For decades, using a tortured definition of “interstate commerce,” Congress has claimed the authority to regulate, control, ban, or mandate virtually everything – from wheat grown on one’s own land for personal consumption, to weed grown in an individual’s own home for the same purpose, to guns manufactured, sold and kept in state boundaries, and everything in between. And, unfortunately, the Supreme Court has largely condoned and even encouraged such reprehensible legislative behavior.

How can they justify this? According to leading Constitutional scholar, Rob Natelson, they make two basic arguments.

The first argument was spun during the New Deal by a University of Chicago law professor. (Too many law professors spend entirely too much time fabricating constitutional theories to promote big government.)

This professor argued that during the Founding Era the word “commerce” meant more than trade. Instead, he contended, “commerce” included all gainful economic activities. Hence Congress has a license to regulate the entire economy.

An even broader version of this theory was published more recently by a Yale law professor. He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

Both, however, are wrong – flipping the original meaning of the commerce clause on its head.

TURN THIS THING AROUND

In 2011, state legislative contacts close to the Tenth Amendment Center tell us to expect that a number of states will attempt to resist this federal overreach. The first? Virginia. Introduced – prefiled, that is – for the 2011 legislative session, is Delegate Mark Cole’s House Bill 1438 (HB1438), which:

Provides that all goods produced or manufactured within the Commonwealth, when such goods are held, retained, or maintained in the Commonwealth, shall not be subject to federal law, federal regulation, or the constitutional power of the United States Congress to regulate interstate commerce.

At first glance, a bill like this might not seem to be out of the ordinary, until one spends a little time thinking about how much of our current unconstitutional federal leviathan the feds have jammed down our throats while claiming “interstate commerce!” every single time.

From Obamacare to Cap and Trade to the Controlled Substances Act – and everything in between – there are literally countless examples of how the federal government claims the right to not only regulate, but control, prohibit, and mandate under its delegated power to regulate commerce – “among the several states.”

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THE COMMERCE CLAUSE

If, like any legal document, the words of the Constitution (and its amendments) mean today just what they meant when it was signed, then we must understand the original meaning of words in Article I, Section 8, Clause 3 of the Constitution – the “Interstate Commerce Clause.” It delegates to Congress the power to:

“regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

According to Constitutional scholar Randy Barnett, the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose. The original meaning of “to regulate” generally meant “to make regular” -that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make “prohibitory regulations.” “Among the several States” meant between persons of one state and another.

According to Constitutional scholar Rob Natelson, the commerce clause gave Congress power to regulate interstate commerce — not any “matters that have significant spillover effects across state lines.” The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the Federal government regulate any activity with interstate spillover. In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states.

Not included in this power to regulate commerce “across state lines” is the authority to regulate activites that are non-economic or solely INTRAstate, which the language of Virginia’s Instrastate Commerce Act addresses.

NULLIFICATION

Laws of the federal government are Supreme in all matters pursuant to the delegated powers of U.S. Constitution. When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are “unathoritative, void, and of no force” from the outset.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state’s citizens.

In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

When states resist, interpose, and nullify unconstitutional federal “laws” – this is not rebellion, it’s duty.

RECLAIMING INTRASTATE COMMERCE

A long train of improper judicial precedents and federal usurpations of power under Article 1, Section 8, Clause 3 are not supreme simply due to the fact they are outside the scope of power delegated to the federal government.

By introducing HB1438, Delegate Cole attempts to place Virginia in a position of proper authority while pressing the issue of state supremacy back into the public sphere.

In 1942 no state intervened or challenged the federal claim to regulate non-commercial intrastate activity in Wickard v Filburn. This landmark court decision claimed to give the federal government the power, under the guise of “interstate commerce,” to control the growing of a plant in one’s own backyard – and consuming it at home.

This ruling marked a reversal of precedent set over the course of more than 150 years where the federal courts had ruled against such loose interpretation. The federal government now claims authority – under the commerce clause – to control or ban what you grow and consume at home, to tell you how big your toilet can be, and that you can be fined for not purchasing a health insurance plan. Such powers are not what the founders and ratifiers gave Congress in the Constitution.

With the passage of a bill like HB1438, Virginia would become the first state to reject in one fell swoop the ludicrous and intellectually dishonest constitutional rationale that underpins so much federal activity, and reclaim the rightful authority to regulate commerce within its own borders.

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CLICK HERE to view the Tenth Amendment Center’s Model Legislation – The Intrastate Commerce Act

CLICK HERE – to view the Tenth Amendment Center’s Intrastate Commerce Act Tracking Page

The Campaign for Liberty has stepped to the plate big time in Virginia, getting out ahead of the feds and finding a sponsor for the Virginia Health Care Freedom Act, to be introduced in 2010.

