Tenth Amendment Center

“Not all the treasures of the world, so far as I believe, could have induced me to support an offensive war, for I think it murder.” — Thomas Paine 

One of the many consequences of our current political climate, in which war seems to be almost endless, is that people are often driven to ask fundamental questions about the powers of war.

We must keep in mind that the Constitution was written under what’s referred to as “positive grant.” In short, this means that the only powers that the federal government can exercise are those specifically listed in the Constitution. Many of the founders were so concerned about this issue that they wrote the Tenth Amendment to put the concept of positive grant into writing.

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

It is here clearly stated that the United States Constitution rests on a strict enumeration of federal powers; if a power was not specifically given by the People, the federal government simply cannot do it.

Ever since the Korean War, Article II, Section 2 of the Constitution has been regularly cited as justification for the President to act with a seemingly free reign in the realm of foreign policy - including the initiation of foreign wars. But, it is Article I, Section 8 of the Constitution that lists the power to declare war, and this power is placed solely in the hands of Congress.

Article II, Section 2, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.

Alexander Hamilton supported this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.” Thus, under the Constitution, the President, acting without a Congressional declaration of war, is authorized only to repel invasion and sudden attacks.

Pre-emptive strikes and undeclared offensive military expeditions are not mentioned in the Constitution, and are, therefore, unlawful. Thomas Jefferson stated this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

In Federalist #69, Alexander Hamilton explained that the President’s authority:

“would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the legislature.”

James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:

“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”

TRANSFER OF POWER

For the last sixty-plus years, our nation has been involved in numerous conflicts and wars. Since World War II, our military has sustained nearly 100,000 deaths and over a quarter million wounded.

For over six decades, millions and millions of Americans have been dragged into battle, without a declaration of war from the representatives of the People, and with essentially no clear victories.

What has this led to? In matters of peace and war, Presidential rule has completely replaced the rule of law in the United States.

The Congress has relinquished its Constitutionally-mandated responsibility to declare war over and over, and, every time, the President has not done his duty in this situation, either. When one branch of government is in violation of the Constitution, it’s the role of one or both of the other branches to “check” it.

Thus, when the Congress illegally transfers the power to declare war to the President, it is the President’s duty to refuse that transfer of power. The president’s job would be to explain to the American people what was done, why it was unconstitutional, and demand that Congress live up to its oath. Unfortunately, the last 60+ years has not produced a single president who has refused such an unconstitutional transfer of power.

PERPETUAL WARFARE

The last time Congress declared war was on December 11, 1941; against Germany, in response to its formal declaration of war against the United States. This resolution was quickly accomplished with a statement that was well-under one page in length; yet it still clearly delineated who the enemy was, and what was to be done. Three days previously, and one day after being attacked at Pearl Harbor, Congress declared war on Japan with a similar clarity. Both actions resulted in a clear-cut military victory.

But, since then, things have been quite different.

President Truman gave us the Korean War without Congressional Declaration, and Presidents Kennedy, Johnson, and Nixon did the same in Vietnam. President Bush brought us an undeclared war in Iraq in 1991, which President Clinton continued with sanctions and bombing raids throughout his two terms.

In 1999, he also engaged us in a war with Yugoslavia without a declaration from Congress. In September 2001, Congress transferred to President Bush the power to fight whomever he determined aided the September 11th attacks, or harbored the culprits; its resolution did not even mention Afghanistan, although war has been waged by our military in that country ever since. And, in October 2002, Congress let Mr. Bush alone decide whether or not to attack Iraq; and, as we know he responded with a full-scale invasion.

Powerful people continually tell us that if Truman, Johnson, Clinton, et al, could initiate war without a Congressional declaration, then any current or future President could do likewise. Precedent now supposedly trumps the rule of law. But, the Constitution remains valid even after presidents violate it.

NOT JUST THE LAW, A GOOD IDEA TOO

There are many reasons why following the Constitution is not only within the law, but a good idea too.

The first goal of having Congress declare war was to ensure that the representatives of the states and the people would be the ones discussing matters of peace and war. This would, theoretically, create a greater climate of responsibility, and it seems that it may have done so to some degree. Since this constitutional clause has been ignored, the number and length of American wars has increased while the “success” rate has drastically decreased.

A Congressional declaration of war limits Presidential powers, narrows the focus of the action, and implies, or clearly stipulates a precise end-point to the conflict. When left in the hands of just one person, we can be assured that there is only one opinion on war. Conversely, the more people there are involved in making that decision, the greater the chance that the country will not get involved in costly, deadly and worthless wars.

Thus, as with so many other issues in government, the proper direction for the future is to demand that elected politicians uphold their oath and follow the Constitution.

The time has long since come for the U.S. Congress to abolish the Food and Drug Administration.

We’d like to think that FDA officials have only our health and safety in mind when they decide on what food or medicines they’ll allow us to buy. But, sadly enough, they’re as politically motivated as any politician in Washington.

