by Thomas J. DiLorenzo, LewRockwell.com

After spending a lifetime in politics John C. Calhoun (U.S. Senator, Vice President of the United States, Secretary of War) wrote his brilliant treatise, A Disquisition on Government, which was published posthumously shortly after his death in 1850. In it Calhoun warned that it is an error to believe that a written constitution alone is “sufficient, of itself, without the aid of any organism except such as is necessary to separate its several departments, and render them independent of each other to counteract the tendency of the numerical majority to oppression and abuse of power” (p. 26). The separation of powers is fine as far as it goes, in other words, but it would never be a sufficient defense against governmental tyranny, said Calhoun.

Moreover, it is a “great mistake,” Calhoun wrote, to suppose that “the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted, with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers” (emphasis added). The party “in possession of the government” will always be opposed to any and all restrictions on its powers. They “will have no need of these restrictions” and “would come, in time, to regard these limitations as unnecessary and improper restraints and endeavor to elude them . . .”

The “part in favor of the restrictions” (i.e., strict constructionists) would inevitably be overpowered. It is sheer folly, Calhoun argued, to suppose that “the party in possession of the ballot box and the physical force of the country, could be successfully resisted by an appeal to reason, truth, justice, or the obligations imposed by the constitution” (emphasis added). He predicted that “the restrictions [of government power in the Constitution] would ultimately be annulled, and the government be converted into one of unlimited powers.” He was right, of course.

This is a classic statement of the Jeffersonian states’ rights position. The people of the free, independent and sovereign states must be empowered with the rights of nullification and secession, and a concurrent majority with veto power over unconstitutional federal laws, if their constitutional liberties are to have any chance of protection, Calhoun believed. The federal government itself can never, ever be trusted to limit its own powers.

How did Calhoun come to such conclusions? One answer to this question is that he was a serious student of politics, history, and political philosophy for his entire life, and understood the nature of government as much as anyone else alive during his time. He also witnessed first hand or quickly learned about the machinations of the sworn enemies of limited constitutional government in America: men such as Alexander Hamilton, John Adams, John Marshall, Joseph Story and Daniel Webster.

The Founding Fathers of Constitutional Subversion

America’s first constitution, the Articles of Confederation and Perpetual Union, did a much better job of limiting the tyrannical proclivities of government than the U.S. Constitution ever did, and it did so while permitting enough governmental power to field an army that defeated the British Empire. The limits on government that the Articles contained outraged the advocates of unlimited governmental powers, such as Alexander Hamilton, which is why the “Perpetual Union” that was created by the Articles was abolished as all the states peacefully seceded from that union

The constitutional convention was Hamilton’s idea as much as anyone’s. Upon arriving at the convention Hamilton laid out the plan of his fellow nationalists: a permanent president or king, who would appoint all governors, who would have veto power over all state legislation. This monopoly government would then impose on the entire nation a British-style mercantilist empire without Great Britain, complete with massive corporate welfare subsidies, a large public debt, protectionist tariffs, and a central bank modeled after the Bank of England that would inflate the currency to finance the empire.

Hamilton did not get his way, of course, thanks to the Jeffersonians. When the Constitution was finally ratified, creating a federal instead of a national or monopolistic, monarchical government, Hamilton denounced the document as “a frail and worthless fabric.” He and his Federalist/nationalist colleagues immediately went to work destroying the limits on government contained in the Constitution. He invented the notion of “implied powers” of the Constitution, which allowed him and his political heirs to argue that the Constitution is not a set of limitations on governmental powers, as Jefferson believed it was, but rather a potential stamp of approval on anything the government ever wanted to do as long as it is “properly” interpreted by clever, statist lawyers like Alexander Hamilton or John Marshall. Hamilton “set out to remold the Constitution into an instrument of national supremacy,” wrote Clinton Rossiter in Alexander Hamilton and the Constitution.

One of the first subversive things Hamilton did was to rewrite the history of the American founding by saying in a public speech on June 29 1787, that the states were merely “artificial beings” and were never sovereign. The “nation,” not the states, was sovereign, he said. And he said this while the constitutional convention was busy crafting Article 7 of the Constitution, which holds that the Constitution would become the law of the land only when nine of the thirteen free and independent states ratified it. The states were to ratify the Constitution because, as everyone knew, they were sovereign and were delegating a few express powers to the central government for their mutual benefit.

