In a recent post, the progressive website ThinkProgress attacked Utah Republican Mike Lee over comments he made regarding the constitutionality of federal child labor laws. In his remarks, Lee used federal child labor laws and the case against them in Hammer v. Dagenhart 247 U.S. 251 (1918) to illustrate the original meaning of our federal system and the distinct spheres of power occupied by federal and state governments under that system. In their attack, ThinkProgress, while accurately quoting the words of Sen. Lee, blatantly ignores history and turns to rhetoric in making a political argument.

The issues in the Hammer case revolved around a federal statute, passed by Congress, that prohibited goods from being shipped in interstate commerce if the business producing those goods had utilized child labor within the previous thirty days. Congress, by including the interstate commerce language, attempted to bring the statute within its constitutional grant of power. But the Supreme Court disagreed, holding that despite any “interstate” nature, the regulation of labor occurring entirely within a state was rightfully under state, and not federal, control.

When Hammer was argued and decided, the United States was emerging from the Gilded Age of the late 19^th Century when the United States experienced the largest increase in economic and population growth in its history. The legal and political culture of the late 19^th Century largely supported this growth admittedly by largely ignoring the well being and health of workers of all ages. As the 20^th Century emerged and the United States became a more industrialized economy, the rights, needs, and concerns of middle and lower class workers garnered more attention from the legal and political establishments. One outgrowth of this increased attention was concern about the moral and social implications of child labor.

That child labor was increasingly being seen in a negative light is reflected in the dissent of Justice Oliver Wendell Holmes in the Hammer case, where he refers to “the evil of premature and excessive child labor.” In this case, Justice Holmes was willing to rule with reasoning that drew on popular sentiment. The majority of the court, however, chose to rule with reasoning that relied on the plain meaning of the commerce clause and the Tenth Amendment, which left the regulation of labor conditions to the states and their police powers.

Of course, it would be naïve to ignore the fact that Hammer, as well as other Supreme Court decisions during this era, were influenced in part by political pressures. The justices of the Supreme Court are nominated and confirmed by politicians, and many of the justices, especially during this period, were nominated for their political loyalties just as much as for their legal brilliance. But the final question that one must decide is “Did the Court decide correctly?” In Hammer the answer is unquestionably yes, not because child labor was good, but because the Constitution, if it and its language is to mean anything at all, must be taken at face value.

This is obviously the position taken by Senator Lee: That the language of the Constitution has a plain meaning and our decisions about the power of state and federal government must be controlled by the plain meaning of that language. The editorialists at ThinkProgress, however, disagree, instead focusing on the immediate results of judicial fiat by taking the traditional progressive position that ends justify means.

Even this position, though, is ostensible when they disagree with the ends. Like other progressive media, ThinkProgress is on record opposing the executive overreaches of President Bush and his ambitious domestic anti-terror policies. The ends of those policies were good, on their face – to protect Americans against the “evil” of murderous terrorists. Not that I agree with the means to those ends. I, too, am on record opposing the unconstitutional policies of President Bush. But like Senator Lee hopefully is, I am a “radical tenther” who supports Constitutional faithfulness, every issue, every time.

The “radical tenther” remark draws attention to the simply rhetorical attack that ThinkProgress launched in this article. Because Senator Lee drew attention to the Hammercase and constitutional issues about New Deal politics, ThinkProgress jumps to the conclusion that “in Mike Lee’s America” we’d still have segregated lunch counters, low wages, and no healthcare or retirement security, simply because the Constitution prohibits those powers to the United States government. This rhetorical argument links to another article attacking “conservative” views on the U.S. Constitution where tenthers, textualists, and strict constructionists are accused of implicitly supporting racial and gender discrimination, elimination of the U.S. Dollar, and child labor while implicitly opposing minimum wages, education, and popular election.

The linked article implores others to “tell the truth” about their views on the Constitution. Okay, I’ll bite.

Attacks on the Constitutional validity of minimum wage laws, judicial decisions about racial and gender discrimination, federal funding of education, and modern monetary policy are well-founded in the text of the Constitution. There is no constitutional authorization allowing Congress to set a minimum wage. Most of the judicial decisions regarding discrimination were based on stretched, unprecedented readings of the commerce clause that had no basis in history or common law. Education isn’t even mentioned in the Constitution because it was not considered a concern of the national government when the Constitution was written. And our current monetary system based on paper money with no backing is expressly prohibited in the Constitution.

That’s the truth.