Certain industries and corporations are rewarded, while many others are restricted, punished, or prevented from entering the marketplace. There is no such thing as a regulatory agency that is free from politics, which is all the more reason to keep the FDA out of our personal health care decisions.

FDA regulations have often prevented Americans from gaining access to new life-saving drugs. Examples of this include major delays in the marketing of drugs used to treat cancer, blood pressure, heart attacks, cholesterol, and strokes

People have suffered unnecessarily — or even died — with such problems as heart disease, depression, schizophrenia, kidney cancer, and epilepsy, just because FDA officials were afraid of the political consequences they would face if they made even a minor mistake.

What might be considered even worse than the intrusion on personal choice, the FDA, by its very existence, gives people a false sense of security. It cultivates a lazy and complacent population; people assume that a government stamp of approval means that drugs must be safe, and they don’t need to study them at all before consuming them.

But the track record for FDA-approved products hardly inspires confidence. In fact, far more Americans have died using approved pharmaceuticals than others, such as nutritional supplements. Not every product on the market will perform as claimed, and that holds true for the drugs approved by the FDA too.

For many years, the FDA wouldn’t allow aspirin makers to state on their product labels that aspirin thinned blood and could therefore save a person from dying if taken during a heart attack. They threatened them with fines or imprisonment if they published this important information on their products.

Also, natural health solutions are available for many diseases today but are not accepted by the FDA and in many cases prohibited by them. And this is not to mention the fact that under FDA supervision, an estimated one million Americans were never told they were given Hepatitis C-infected blood.

Another good example of the evils of the FDA was the Imclone scandal (yes, it’s the same Imclone that landed Martha Stewart in jail!). At first, the FDA rejected its drug for cancer treatment on the grounds that some of its research and testing procedures weren’t followed to the letter. A year later, after adjusting some procedures and getting their paperwork straightened out, the FDA approved the drug – the exact same drug they rejected previously.

What happened? It turned out that the drug was safe, and was safe right from the beginning, just like Imclone stated. But, did anyone at the FDA ever think of the number of people who may have suffered or died because they weren’t allowed access to this drug which had already undergone extensive testing? This is a drug that works like chemo-therapy, but with much less side effects. During that additional year of delay, countless people could’ve benefited from its use while the FDA was supposedly protecting them.

The problem, then, is clear. If the FDA keeps both bad information and bad drugs off the market, it also keeps both good information and good drugs off the market. The approval process has become so horrendously expensive that new life-saving drugs are either not brought to market or experience lengthy delays.

Because of this extensive process, the FDA is also directly responsible for high drug costs. Pharmaceutical companies often spend in the hundreds of millions of dollars to get a single drug to the market. Why? FDA rules make it that expensive. But, unfortunately, many drugs never get FDA approval, and drug companies naturally have to charge extremely high prices for their approved drugs to make up for these great losses. On top of it, big pharma companies end up spending massive amounts of time and money on lobbying so as to ensure that friendly “regulators” are hired, and that drug patent periods are as long as possible.

Much worse, the FDA does not permit U.S. citizens to reimport drugs that sell for anywhere from 30 to 300 percent less outside this nation’s borders. Such limitations keep prices high, and should be considered nothing short of scandalous. Pharmaceutical companies should not be allowed to profit from this government-enforced price fixing, but they do.

Why should you be forced to pay an artificially-inflated price for drugs, when the identical drug is available in Canada, Mexico, or Europe for just a fraction of the cost? To protect people from their own choices, the politicians prevent us from reimporting drugs at huge savings.

The mandate of the FDA is to protect American consumers, but this is based on the assumption that bureaucrats know what’s best for you. It’s based on the assumption that you are an idiot, and that you are unable to research what’s good and bad for you. It’s based on the assumption that you aren’t capable of making responsible choices for yourself. It’s also based on the assumption that all drug-makers and physicians are either unethical or criminal.

The answer is simple even if the solution is not. Get rid of this beast. There’s nothing in the Constitution which authorizes its existence anyway. It’s time to abolish the FDA.

Its current incarnation began just over a century ago, in 1906. Logically, that means that people in this country were able to survive without the FDA for much longer than it’s existed. We, like our ancestors, don’t need a centralized agency giving us rules, guidelines, and orders. We’re able to decide for ourselves what’s best for us. How? By word-of-mouth, doctor recommendations, third-party certifying organizations, by reading, or anything else that the FDA claims to be the sole provider of.

The real issue, though, is much deeper. It’s not just whether the FDA does a good job or not. It’s not just whether the FDA is politically motivated or not. It’s not just whether there’s a better system or not. The real issue is this; who makes the decisions for you – you or the government?

The politicians want us to believe that for every situation there is a government solution. But, in a free society, you get to decide what medical treatments or health supplements are right for you.

In abiding by the Tenth Amendment’s mandate for strictly limited government, all agencies not authorized by the Constitution must be abolished. Eliminating the FDA is not only legally required, it’s morally sound.