It was Hamilton who first invented the expansive interpretations of the General Welfare and Commerce Clauses of the Constitution, which have been used for generations to grant totalitarian powers to the central state. He literally set the template for the destruction of constitutional liberty in America the moment it became apparent at the constitutional convention that he and his fellow nationalists would not get their way and create a “monarchy bottomed on corruption,” as Thomas Jefferson described the Hamiltonian system.

Hamilton’s devoted disciple, John Marshall, was appointed chief justice of the United States in 1801 and served in that post for more than three decades. His career was a crusade to rewrite the Constitution so that it would become a nationalist document that destroyed states’ rights and most other limitations on the powers of the centralized state. He essentially declared in Marbury vs. Madison that he, John Marshall, would be the arbiter of constitutionality via “judicial review.” The Jeffersonians, meanwhile, had always warned that if they day ever came when the federal government became the sole arbiter of the limits of its own powers, it would soon declare that there were, in fact, no limits on its powers. This of course is what the anti-Jeffersonians wanted – and what has happened.

In the case of Martin v. Hunter’s Lessee Marshall invented out of thin air the notion that the federal government had the “right” to veto state court decisions. Marshall also made up the theory that the so-called Supremacy Clause of the Constitution makes the federal government “supreme” in all matters. This is false: The federal government is only “supreme” with regard to those powers that were expressly delegated to it by the free and independent states, in Article 1, Section 8.

Marshall also repeated Hamilton’s bogus theory of the American founding, claiming that the “nation” somehow created the states. He amazingly argued that the federal government was somehow created by “the whole people” and not the citizens of the states through state political conventions, as was actually the case. In the name of “the people,” Marshall said, the federal government claimed the right to “legitimately control all individuals or governments within the American territory” (Edward S. Corwin, John Marshall and the Constitution, p. 131).

All of the Hamilton/Marshall nonsense about the founders having created a monopolistic, monarchical government and having abolished states rights or federalism was repeated for decades by the likes of Supreme Court Justice Joseph Story and Daniel Webster. Story was “the most Hamiltonian of judges,” wrote Clinton Rossiter. His famous book, Commentaries on the Constitution, published in 1833, could have been entitled “Commentaries on Alexander Hamilton’s Commentaries on the Constitution,” says Rossiter. He “construed the powers of Congress liberally,” i.e., meaning there were virtually no limits to such powers; and “upheld the supremacy of the nation,” i.e., of monopolistic, monarchical, and unconstitutional government. Stories Commentaries provided a political roadmap for “the legal profession’s elite or at least among the part of it educated in the North during the middle years of the nineteenth century,” wrote Rossiter.

Story’s “famous” Commentaries are filled with phony history and illogic. On the Articles of Confederation, he wrote that “It is heresy to maintain, that a party to a compact has a right to revoke that compact.” But of course the Articles were revoked!

Secession of a single state would mean “dissolution of the government,” Story wrote. Nonsense. After eleven Southern states seceded in 1860–61 the U.S. government proceeded to field the largest and best-equipped army in the history of the world up to that point. It was hardly “dissolved.”

In a classic of doubletalk, Story admitted that “The original compact of society . . . in no instance . . . has ever been formally expressed at the first institution of a state.” That is, there was never any agreement by the citizens of any state to always and forever be obedient to those who would enforce what they proclaim to be “the general will.” Nevertheless, said Story, “every part should pay obedience to the will of the whole.” And who is to define “the will of the whole”? Why, nationalist Supreme Court justices like Joseph Story and John Marshall, of course.

Story admitted that social contract theories of “voluntary” state formation were mere theoretical fantasies. He also held the rather creepy and totalitarian, if not barbarian view that “The majority must have a right to accomplish that object by the means, which they deem adequate for the end . . . . The will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual.”

What Story is saying here is not that there should be a national plebescite on all policy issues that can express the “will of the majority.” No, as with Hamilton he adopted the French Jacobin philosophy that such a “will” was possessed in the minds of the ruling class, and that that class (the Storys, Hamiltons, Marshalls, etc.) somehow possessed “absolute” power as long as it has the military means to “make its will effectual.” Here we have the theoretical basis for Abe Lincoln’s waging of total war on his own citizens.