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But it’s also the truth that recognizing a lack of Constitutional authorization for these acts is not the same as opposing the policies. Saying Congress has no authority to regulate wages is not the same as saying wages shouldn’t be regulated. Questioning the legal reasoning in discrimination cases is not the same as agreeing with racial or gender discrimination. Recognizing that there is no constitutional authorization for the Department of Education is not the same as saying education shouldn’t be publicly funded. And, questioning the constitutionality of our current fiat money system is certainly not the same as calling for the abolition of American currency.

There, I did it. But now it’s time for ThinkProgress and other like-minded groups to do the same … tell the truth. Admit that you attack principled views of Constitutional interpretation for strictly political reasons. Admit that you’re unwilling to have a debate on the merits of one style of Constitutional construction over another. And admit that you’re willing to abandon Constitutional language when it suits your political purposes and later strictly construe the same language if it so suits your political purposes.

I, and other “radical tenthers” take another, more principled, reasoned position: Constitutional loyalty. Every issue, every time without regard to political outcome.

Roger Prather [send him email] is the Communications Coordinator for the Massachusetts Tenth Amendment Center.

“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 Tenth Amendment of the U.S. Constitution.

Like a muscle that atrophies when unused, the power of the U.S. Constitution also withers when its meaning is lost on the people.  And, sadly, for many people its meaning most certainly has been lost.

Today, our Federal government illegally conducts; a national take over of our health care, illegal search and seizure at our airports, a seemingly endless use of your tax dollars to prop up failing businesses, and much more.  If people were to view the Constitution properly, as an enumeration of powers delegated to the federal government, one would be hard-pressed to find a day go by without serious Constitutional violations.

However these illegal intrusions are not root of the problem facing our lives today but are instead only symptoms of a much greater sickness of “ignorance” that has infected the American people. The only cure for ignorance is education.

Enter Michael Boldin and the Tenth Amendment Center.

Or, as Chuck Norris put it in his Human Events and TownHall column last year:

“I would encourage you to go to the Tenth Amendment Center and learn more about your 10th Amendment rights”

Established in 2006, the Tenth Amendment Center has been leading the charge to re-educate the American public on the meaning and importance of decentralization as a path to liberty – which is just what the Tenth Amendment affirmed in the U.S. Constitution.

Cited regularly as a resource by media and grassroots sources from the left, right, and center – including Glenn Beck, the Associated Press, Lew Rockwell, Reuters, Campaign for Liberty, and many others – along with having twenty three thousand supporters via facebook, the Tenth Amendment Center is a trusted member of our freedom community.

With more than two dozen State and Local TAC chapters around the country, and many more to come in 2011, the Center also works with state legislatures and grassroots organizations alike to reinvigorate the people’s understanding and practice of the principles held within the Tenth Amendment, it being the greatest check and balance on Federal power that exists.

During the second half of 2010, I had the good fortune to meet and get to know Michael Boldin personally.  After seeing first hand his driven dedication, passion, talent and (perhaps most importantly) his results, I personally rank his efforts and initiatives, via the Tenth Amendment Center, as some of the most important in our movement.

That’s why today I’m writing you to ask for your help – help through your participation in a money bomb of support for this very important cause – our cause, liberty!

On January 10th and 11th, and in commemoration of Thomas Paine’s great work “Common Sense,” we’ll be holding a mass fundraising day to help support and nurture the work of the Tenth Amendment Center. You can pledge to participate directly at the moneybomb website at www.CommonSenseMoneyBomb.com or via the facebook event here.

As Ron Paul has reminded us on many occasions, while elections are important parts of our political process, it is the power of ideas that truly shape and set the foundations of nations. Now that the elections are over, let’s take some time to get back to the fundamentals, let’s bring back the Tenth Amendment!

And, most importantly, lets cure this nation of its ignorance and apathy until the Federal government is penned back into its box and properly muzzled as it should be.

Please take a moment to pledge now directly at the moneybomb website at www.CommonSenseMoneyBomb.com or via the facebook event here. I look forward to participating with you on January 10th and 11th.

Sincerely,

Trevor Lyman

Trevor Lyman [send him email] is a political activist and one of the originators of the Money Bomb concept that broke funraising records in Ron Paul’s 2008 presidential campaign. Visit his websites, breakthematrix.com, trevorlyman.com

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

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

How many ways can progressives distort and rewrite history?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There seems to be a bit of confusion of what it means to be a Constitutionalist or supporter of the Tenth Amendment (Both go hand in hand) and a Conservative. Let me explain my definition of both.