The Act reads, in part:

Neither the Governor nor the Department of Health, the Department of Public Welfare or any other Commonwealth agency shall participate in the compliance with any Federal law, regulation or policy that would compromise the freedom of choice in health care of any resident of this Commonwealth.

Man, just copying and pasting that feels great.

Delegate Bob Marshall (VA-13) deserves credit for agreeing to carry this critical legislation. Now is the time for Virginians to start contacting their state representatives to inform them about the measure and ask for their support should ObamaCare make it out of the Senate.

Credit is also due to Delegate Charles Carrico (VA-5), who has agreed to carry the Virginia Firearms Freedom Act, which is similar to recent measures adopted in Tennessee and Montana.

In marked contrast to the health care “reform” legislation recently passed by the House, neither of these bills exceeds three pages.

This is great news for those in Virginia who still cling to the Constitution, but introducing these bills is just the beginning. Victory will require inexhaustible passion and energy since, as always, we must give our state legislators the courage to defend our freedoms.

And it will take political courage. Nancy Pelosi has already said that even if such measures pass at the state level, the federal government has the authority to impose its will upon the voters anyway. Then stick us with the bill, of course.

Try finding that one in the Constitution.

Thanks, but no thanks, Nancy.

Like the signs say: We’ll keep our money, guns, and freedom; you keep the change.

The following is excerpted from a speech given at a recent event sponsored by the King William Republican Committee

While I am an elected Republican, I want to try to address tonight’s subject from a bi-partisan position: as an American and a Virginian. I am also a constitutionalist and I believe in this great Union. My goal tonight is to help the residents of King William and surrounding counties, as an accountable elected official, educate and inform this community about those American doctrines of liberty and freedom rooted in Federalism and the nationwide efforts working to send a message to those who wish to retreat from America’s first and founding principles.

We are all familiar with the famous yellow Gasden Flag with the words DON’T TREAD ON ME. This flag in many generations has represented a patriotic anxiety about the direction of government. We are seeing more pop up every day. But we may not all know that The Gadsden flag is a historical American flag with a yellow field depicting a rattlesnake coiled and ready to strike. In 1775, the flag was designed by and is named after American general and statesman Christopher Gadsden.

Similarly, many Americans are uninformed of other noteworthy or seminal events which fashioned together our great nation from several and similarly great states.

An understanding, much less a working knowledge of the principle of Federalism, also interpreted as State Sovereignty under the 10th Amendment, eludes our general population as well as those who are elected to seats of government and political authority. Over the past 8 months and some could argue over the past year or even twenty years, the American people witnessed and unfortunately condoned an enormous consolidation of power and authority in the federal government.

This amassing of power was done in the name of national defense or economic security. Remember that Ben Franklin said “Those Who Sacrifice Liberty For Security Deserve Neither.”

But I believe that there is a movement which will save us from a 21st tyranny. Let me briefly review just the recent actions of the current Administration:

• President and Congress passed $787 billion stimulus plan.
• An Air Force One New York City Flyover Photo Op Cost Over $328,000.
• The Obama Administration is accruing recording breaking debt. May raised its deficit estimate for the year to $1.84 trillion
• The Budget Will Spend $3.4 Trillion Next Year.
• Estimates Place Cost Of President’s Health Care Plan At Over $1 Trillion Over The Next Decade with further deficit spending.
• A White House Official Said Congress’s Energy Tax Could Raise Two Or Three Times More Than The Original $646 Billion; Cap And Trade Could wind up being a $1.3 To $1.9 Trillion Energy Tax.

This amassing of debt will be visited on all of us and lead to even greater dependence on – and control in Washington without regard to how states wish to manage themselves. The “Stringy legs” concept employed frequently by Congress shows a disdain for how states and their people hope to self-determine in a free market.

But in many ways we get what we have asked for or at least let happen. A people’s apathy and the government’s self-indulgence have combined to eat away at the concepts expressed in the Tenth Amendment laid out by the Founders. Economist Walter Williams wrote that

The Founders petitioned and pleaded with King George to get his boot off  their throats. He ignored their petition and rightfully they declared a unilateral declaration of independence and went to war.

Today it’s the same story but it’s Congressional usurpations against the rights of the  people and the states that make King George’s actions look like child’s  play. Our constitutional ignorance, coupled with the fact that we’ve  become a nation of wimps, sissies and supplicants, has made us easy prey for Washington’s tyrannical forces. But that might be changing. There is a long overdue re-emergence of American’s characteristic spirit of rebellion.