Contrary to the political truths expressed by Calhoun which have all proven to be true, by the way Story expressed the elementary-schoolish view that the appropriate response to governmental oppression should be only via “the proper tribunals constituted by the government” which would supposedly “appeal to the good sense, and integrity, and justice of the majority of the people.” Trust the politicians and lifetime-appointed federal judges to enforce their view of “justice,” in other words. That hasn’t really worked out during the succeeding 170 years.

Story also repeated John Marshall’s fable that the Supremacy Clause created a monopolistic government in Washington, D.C. and effectively abolished states’ rights, along with the equally ridiculous myth that the Constitution was magically ratified by “the whole people” (presumably not counting women, who could not vote, or slaves and free blacks).

Another famous and influential subverter of the Constitution was Daniel Webster, who repeated many of these same nationalist fables during his famous U.S. Senate debate with South Carolina’s Robert Hayne in January of 1830. This is a debate that Hayne clearly won according to their congressional colleagues, and the media of the day, although nationalist historians (a.k.a., distorians) have claimed otherwise.

The first Big Lie that Webster told was that “the Constitution of the United States confers on the government itself . . . the power of deciding ultimately and conclusively upon the extent of its own authority.” No, it does not. John Marshall may have wished that it did when he invented judicial review, but the document itself says no such thing. As Senator John Taylor once said, “The Constitution never could have designed to destroy [liberty], by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments.”

Webster then presented a totally false scenario: “One of two things is true: either the laws of the Union are beyond the discretion and beyond the control of the States; or else we have no constitution of general government . . .” Huh? All the laws? Are the people to have no say whatsoever about laws they believe are clearly constitutional? Apparently so, said Daniel Webster.

The a-historical fairy tale about the Constitution being somehow ratified by “the whole people” was repeated over and over by Webster. His strategy was apparently to convince his audience not by historical facts but by repetition and bluster. “The Constitution creates a popular government, erected by the people . . . it is not a creature of the state governments,” he bellowed. Anyone who has ever read Article 7 of the U.S. Constitution knows that this is utterly false.

In fine French Jacobin fashion, Webster asked, “Who shall interpret their [the peoples’] will? Why “the government itself,” he said. Not through popular votes, mind you, but through the orders, mandates, and dictates of “the government itself.” The people themselves were to have nothing to do with “interpreting” their own “will.”

Article 3, Section 3 of the U.S. Constitution clearly defines treason under the constitution: “Treason against the United States shall consist in levying war against them, or in adhering to their enemies, giving them Aid and Comfort.” Thus, treason means levying war against “them,” the sovereign states. This is why Lincoln’s invasion of the Southern states was the very definition of treasonous behavior under the Constitution. Had the North lost the war, he could have been justifiably hanged.

Webster attempted to re-define treason under the Constitution by claiming that “To resist by force the execution of a [federal] law, generally, is treason.” Thus, if the federal government were to invade a sovereign state to enforce one of its laws, a clearly treasonous act under the plain language of the Constitution, resistance to the invasion is what constitutes treason according to Webster. He defined treason, in other words, to mean exactly the opposite of what it actually means in the Constitution.

Then there is the elementary-schoolish faith in democracy as the only necessary defense against governmental tyranny: “Trust in the efficacy of frequent elections,” “trust in the judicial power.” Well, we tried that for decades and decades, Daniel, and it didn’t work.

All of these false histories and logical fallacies were repeated by other nationalist politicians for decades. This includes Abraham Lincoln, who probably lifted his famous line in The Gettysburg Address from this statement by Webster during his debate with Hayne: “It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law.” Of course, they did not.

As Lord Pete Bauer once said in commenting on the rhetoric of communism, whenever one hears of “the people’s republic” the “peoples’ government,” etc., it is a sure bet that the people have nothing whatsoever to do with, or control over that government.

Hamilton, Marshall, Webster, Story, and other nationalists kept up their rhetorical fog-horning for decades, trying to convince Americans that the founding fathers did, after all, adopt Hamilton’s plan of a dictatorial executive that abolished states rights and was devoted to building a mercantilist empire in America that would rival the British empire. But their rhetoric had little or no success during their lifetimes.

New Englanders plotted to secede for a decade after Thomas Jefferson was elected president in 1800; all states, North and South, made use of the Jeffersonian, states’ rights doctrine of nullification to oppose the Fugitive Slave Act, protectionist tariffs, the antics of the Bank of the United States, and other issues up until the 1860s. There was a secession movement in the Mid-Atlantic states in the 1850s, and in 1861 the majority of Northern newspaper editorialists were in support of peaceful secession (see Northern Editorials on Secession by Howard Perkins).