A Constitutionalist and Tenth Amendment supporter believe that the U.S. Constitution is arguably the greatest political document man could devise. Sure, the Articles of Confederation were also a great document, in fact the Convention delegates that gave us the current Constitution were technically meeting only to revise the Articles. With that said, we support the United States Constitution wholeheartedly and want those elected to Federal office to abide by it. Unfortunately, they stopped many, many years ago.

What does supporting the Constitution mean? Many people who call themselves “Conservative” have rebuked us for betraying conservative principles ie… Gun Rights, Abortion, Homosexual Marriage, Drugs and prayer in school to name a few.

If you are a federal office holder and  “Conservative”, you should always defend the Second Amendment, look to overturn Roe v. Wade, vote for the  Marriage Amendment and absolutely be in favor of the War on Drugs. This is what a Conservative is conserving, right?

What if I told you that the Federal government has no business what-so-ever getting involved in these issues? That the Bill of Rights is intended as a limitation on the power of the FEDERAL government ONLY, not the states, and that any federally elected person, conservative or not, that votes in favor of laws that interfere with these things is breaking their oath to support and defend the U.S. Constitution.

What would you say?

The Founding Fathers debated this issue quite thoroughly. There were many in attendance who wished to have us become a consolidated, national government. James Madison repeatedly tried to grant the federal government the power to negate all state laws. He was soundly defeated each time.

In the end we were given a Federal Republic that was made up of individual sovereign states. These states delegated limited and enumerated powers to the federal government. To be certain that there was no mistake, they had the Tenth Amendment added: “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.”

Couldn’t be much clearer – if it’s not in the Constitution, it’s left for the states or the people to decide.

Yet today, so called conservatives want the federal government involved in myriads of everyday-life activities. Take the Second Amendment for example. I am an avid gun collector and shooter. You will be hard pressed to find anyone more “Pro-Gun” than me.  I believe that the Federal government has no right to tell me if I can own a firearm or not. They have no right to dictate to my state or it’s citizens (unfortunately, they don’t need too) on whether or not I can own a machine gun, suppressor, high capacity magazine, bayonet or any other accessories. They have no right to tell me I can’t purchase a firearm from one state and have it shipped to mine without a federal license.

However, the Supreme Court and the Federal government also have no right to tell my state that they MUST  or must not allow concealed handguns or any other weapon. You see, the federal government must stay out of things that don’t concern them. The Second Amendment remember, is part of the Bill of Rights, which in turn limits the FEDERAL government ONLY.

Just imagine if all these rules and regulations were left where they belong, in the states. Granted, you may not like your states rules and regulations, here in the Peoples Republic of New York, they are horrendous. We are one of the greatest welfare states in the union. However,  I would much rather fight local politicians to have these laws overturned than have to fight against a politician from California or Massachusetts.

If you allow these laws in your state and don’t fight to repeal them, shame on you. You could always move to a pro-freedom state.

The same with Marriage. If the people of your state want to allow Homosexual marriages, which I am against on moral grounds, so be it. Either fight to repeal it or move. How dare the Federal government and Nancy Pelosi tell me and my neighbors that I have to have Homosexual marriage or not.

Abortion? Same thing, I am against it, however, if you are not willing to effect change in your own state, how dare you tell others how to run their lives. Prayer in school? If my neighborhood school wants to say a prayer each morning to thank God, who is some atheist in New Jersey to say we cannot?

How dare anyone  expect the federal government to act like a bully and force change in your neighborhood whether you want it or not. The Supreme Court? They once decided that African Americans were property! Yeah, I’ll trust their decisions.

The lesson here is simple. The federal government was delegated certain enumerated powers from the people of the several states. Everything else is left to those states to decide for  themselves. Whether they want school prayer, the death penalty, abortions, medical marijuana or machine guns.

True “conservatives” should be fighting to conserve these principles. We are all on the same side. We agree on most issues and fighting amongst ourselves only allows the Frankenstein Monster we call the federal government to run ram shod over our individual freedoms.

As Benjamin Franklin was reported to have said, “If we don’t hang together, most assuredly we will all hang separately.”

Rick Montes [send him email] is the state chapter co-coordinator of the New York Tenth Amendment Center

But rather than shame dissenters into silence with labels like “tenther,” the disdain shown by the political class and its sycophants for the Constitution has only heightened the growing tension between those in America who desire absolute central government, and those who still believe in the federalism and freedom of our founding.