Getting rid of the FDA would allow you to make important choices according to your own beliefs and values. For the sickest of people, the opportunity to live in a free society such as this would not only be beneficial and just; it may be a matter of life itself.

Guest Commentary by Rep. Ron Paul

Last week, the House of Representatives acted with disdain for the Constitution and individual liberty by passing HR 1592, a bill creating new federal programs to combat so-called “hate crimes.” The legislation defines a hate crime as an act of violence committed against an individual because of the victim’s race, religion, national origin, gender, sexual orientation, gender identity, or disability. Federal hate crime laws violate the Tenth Amendment’s limitations on federal power. Hate crime laws may also violate the First Amendment guaranteed freedom of speech and religion by criminalizing speech federal bureaucrats define as “hateful.”

There is no evidence that local governments are failing to apprehend and prosecute criminals motivated by prejudice, in comparison to the apprehension and conviction rates of other crimes. Therefore, new hate crime laws will not significantly reduce crime. Instead of increasing the effectiveness of law enforcement, hate crime laws undermine equal justice under the law by requiring law enforcement and judicial system officers to give priority to investigating and prosecuting hate crimes. Of course, all decent people should condemn criminal acts motivated by prejudice. But why should an assault victim be treated by the legal system as a second-class citizen because his assailant was motivated by greed instead of hate?

HR 1592, like all hate crime laws, imposes a longer sentence on a criminal motivated by hate than on someone who commits the same crime with a different motivation. Increasing sentences because of motivation goes beyond criminalizing acts; it makes it a crime to think certain thoughts. Criminalizing even the vilest hateful thoughts–as opposed to willful criminal acts–is inconsistent with a free society.

HR 1592 could lead to federal censorship of religious or political speech on the grounds that the speech incites hate. Hate crime laws have been used to silence free speech and even the free exercise of religion. For example, a Pennsylvania hate crime law has been used to prosecute peaceful religious demonstrators on the grounds that their public Bible readings could incite violence.

One of HR 1592’s supporters admitted that this legislation could allow the government to silence a preacher if one of the preacher’s parishioners commits a hate crime. More evidence that hate crime laws lead to censorship came recently when one member of Congress suggested that the Federal Communications Commission ban hate speech from the airwaves.

Hate crime laws not only violate the First Amendment, they also violate the Tenth Amendment. Under the United States Constitution, there are only three federal crimes: piracy, treason, and counterfeiting. All other criminal matters are left to the individual states. Any federal legislation dealing with criminal matters not related to these three issues usurps state authority over criminal law and takes a step toward turning the states into mere administrative units of the federal government.

Because federal hate crime laws criminalize thoughts, they are incompatible with a free society. Fortunately, President Bush has pledged to veto HR 1592. Of course, I would vote to uphold the president’s veto.

From the Associated Press:

A year after warning America of its addiction to oil, President Bush is expected to renew concerns about energy security in his State of the Union address.

More…

Energy Secretary Samuel Bodman says the administration over the years has spent nearly $12 billion in developing new energy technologies. He cited the president’s $2.1 billion “advanced energy initiative” in the State of the Union a year ago.

The powers of the federal government are limited to only those specifically delegated to it by the Constitution. Those powers, under any circumstance, can not be expanded constitutionally by the government, no matter how worthy the cause.

Like police powers, most energy authority is based in the states.

As the Supreme Court recently affirmed in United States vs. Lopez, the Constitution establishes a federal government of enumerated, and thus, limited powers.

Nowhere in the Constitution is the federal government authorized to “achieve energy efficiency or diversity.” Other than the specific power of the federal government over federal territory, any power in those locations to regulate environmental affairs belongs to the states, as the 10th Amendment makes clear.

An accurate reading of the Constitution, therefore, brings much of the Department of Energy’s authority into doubt. Arguments based on the General Welfare clause to justify its actions are quite unfounded.

The General Welfare clause is not properly defined as allowing the federal government to do anything it wants to as long as Congress and the President thinks it’s for a common “good.” If this was the case, the founders wouldn’t have wasted their time writing the Constitution with a list of specifically enumerated powers in the first place!

As many of the founding fathers made quite clear, the General Welfare Clause was meant to confine the exercise of enumerated powers in the Constitution. It was not meant to be, of itself, the source for unlimited power for the government to care for the “common good.”

Consider these statements:

“Our tenet ever was… that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.”
–Thomas Jefferson

“With respect to the two 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.”
–James Madison

As for oil, and energy “policy” in general, the President’s proposals are absurd. Central planners in the DOE are to tell us what technologies are best for the nation, have the greatest promise, etc. Then, they start spending taxpayers’ money to determine if they can do a better job than markets in developing alternatives to oil. Our continued dependence on oil, coal, and the like, should make it quite clear that such central planning has done nothing more than prevent new technologies from emerging and becoming viable.

If the central government would’ve followed the 10th Amendment, and kept its hands out of energy decades ago, we might be in a much better situation than we are today.