The false, nationalist theory of the American founding was repeated by Abraham Lincoln in his first inaugural address (and praised decades later by Adolf Hitler in Mein Kampf, wherein Hitler mad his case for abolishing states’ rights and centralizing all political power in Germany). In the same speech Lincoln threatened “invasion” and “bloodshed” (his words) in any state that failed to collect the newly-doubled federal tariff tax. He then followed through with his threat.

The only group of Americans to ever seriously challenge this false nationalist theory, Southern secessionists, were mass murdered by the hundreds of thousands, including some 50,000 civilians according to James McPherson; their cities and towns were bombed and burned to the ground, tens of millions of dollars of private property was plundered by the U.S. Army; Southern women, white and black, were raped; and total war was waged on the civilian population. This is what finally cemented into place the false, Hamiltonian/nationalist theory of the American founding, for the victors always get to write the history in war. Government of the people, by the people, for the people, is “limited only” by the state’s “power to make its will effectual,” as Joseph Story proclaimed. The technology of mass murder in the hands of the state finally made this will “effectual” in the first half of the 1860s. Americans have been mis-educated and misinformed about their own political history ever since. It is this mis-education, this false theory of history, that serves to prop up the Hamiltonian empire that Americans now slave under.

Thomas J. DiLorenzo [send him mail] is professor of economics at Loyola College in Maryland and the author of The Real Lincoln; Lincoln Unmasked: What You’re Not Supposed To Know about Dishonest Abe and How Capitalism Saved America. His latest book is Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution – And What It Means for America Today.

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

Anyone who desires a constitutionally limited federal government should remember and celebrate that its limitations would necessarily cut both ways. Because if federal policy actually adhered to the letter of the Constitution, no single ideological camp could wield sufficient power to impose a set of beliefs on the entire country.

Which was exactly the point of our federalist system, and of the 10th Amendment. Beyond specific, enumerated federal powers, an infinite number of issues were intentionally left to the authority of the people through their state governments. And it is to the states that liberals, conservatives, and even libertarians must address all questions extending beyond the constitutional purview of federal authority.

Questions involving but not limited to:

Health Care: If the framers had intended the federal government to establish and manage hospitals and Alms Houses within the states, they would no doubt have given it the explicit authority to do so. To misconstrue the general Welfare Clause in such a way as to conjure that authority out of thin air is to commit a blatant act of intellectual dishonesty.

In fact, regarding those words, “general welfare,” James Madison himself said: “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.”

This also includes Medicare and Social Security, both of which are preparing to default on a massive scale thanks to the sort of bureaucratic mismanagement and fiscal shell games at which governments excel.

Of course, nowhere does the Constitution say that states cannot establish and bankrupt their own socialized medicine or retirement schemes. See: Massachusetts and California.

Drugs: George Washington and Thomas Jefferson were hemp farmers, and drugs themselves have existed in various forms for thousands of years. They were certainly not unknown to the framers of our national government. Yet, excepting the (repealed) 18th Amendment, there is no mention of drugs or prohibition in the Constitution.

It is thanks to an expansive and unlimited interpretation of the Commerce Clause that the federal government now claims the power to ban certain substances. But in 1787, the Commerce Clause was worded to make trade regular between the states by preventing protectionist tariffs, not to give Congress the power to impose national standards of morality on the marketplace.

In recent years, some states have tried to reassert their authority on this issue, but a senselessly violent war continues to be waged by the federal government against the personal purchasing decisions of people in every state.

Marriage: The positive impact of creating social and financial bonds between consenting adults was likely as obvious in the eighteenth century as it is now. But the framers had a much healthier distrust of the federal government than we do today. They gave it no power to define marriage because the framers did not feel compelled to ask or grant the blessing of the federal government in forming private religious unions.

Neither do we need it today to legitimize private unions, religious or otherwise. But as long as both parties seek to engineer social policy through the federal income tax code, the issue of marriage will needlessly divide our country, and state governments will remain unable to fully implement their citizens’ will.

The list goes on and on, but the point remains the same: America was built on individualism and freedom of choice, and what’s right for one person or one state is not necessarily right for them all.

There is no way to make everyone happy with every law, but abandoning the futile and divisive quest for a “one size fits all” centralized government, and returning the states to their rightful role as competing laboratories of democracy is a good start.

