by Rob Natelson

Two years ago, I posted an item on the Tenth Amendment Center website entitled, “It’s the People’s Right.” My point was that federalism was not created primarily for the benefit of the states or state officials, but for the protection of individual liberty.

I didn’t invent this argument—many others have recognized that it is the better reading of the ratification-era record. Among those was Chief Justice John Marshall, himself a leading ratifier.

But my post elicited some grumbling among advocates of the traditional “states’ rights” view of federalism. Generally these are folks who believe (based mostly on post-ratification evidence) that the Constitution was not a grant from the people but a mere “compact” among the states.

Now, however, the U.S. Supreme Court has unanimously and resoundingly adopted the “people’s right” view in one of the best Tenth Amendment decisions to come along in years.

In Bond v. United States, the Court held that a person prosecuted under a federal criminal statute may defend himself by showing that the statute exceeds the federal government’s enumerated powers, and therefore violates the Tenth Amendment.

There is no need for a state to intervene to defend its own interests under the Tenth Amendment. A threatened individual can do it alone.

As the opinion points out, federal political power derives from the people, not from the states. At the Founding, the people, acting through state conventions, divided political power among different sets of agents—state officials for most purposes, federal officials for enumerated purposes.  State officials certainly benefit from the boundaries on federal power, and accordingly have standing to challenge federal actions outside those boundaries (as most states are doing in response to Obamacare). But the primary beneficiaries of federalism are the people.

The court also applied several other doctrines that are accurate from a strictly originalist point of view:

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(1) A treaty can enable Congress to adopt some legislation that would be outside its scope in the absence of a treaty.  This is because authority to make treaties, and to pass necessary and proper laws in execution thereof, are themselves enumerated powers.  (I don’t particularly like this result, but it appears to be what the Founders had in mind–see The Original Constitution: What It Actually Said and Meant).

(2) The Treaty Power is given to the President-and-Senate, not to Congress, but Congress can implement treaties under the Necessary and Proper Clause.  As the court said “The ultimate issue of the statute’s validity turns in part on whether the law can be deemed ‘necessary and proper for carrying into Execution’ the President’s Article II, §2 Treaty Power. ” In other words, if the federal criminal statute is valid, it must be so under the Necessary and Proper Clause as applied to the Treaty Power.

(3) The court avoided mentioning any possible reliance on the sadly-overused Commerce Power, and thereby appears to have indirectly reinforced United States v. Lopez, the 1995 decision that finally put some boundaries on congressional use of the Commerce Power to enact criminal laws.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at

Rob Natelson