by Ken Ivory

In light of the wave of extra-constitutional actions taken by both parties in Washington over the past few years (e.g. Bush years: individual stimulus checks, Medicare Part D, Bear Stearns pseudo bailout, Fannie/Freddie bailout, TARP; Obama years: Stimulus, Cap and Trade, unlimited Fannie/Freddie bailout, GM nationalization, Bank nationalizations, residential real estate nationalization, healthcare bill with student loan nationalization rider, etc.) it begs one to ask with respect to their constitutional authority for these actions: Are they all drunk, or just stoned?

None of the legislation or approval for these federal intrusions into our economy and our daily lives can be found in the plain language of the enumerated powers delegated by the States to the federal government in Article I, Section 8 of the Constitution. Not to be deterred, however, both parties in power have relied on their own sweeping interpretation of the so-called “Commerce Clause” for the proposition that federal power is virtually unlimited. However, Washington did not always so brazenly disregard the intentional limits placed upon it by the states in the Constitution.

In 1917, when Congress sought to regulate the “manufacture, sale or transportation of intoxicating liquors” in and throughout the United States, it did not merely assume that it had the power to do so under the so-called Commerce Clause. Recognizing that the several States did not delegate such sweeping regulatory powers to the United States by the Constitution, Congress proposed, and ¾ of the states duly ratified, the Eighteenth Amendment to the Constitution, which provides as follows:


Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.

Section 1. 
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.
 The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.
 This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Only after ratification of the 18th Amendment did Congress have (and only then did Congress itself recognize that it had) the constitutional authority to enact the National Prohibition Act. The 18th Amendment was later repealed in 1933 by the 21st Amendment.

Just 20 years after Congress previously acknowledged that it had no constitutional authority to regulate “the manufacture, sale, or transportation of intoxicating liquors” in and throughout the United States, in 1937, Congress passed the Marihuana Tax Act regulating in and throughout the United States the “importation, manufacture, production, compounding, sale, dealing in, dispensing, prescribing, administering and giving away of marihuana” as a matter of “tax policy.”

The Marihuana Tax Act levied a token tax of approximately one dollar on all “buyers, sellers, importers, growers, physicians, veterinarians, and any other persons who deal in marihuana commercially, proscribe it professionally, or possess it.” However, the true criminal regulatory nature of the Act was belied by the fact that the nominal tax and registration requirements of the Act where subject to federal criminal penalties in 1937 of up to $2,000 and five years in prison.

The Marihuana Tax Act was passed with no amendment to the Constitution, nor does there appear to have been any discussion that Congress may not have constitutional authority to regulate nationally what had been the sole purview of the states for 150 years. Congress merely assumed unto itself powers that were never delegated to it by the Constitution. (The Marihuana Tax Act was superseded and expanded in 1970 by the Comprehensive Drug Abuse Prevention and Control Act – again, without amendment to the Constitution).

In this period of the late 1930s, Congress, the Roosevelt Administration, and its newly packed Supreme Court, through a host of acts and legislation, neutered the Constitution by their own interpretations of the so-called “Commerce Clause”, “Necessary and Proper Clause” and “General Welfare Clause” in a manner as to render meaningless what had been for 150 years the universally acknowledged limited grant of authority by the States to the federal government. The strict constitutional limits on Washington’s regulatory authority had been so generally recognized just 20 years earlier that all in Washington conceded that a constitutional amendment was required in order to purport to have authority to regulate a product such as alcohol in and throughout the United States.

It would appear that the economic exigencies of the Great Depression and then the national crisis of World War II hindered the States from acting at the time to check these constitutionally unauthorized actions of the federal government. By the time the Second World War had drawn to a close, this departure from constitutional principles in one instance had become “precedent for a second; that second for a third; and so on, till the bulk of the society [had been] reduced to be mere automatons of misery, to have no sensibilities left but for sin and suffering.” –Thomas Jefferson.

Fast forward to 2010. By the hollow incantation of the so-called “Commerce Clause” congress and administrations over the past 30 years have acted to regulate virtually every aspect of American’s lives. Today, the federal government has nationalized, or are in the process of nationalizing, healthcare, student loans, residential real estate through the bailouts of Fannie Mae and Freddie Mac, automobile manufacturing, insurance and energy, all without so much as the slightest reverent pause to consider whether it has constitutional authority to do so.

Where will the federal exercise of power ever end? In the early 1900s, as power-drunk as Washington ever was, it recognized that its authority under the Constitution was not unlimited, even with respect to regulating alcohol in a manner that by comparison would seem benign today. We now live in a world where Washington acts in a power-intoxicated stoned state usurping any power it wishes in the manner of its 1937 Marihuana Tax Act, ignoring the once-acknowledged, clear constitutional limits on federal authority to regulate matters nationally that had been reserved to the sole purview of the states for the first century and a half of the existence of this nation as a constitutional republic.

It seems clear that Washington today is constitutionally stoned. Only a return to the constitutional balance of federalism — of strong, sovereign states that check the overreaching intrusions by the federal government — will restore the principles of liberty and prosperity that made this nation the light to the world. Only when states, and their sovereign citizens, compel the federal government to restrain its actions to the specifically and plainly delegated authority under the Constitution (as may be duly amended under Article V of the Constitution), will we again regain the “liberty in law” that is the foundation of our great republic.

It is up to each one of us to teach our friends and neighbors and to give our courage to our state representatives in order to shake off 80-plus years of a federal government constitutional stupor and return to the inspired fundamentals of our boasted Constitution.

Cross-Posted from the Utah Tenth Amendment Center

Ken Ivory is a small business and estate-planning attorney in West Jordan, Utah and a life-long student of the Constitution, American history, and international political economy. Ken is running for the Utah House of Representatives this year in order to “secure the blessings of liberty to ourselves and our posterity.” You can find more information at You can also contact Ken at

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

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