Before America can rediscover the promise of her founding, people on both sides of the aisle must come to grips with the fact that the federal government does not exist to impose on the nation either the Right’s or the Left’s vision of freedom, morality, or social justice.

Josh is a freelance writer and journalist originally from the Washington D.C. area. He is a cynically optimistic and unrepentant news junkie. His work has been published locally and in Charleston, SC. Email Josh.

This year, hundreds of thousands of citizens have met in Tea Party rallies across our nation and have given a voice to the Jeffersonian tradition. The crowds support the reduction of federal power and an end to undisciplined government spending. This approach to government is the philosophy advocated by our third president, Thomas Jefferson.

Jefferson was one of the early proponents of the “strict constructionist” view of the Constitution. This view affirms that any powers not explicitly delegated to the federal government by the Constitution, nor prohibited to the states, should be reserved to the states and to the people. This is the essence of the Tenth Amendment to the U.S. Constitution, which was part of the Constitution Jefferson swore to uphold in his oath of office.

Jefferson defended the rights of the common man over the prerogatives of the state. His view on the subject is stated succinctly in a letter to Elbridge Gerry, a signer of the U.S. Constitution and one-time governor of Massachusetts. The letter was dated 1799, a year before Jefferson was elected president.

“I am for preserving to the States the powers not yielded by them to the Union, & to the legislature of the Union [Congress], its constitutional share in the division of powers; and I am not for transferring all the powers of the States to the general government, & all those of that government to the Executive branch.”

In his first Inaugural Address, Jefferson also touched on this subject when he listed his “essential principles of our government.”

“…the support of the state governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies…”

Jefferson would start another revolution were he alive today, for what he opposed occurred in the twentieth century. The federal government assumed more and more authority in every area of government policy, from building roads to educating children. Jefferson would have left these matters to be handled at the state level; he would not have enlarged the federal government to administer them in Washington.

Executive branch departments and so-called independent agencies control the program delivery systems and administrative rule-making powers that define federal policy today. Meanwhile, state officials must go to Washington, D.C. and beg for federal money and federal programs.

The states should tell the Feds to keep their programs and their money, but that would be difficult politically and financially. States would have to raise state and local taxes to make up for the loss in federal funds and the federal government would lose control over the states and the populace.

Of course, this would mean the federal budget could be balanced and the national debt retired, over time. This is the program of reform that Congress would enact if it really wanted to serve the people and carefully steward the taxpayers’ money.

Jefferson’s strict constructionist view put him at odds with Alexander Hamilton, who advocated the opposing doctrine of implied powers, which gave the federal government a much more expansive field of authority.

Jefferson and Hamilton were both members of the Cabinet during George Washington’s presidency. The two men sharply disagreed over the question of public debt. Hamilton saw it as a positive tool that could be used to establish credit for the United States, while Jefferson saw public debt as an affront to the liberty of the citizens.

Hamilton believed a national debt to be a blessing. Jefferson, however, was of a different mind. He wrote to James Madison in 1789 regarding the nation of France, “. . . would it not be wise and just for that nation to declare in the constitution they are forming that neither the legislature, nor the nation itself can validly contract more than they may pay within their own age, or within the term of 19 years?”

In his 1799 letter to Elbridge Gerry, Jefferson commented on frugal government and eliminating public debt.

“I am for a government rigorously frugal & simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers & salaries merely to make partisans, & for increasing, by every device, the public debt, on the principle of its being a public blessing.”

In getting Congress to accept all Revolutionary War debts at face value, Hamilton obligated the government to pay for years on the principal and interest. In order to make payments on the debt, several new taxes were necessary. These taxes included tariffs or import duties and excise taxes on such things as alcohol, refined sugars, auctions, and licenses. Once in office, Jefferson and his allies in the Congress worked to repeal the excise taxes.

During his presidency, Congress, at Jefferson’s request, abolished the internal revenue service, which had been established to collect the excise taxes. This branch of the Treasury Department should not be confused with the modern Internal Revenue Service.

The agency in Jefferson’s day consisted of about five hundred employees who were involved in collecting excise taxes. (The income tax had not yet been established.) With the excise taxes repealed, there was no need for this tax-collecting agency. Jefferson and his Treasury secretary also persuaded Congress to cut government spending and make substantial payments to reduce the war debt.