Witness the charges leveled by Virgina attorney general candidate, Steve Shannon, during a recent debate against his opponent, Ken Cuccinelli, who has promised to protect Virginians’ freedoms by upholding the Constitution as it was written.

Which could mean refusing to enforce certain unconstitutional laws passed by the federal government.

From the Washington Post:

Shannon said that through history, Virginians who opposed federal law supported slavery, shut down schools instead of integrating them, prevented interracial marriage and sterilized mentally retarded people.

“When he’s talking about states’ rights, you have to understand the mistakes we have made in the past.”

This is a theme that has been echoed by many on the Left of late, and it represents an opening salvo in the brewing battle between state and federal power that will likely take center stage in upcoming election cycles.

But Steve Shannon and his ideological cohorts are either shockingly ignorant or being very selective in their version of American history. They seem to have chosen race-baiting over an honest discussion about the clear, albeit imperfect, connection between states’ rights and personal freedom.

The Tenth Amendment, states’ rights, and state sovereignty were invoked post-ratification as early as 1798 in response to the Alien and Sedition Acts, which were a direct affront to the constitutional freedoms of speech and association.

Thomas Jefferson himself made clear the relationship the framers envisioned between the federal and state governments when he penned the Kentucky Resolutions, one of the most liberating texts since the Declaration of Independence against those vile Acts:

Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their general government…

[W]hensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force…

[T]his government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but…each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

In other words, whenever there comes a question of constitutional authority, Americans should refer as final arbiter, not to the Supreme Court or the federal government’s inflated opinion of its own powers, but to the letter and spirit of the Constitution. If that fails, each party to this voluntary contract (read: the sovereign states) may decide for itself whether the terms of the agreement have been violated, and if so, what course of action to take.

Between 1798 and the start of the Civil War, there were a number of other instances in which states forcefully reasserted their constitutional rights under the Tenth Amendment, often using Jefferson’s own words. Many of those states were located in the North, where sovereignty was even cited as legal grounds to undermine slavery, through opposition to the (Lincoln-endorsed) federal Fugitive Slave Act.

Perhaps it truly is out of ignorance that Steve Shannon and others like him disparage the principle of states’ rights as defined by racial prejudice, despite overwhelming evidence to the contrary.

But even without a history book, they need look no further than California and the 12 other states that have passed medical marijuana laws in direct conflict with the federal Controlled Substances Act. Thanks to that defiance, hundreds of thousands of desperately sick Americans get access to relief that the federal government has denied them.

Or consider the Real ID Act passed by Congress in 2005. It has since been rendered null and void because more than 20 states exercised their sovereign rights in refusing to implement its patently unconstitutional provisions.

Clearly, America has enjoyed the benefits of dual sovereignty and states’ rights, not just historically but in the last decade, without dissolving into paroxysms of racial animosity.

Therefore it would seem that the logic of the Left regarding the supposed inherent bigotry of the states’ rights movement is flawed in the extreme.

Would they also hold that Islam itself is to blame for violence committed in the name of Allah?

Of course not. That violence is committed by people, just as past laws limiting the freedom of minorities were enacted by people (in the North as well as the South), and not by a political principle.

Leaders like Ken Cuccinelli have joined a growing movement by invoking the Tenth Amendment as it was written to protect individual freedom from the ravages of arbitrary power. Such principles are shared by all those who support a return to the decentralized, federalist government laid out by our Constitution.

These “tenthers” harbor no racist or oppressive motives. In fact, the modern states’ rights agenda is exactly and demonstrably the opposite. To imply otherwise is simply dishonest.

Americans should be proud of their federalist heritage, and they should defend it jealously. Constitutional federalism once changed the world, and, as the true source of America’s strength, it is the only well from which there can be any hope of drawing future greatness.

Josh is a proud “tenther”, freelance writer, and activist originally from the Washington, D.C. area.

As I learned when recently delivering a lecture, the 10th Amendment is getting a lot of attention. Tenthers — those believing the federal government’s authority should be strictly limited to the enumerated powers in the Constitution — are passionate. Their opponents are equally passionate.

One person asked me if Tenthers’ argument had any constitutional legitimacy. My answer was, well, yes.

The 10th Amendment simply 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.”

Since 1789, the major political question has been concerning the paradox of dual sovereignty: To what extent shall we be national and to what extent shall we be federal? To what extent shall the United States government be sovereign and to what extent shall a state be sovereign?

