him is his title of grandpa. “According to Thomas Jefferson the 10th Amendment is keystone to our Constitution. We must restore the keystone so we can secure the blessings of liberty for our posterity, a goal of our Founders and a goal we must still strive to achieve.”

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

In an earlier post, I wrote that the Tenth Amendment was adopted to reinforce the legal interpretation rule providing that if you list some items in a document, this implies that other items are excluded.  The Tenth Amendment clarified that the federal government enjoyed only the powers listed in the Constitution and no others.

But why should anyone think there were others?  Especially if there was a legal rule of interpretation to the contrary?

The answer to that question takes us to a story known to very few – even to very few constitutional scholars.

Throughout the period of the Continental and Confederation Congresses (1776-1788), advocates of a strong central government argued that, in addition to whatever express powers Congress had received from the states, Congress also enjoyed additional “inherent sovereign authority.”  This theory would allow Congress to exercise many powers not on the list granted by the Articles of Confederation.

During this period, the “inherent sovereign authority” argument was made by John Adams, Benjamin Rush, Alexander Hamilton, James Madison, and the Hartford Convention of 1780.  They argued that Congress necessarily had inherent sovereign authority because it was America’s agent for foreign affairs.  They sometimes argued that the British Crown conveyed inherent sovereign authority to Congress by the 1783 peace treaty recognizing independence.

The best-known exposition of inherent sovereign authority appeared in James Wilson’s Considerations on the Bank of North America.  Wilson’s purpose in composing this paper was to justify Congress’s decision to charter a national bank, even though the Articles of Confederation had given Congress no such power.

Opponents of the Constitution admitted that the Constitution enumerated federal powers, but they feared that Wilson & Company might raise the same “inherent sovereign authority” claim again.  Accordingly, most of the states demanded a constitutional amendment explicitly limiting the federal government to those enumerated in the Constitution.  That amendment became the Tenth.

What is particularly surprising in light of this history and the Tenth Amendment’s explicit wording, is that some people still argued that the federal government had a vast reservoir of “inherent sovereign authority.”

The subject came up in a 1907 case (Kansas v. Colorado), but the Supreme Court rejected the idea, citing the Tenth Amendment.  But the Court used the theory in a 1936 (U.S. v. Curtiss-Wright) to justify federal foreign affairs powers.  And a majority of the court seems to have endorsed it in a 2004 case (U.S. v. Lara) explaining federal power over the Indian tribes.

But as a matter of history and constitutional text, there is no real doubt that the Tenth Amendment rendered the theory of “implied sovereign authority” completely illegitimate.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.