According to Americans for Prosperity, a free-market advocacy organization, our government has already spent trillions in its attempt to solve our economic problems. This is more than the cost of World War II. In addition, the government has committed to spend trillions more over the next few years, which will bring the grand total to an unbelievable $11.6 trillion in new spending – more than 26 times the size of the New Deal.

It is time for citizens to engage their public servants and demand a stop to this madness. It is time for the Washington liberals to wake up and do what common sense demands. Fiscal responsibility is a big key to solving our problems. Now is the time to make the changes that will re-establish American liberty.

Jim Jess has participated in politics as an activist, writer, and nonprofit organization leader for 30 years. He worked in the office of Governor Sonny Perdue and is a member of several conservative groups. Jim writes for Examiner.com and maintans the website ConstitutionalEducation.org.

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

Speech before the State House supporting passage of HCR-69

Prior to the Tea Party demonstrations across our nation I have not heard of a ‘Tea Party’ since grammar school and the last one held in the U.S. was well over 200 years ago.

Resolution HCR 69 and the Tea Parties seen this past April around the state and nation could actually go hand in hand.  In different, but similar ways both address our federal governments excessive federal spending, an increasingly burdensome tax code, as well as meddling into our personal and professional lives at unprecedented levels.  For many Mississippians they’ve had enough and they are looking to us for a solution.

Simply stated this Resolution is about the 10th amendment to the US Constitution where 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.”

Congress’s most important role granted by the constitution is to protect the rights and safety of its people, most notably by providing national security.  However, they have interpreted their responsibility well beyond the intent of our founding fathers and find themselves treading deep into the powers granted to this legislative body.  They seem to be making it up as they go.

Some in our very own Congressional delegation has tried to limit the size of government, but they need our help because it is now out of control.

The federal government is growing unchecked as seen by this current administrations actions as well as prior administrations.  As a country we are governed by a written constitution that grants the people and the states the right to keep government in line and that we cannot be forced to accept an oppressive and intrusive federal government.

The Constitution was well designed, and checks and balances are in place to prevent this through the various amendments, but if they are not adhered to and enforced then the Constitution is dead.

Resolutions of this nature are currently being considered in over 30 states and many are garnering strong bi-partisan support. Some have passed and others will be passed.

Mississippi’s resolution was drafted with the aid of my colleagues in the house and our legal counsel.  It was designed to reflect the diverse nature of this membership and not to be inflammatory or too demanding.  This resolution is designed to reinforce the principle of limited government that protects us from an ever expanding federal government.

We have seen the federal government continuing to encroach into our every day lives from dictating how we teach or children, funding federal initiatives that many believe to be immoral, over regulating and taxing our citizenry, meddling in our personal lives and interfering with the affairs of our State.

Mississippians and our fellow Americans have made it very clear on April 15th that we are not willing to let our government dictate every aspect of their lives from a fact made very clear by the thousands who turned out to protest the government.

The federal government has proven, time and time again, they can’t manage their own affairs so why we would we let them manage our companies, our schools, our businesses and our families.

I’m asking this House on behalf of many Mississippians to reaffirm our rights as a sovereign and unique state to prevent the federal government from continuing to grow unchecked and illegally assuming powers reserved by the Mississippi legislature.

Let us pass this resolution, send to the Senate for concurrence and then send a clear message to Congress and the President.

Steven Palazzo is a member of the Mississippi State House of Representatives.  He was first elected in 2007.  You can contact him here.

“Some men think the Earth is round, others think it flat… But, if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? … NO.”

When Robert Bolt wrote that truism in his play A Man For All Seasons, his protagonist, Thomas More, was attempting to persuade the jury at his trial for high treason that all governments have limitations, and that the statute he was accused of violating was beyond Parliament’s lawful authority to enact. Sir Thomas was there appealing to the natural law as well as to the common sense of his jurors: The government can’t change the laws of nature. As we know, he fared no better than those who today argue that Congress is not omnipotent, has natural, moral, and constitutional limitations on its power, and every day fails to abide them.

Jefferson wedded the natural law to American law in the Declaration of Independence when he wrote that our rights are “inalienable” and come to us from “Our Creator.” Not only does federal law recognize that, but the whole American experience recognizes the natural law as the ultimate source of our freedoms and as a restraint on the government. Thus, the traditional panoply of American rights is ours by birthright and cannot be interfered with by an act of Congress or order of the president, but only after due process.