This type of patriotic spirit begins with a desire to learn more about the origins of our republic. People are beginning to understand that much like the Second Amendment is designed to protect the citizen from the encroachments of the federal government, the Tenth Amendment stands in the gap for states (and their citizens) by saying 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.

Joseph Story, a Supreme Court Justice and a son of a member of the Sons of Liberty, in his Commentaries on the Constitution, 1833, said “… the state governments are, by the very theory of the constitution, essential constituent parts of the general government. They can exist without the latter, but the latter cannot exist without them.”

In Virginia’s American Revolution:  From Dominion to Republic, 1776-1840, the author‘s primary purpose traces Federalism from the mid-1760s inception of disputation between Virginia and the Mother Country down through the death of the last Virginia Founding Fathers in the late 1830s. He asserts that Virginia ratified the US Constitution under the express understanding that the powers of Congress would extend only to those that were, as Governor Edmund Randolph explained in the 1788 Richmond Ratification Convention, “expressly delegated.”

This idea of Virginia as primary and the central government (first the British, then the Continental Congress, then the Confederation, and finally the Federal Government) as secondary underlay the Revolution in Virginia and are reflected in the Federalist Farmer essays of the Anti Federalist papers attributed to Richard Henry Lee. Echoes of our current trend to serfdom – Federal Farmer, Antifederalist Letter, October 10, 1787

Besides, to lay and collect internal taxes in this extensive country must require a great number of congressional ordinances, immediately operation upon the body of the people; these must continually interfere with the state laws and thereby produce disorder and general dissatisfaction till the one system of laws or the other, operating upon the same subjects, shall be abolished.

Even the most ardent proponents of a federal government at that time, those who penned The Federalist Papers, advocated for the preservation of state sovereignty as necessary to the success of the nation.

“But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”
–Alexander Hamilton, Federalist No. 32

“The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.”
–James Madison, Federalist No. 45

Case law later expounded upon this fundamental principle of Federalism with respect to state sovereignty. Printz v. United States held that the federal system limits the ability of the federal government to use state governments as an instrument of the national government. But this traditional notion of federalism has devolved into “cooperative federalism,” where Congress creates new state programs by affixing certain conditions to the receipt of funding.

These acts may become so intolerable that long-term structural sustainability is in real question, and the ultimate danger is the erosion of the principles of federalism whereby Virginia and her sister states become, effectively, wards of the federal super state.

Based on this growing concern that Virginia may lose its priority role in the structures of our American republic, I introduced House Resolution 61 in the 2009 session. Resolutions honoring the 10th amendment stand in the tradition of Richard Bland, Thomas Jefferson, Edmund Randolph, Patrick Henry, Henry Lee, James Madison, and indeed virtually every other significant Virginia Revolutionary and/or Founding Father.

Its precepts may even be far older even than the Tenth Amendment, which according to scholars only made explicit that principle where Virginians were told what was already implicit in the US Constitution when they agreed to ratify it 221 years ago.

Over the past year, states around the country passed resolutions claiming sovereignty under the 10th Amendment and resolving to serve notice and to demand that the federal government cease and desist mandates that are beyond the scope of its constitutionally delegated powers. This movement in over 35 states demonstrates an imbalance and growing concern that the federal government is increasing its dominance over state policy affairs. Visit: legis.virginia.gov to read HR 61 which after several “whereas” clauses reads:

RESOLVES by the House of Delegates, That the Congress of the United States be urged to honor state sovereignty under the Tenth Amendment of the Constitution of the United States.  The Commonwealth of Virginia hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.  The Commonwealth by this resolution serves notice to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.  Further, the Commonwealth urges that all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding shall be prohibited or repealed.

Some may discount this act as merely political or posturing — that a resolution is just words. Just words… Well to quote our President during last year’s elections he said  “Don’t tell me words don’t matter. I have a dream’ — just words… ‘We have nothing to fear but fear itself’ – just words. We have nothing to fear but fear itself. Just words. Just speeches.” I would add just these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness

Our community and communities like ours around the state and nation must inspire others and it is our hope that with HR 61 these words will have a profound impact. In the words found on our Liberty Bell we must “Proclaim liberty throughout the land unto all the inhabitants thereof.”

I encourage you to visit my website at www.chrispeace.com and stay in touch with me and this committee to help me and my colleagues show support for the legislation in committee.   May god bless you and the USA

Delegate Christopher K. Peace represents the Virginia House of Delegates’ 97th District and serves on the prominent Courts of Justice, Health Welfare and Institutions, Science and Technology, and Finance Committees. The district spans parts of Hanover, Caroline, King William, King and Queen, Henrico, Spotsylvania Counties and all of New Kent County