Historically, the 10th Amendment has been used to preserve regional particularism and resist centralization. During the 1850s, some Northerners used the 10th Amendment as a justification to ignore the Fugitive Slave Law, and after Lincoln was elected, some Southerners used it as an excuse to preserve slavery.

During the Civil War, some northern governors invoked it to resist Lincoln’s centralizing tendencies, while some Confederate governors, including North Carolina’s Zeb Vance and Georgia’s Joe Brown, used states’ rights arguments to resist Jefferson Davis’ policies, including conscription.

A lot of contemporary liberals don’t have much sympathy for the 10th Amendment, however. “This argument has been used to stop progress, and to not keep hope alive,” said commentator Alan Colmes. “If the tenthers had their way, there would be no Medicare, no Social Security, even no public education. How about Every Child Left Behind”

What a simplification!

The 10th Amendment does not prevent states from having public education or creating welfare systems — to name two examples. In fact, North Carolina had public schools during the antebellum era.

Although it has problems, TennCare, a government-operated medical assistance program, has existed in the Volunteer State since 1994. Again, the argument is whether such programs should be created or heavily controlled and directed by the national government.

Invoking 10th Amendment concerns about sovereignty is nothing new.

In 1788, North Carolina balked over ratifying the Constitution and relinquishing more of its power to a centralized government. It remained out of the Union for a year, and in many ways, acted as a quasi-nation.

In 1818, the Tar Heel State levied a tax on out-of-state banks doing business in North Carolina, and charged each branch $5,000. The state snubbed its nose at a national bank: The Bank of the United States.

In a truly federal government, regional particularism lives. Sometimes it can be ugly and immoral. Other times it showcases genuine progress. Sometimes the argument “It’s just the way things are done here” is good enough for me; everyone doesn’t have to think like me.

In a truly federal government, Massachusetts could allow same-sex marriages and bar the Ten Commandments from public displays. In a truly federal government, Alabama could display the Ten Commandments in state courtrooms and outlaw same-sex marriages.

Until State of Missouri v. Holland (1920), migratory bird hunting was regulated at the state level, and in a truly federal government, it would be so today. In a truly federal government, states would make laws concerning abortion, health care, and many other issues.

And in a truly federal government, these states would continue to trade with each other and join forces in times of national emergency.

As government becomes more centralized, and states relinquish authority, the powerful redouble their efforts to make others act (and believe) like them.

Originally published in CarolinaJournal.com – reposted here with permission of the author.

Troy Kickler [send him email] has been Director of the North Carolina History Project since August 2005. He holds an M.S. in Social Studies Education from North Carolina A&T State University and a Ph.D. in history from the University of Tennessee. His specialty areas are nineteenth-century U.S., Civil War and Reconstruction, African American, and religious history.

Here’s a few observations:

1. Turley is absolutely correct that “decades of precedent” in the courts oppose the view that the federal government is not authorized to enact a national health care plan. But, what he fails to point out, is that under the original meaning, intention and understanding of the Constitution – these kinds of powers would have been unthinkable. The court is, in plain English, wrong. Learn more here.

2. Neither the host nor Turley seem to have any clue about nullification – or its current efforts. Nullification has nothing to do with getting a positive ruling from the Supreme Court. It’s when a state passes a law simply refusing to implement a federal law. In fact, it has a long history in the American tradition. It’s been used to resist laws against free speech, fugitive slave laws, the use of the militia in war and more. Hardly “right-wing” at all. Learn more here.

3. Nullification has also been used quite recently – and effectively too. Approximately two-dozen states refused to implement the Bush-era Real ID act. And guess what – the courts aren’t needed, and neither is Congress. The law is a dead letter. Null and void.

4. Oh, and that pesky general Welfare clause. It doesn’t mean what they’re implying – at all. In fact, it was meant as a strict limitation on power. Here’s what James Madison had to say about it – “With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

If my choice is the opinion of James Madision vs Jonathan Turley, I think I’m safe going with Madison.

Here’s what I think is most important…What both Olberman’s stand-in and Professor Turley get wrong is this – the 10th Amendment Movement is not about asking politicians to follow the Constitution. It’s not about getting permission from the Supreme Court to exercise our rights. It’s not about going to the federal government at all. Those are all failed strategies.

This movement is about moving back towards Constitutional governance whether they want us to or not.

Whether it’s 20+ states nullifying real ID, or 2 states nullifying some federal gun regulations, or 13 states nullifying federal marijuana laws, or states nullifying a national health care plan, this is about state-level activism. And, if enough states do it, the feds can’t do anything to stop it.