Two of those rights are speech and contract. A law enacted by Congress punishing speech (such as the Patriot Act provision that declares to be felonious speaking about the receipt of certain search warrants) is no law at all, since the law itself violates the natural right to speak freely, which is expressly protected in the Constitution. The Framers fully understood this as they wrote in the First Amendment: “Congress shall make no laws … abridging the freedom of speech.” I have italicized the word the to make my point. The framers accepted the natural law premise that freedoms come with and from our humanity. The freedom of speech obviously preexisted the constitutional amendment insulating it from government abridgement, and the Framers’ use of the article the reflects their unmistakable acceptance of that truism.

Similarly, a law changing the terms of a private contract is no law since it violates the natural right to make binding agreements. The Framers knew that as well. The Constitution specifically forbids the states and, by requiring due process and expressly forbidding taking property without just compensation, the federal government, from “impairing the Obligation of Contracts.” This, too, is a personal natural right that pre-existed the constitutional clauses that bar the government from interfering with it.

The Constitution sets forth just 17 discrete delegated powers on matters like currency, interstate commerce, the post office, the judiciary, and national defense. The Constitution also interposed two precise brakes on all federal powers: The Ninth and Tenth Amendments together state that the powers not enumerated in the Constitution as given to the federal government are retained by the people and the States.

The whole purpose of the Constitution is, was, and has been to define the government, to impose restraints on the government, and to guarantee personal freedoms. It specifically diffused power between the States and the central government and, within the federal government itself, it separated powers among the three branches.

It is elementary to state that the Constitution mandates that Congress writes the laws and decides how to spend tax dollars, the president enforces the laws as Congress has written them, and the courts interpret the laws as they have been written and enforced to assure their compliance with the Supreme Law of the Land.

As elemental as this sounds, it is hardly recognizable today. After 230 years, we have come to a point where a president declines to enforce laws he has himself signed, directs his Treasury Secretary to make laws interfering with private contracts, and signs executive orders that invade privacy, restrict speech, and appropriate property. Today, we have a Congress that delegates to the president its power to spend taxpayer dollars and money borrowed in the taxpayers’ names, has written laws regulating the air you breath, the water you drink, the words you speak, and relieving the persons with whom you have contracted or to whom you have loaned money from complying with their agreements. And our courts from time to time have raised taxes, run prisons, re-cast the boundaries of school districts, and declined to right obvious constitutional wrongs committed by the other branches.

The oath to uphold the Constitution that everyone in government takes, though solemnly delivered and publicly sworn to, like an oath to tell the truth in Court, is simply not taken seriously. Notwithstanding the plain language of specific grants and general restraints, notwithstanding a careful compromise between the Hamiltonians who wanted all power to be in the federal government and the Jeffersonians who wanted all power in the States, and notwithstanding our inalienable rights from our Creator, the federal government today simply recognizes no limits on its power.

But the Constitution is the Supreme Law of the Land. We will have chaos if those in whose hands we repose it for safekeeping intentionally violate it with impunity. A government that violates its supreme law becomes arbitrary, and arbitrary rule becomes authoritarian, and authoritarian rule will trample our freedoms. Just six weeks into its four-year term, the Obama administration and its allies in Congress, just like the Bush administration and its allies, have acted like they never heard of the Constitution. They have attempted to control salaries of private banks, change the terms of private mortgages, enter the marketplace by nationalizing banks and the world’s largest insurer, and investing taxpayer dollars in companies whose products consumers reject and investors eschew. This is theft of liberty and theft of taxpayer property.

Is freedom a reality or a myth? Are the rights guaranteed in the Constitution real or just a pretense? Isn’t the whole purpose of government in a free society to uphold rights rather than interfere with them? If the answers to these questions are no longer obvious, it is because we have a central government whose only self-acknowledged limitation is whatever it can get away with.

Andrew P. Napolitano [send him mail], who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.

Copyright © 2009 Andrew P. Napolitano

The interview runs just under 18 minutes, and you can load the audio by clicking the play button below:
[audio:http://www.tenthamendmentcenter.com/wp-content/uploads/2009/04/dori-monson-rob-natelson-041709.mp3]

Here’s a few recent articles that Professor Natelson has contributed to the Tenth Amendment Center:

• The Enumerated Powers of States
• The Constitution: A Question of Interpretation

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.

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

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

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

It reads as follows:

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

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

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

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

Federal versus state powers

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

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

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

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

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

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

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

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

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

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

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

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

The 1937 constitutional revolution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright © Future of Freedom Foundation

If you haven’t seen it yet, Rep Michele Bachmann questioned Tim Geithner and Ben Bernanke on 03/25/09 and took a position rarely seen in Washington DC.  In short, her position is that which is enshrined in the 10th Amendment – “Where in the Constitution are the Treasury and the Fed given such powers?”

Bachmann: What provision in the Constitution could you point to, to give authority for the actions that have been taken by Treasury since March of 08?

Geithner:  Oh, uh, the Congress legislated in the emergency economic stabilization act a range of very important new authorities..

Bachmann:  Sir, in the Constitution.  What in the Constitution could you point to, to give authority to the treasury for the extraordinary actions that have been taken.

Geithner:  Every action that the treasury and the fed and the FDIC is….been using authority granted by this body…by the Congress.

Bachmann:  And in the Constitution, what could you point to?

Geithner:  Under the laws of the land, of course.

Bachmann:  And if I could move to the federal reserve chair, if you could point to what provision in the Constitution that would give authority to the federal reserve – this has been over 10 trillion dollars that we’re talking about.

Bernanke:  I don’t know where 10 trillion dollars comes from.  The congress has the right to authorize funds, which is what they did in the TARP program, and they have given us in the 1930s…they gave the federal reserve the power for emergency lending as a means of addressing financial crises which is what we’ve done.

Bachmann:  And to the federal reserve chair – Do you believe there are any limits on the authority that the Federal Reserve has taken since last March…of 08?

Bernanke:  The loans we make have to be fully secured and collateralized.  We have practical limits in terms of our ability to manage monetary policies.  So there are obviously limits. We have reported extensively to the Congress on all the actions we have taken, and the actions we’ve taken have been solely and entirely for the purpose of protecting the American economy from the effects of financial collapse.

“Every school child in America should be required to read the Bible.”

At that point, I stopped clapping for Patrick Buchanan, who was speaking in Kansas City during his failed 2000 presidential bid. The government shouldn’t force people to read books, even the Bible.

There is some truth to the liberal insult that conservatives want to create a Christian theocracy. Social conservatives tend to overemphasize religion when talking about social issues like abortion and gay marriage.

People who support limited government are turned off by the Republican Party because of the religious overtones. They don’t want a government run by preachers.

Religious right preachers sound silly when they proclaim that natural disasters are a result of God’s wrath over abortion and gay marriage. A more sound explanation for opposition rests in the distinctly Western idea of federalism.

Prior to Roe v. Wade, New York, California, Colorado and Hawaii had legalized specific abortion procedures. The plaintiff, Norma McCorvey, sued to have an abortion in Texas, a state that did not allow the procedure.

Abortion is not an inalienable right guaranteed in the U.S. Constitution. The Tenth Amendment requires that this issue be solved by state governments.

The U.S. Supreme Court is supposed to interpret the law, not create it. By legalizing abortion across the country, the court overstepped its boundaries by taking on the role of the legislative branch.

This dangerous precedent of judicial fiat has spilled over into state supreme courts. The Massachusetts Supreme Court forced the Massachusetts legislature to recognize gay marriages in 2004.

Not to be outdone, the California Supreme Court invented the right for Californians in 2008, despite a previous statewide vote defining marriage only between one man and one woman. California voters overturned the court in November by approving a state constitutional amendment barring future gay marriages in the state.

That won’t be enough to stop the runaway California judiciary. The same court is reviewing case law to find any reason to once again overturn the will of the people.

The Founding Fathers did not create a system of government that gives judges the right to trump the will of the majority. A vote of the people should be worth more than the printed ballot paper.

The biggest worry isn’t the one percent of Americans who voted for Buchanan who want a Christian theocracy. It’s the vast array of leftwing politicians, activists and donors who want to create a judicial monarchy.

The purpose of law is to protect the rights of individuals against the excesses of the state. An oppressive judicial system punishes individuals by taking away their freedoms, starting with the right to vote.

Sensible people across the political spectrum can support a return to federalism by allowing citizens in each state the right to determine social issues. Some states will legalize marijuana and prostitution while others will ban abortion and gay marriage.

Those who don’t like the laws can move to a different state. That’s a much better system than one where the laws for the entire country are re-written after every judicial selection.

Ryan Cooper lives in Springfield. He can be reached at ryankcooper@gmail.com.