by Bob Ellis, DakotaVoice.com

Federalism and Tenth Amendment state’s rights have been under assault since the days of FDR.

The federal government was created to serve the states and, in the words of James Madison, “to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.”   Under the Tenth Amendment,

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 astute constitutional student will recognize that there is no authority whatsoever under Article 1 Section 8 of the U.S. Constitution (the part of the Constitution which outlines the powers of the federal government) to create or administer a health care system. Continue Reading

Editor’s Note: In an effort to continually expand the Tenth Amendment Center as a forum for education and research, we are pleased to announce the second installment of our “publications” section. This paper, “The Enumerated Powers of States,” by Rob Natelson, is a fantastic resource for understanding the principles of delegated powers.

It was originally published in 2003 in the Nevada Law Journal.

Introduction:

“The most numerous objects of legislation belong to the States. Those of the National Legislature [are] but few.”
–Rufus King, at the Federal Constitutional Convention

In constitutional form, the federal government is one of enumerated powers, and all powers not enumerated are reserved exclusively to the states and the people. The federal government’s enumerated powers have been construed so broadly, however, that the modern student may be pardoned for asking if anything really has been reserved. Even forty years ago, Professor Lindsey Cowen could say “As things now stand, there may not be any powers which are ‘not delegated to the United States by the Constitution,’” and, of course, the federal government has grown a good deal since then. Over the past century, the power to regulate commerce has come to include the power to regulate agriculture, the power to tax has become the power to control inheritances, and the power to spend for the “general Welfare” has enabled the federal government to create programs to inculcate and educate, as well as for many other purposes.

The proffered legal basis for most of this expansion of federal power is the wording of the original Constitution. Subsequent amendment justifies relatively little of it. This fact, in turn, raises the oft-argued question of whether the powers granted the federal government in the original Constitution, especially as modified by the Ninth and Tenth Amendments, really encompass such subjects as agriculture, education, health care, and the like.

The drafters of the Constitution chose to enumerate the powers of the federal government but not, with a few procedural exceptions, the exclusive powers of states. However, that decision should not be understood as implying that exclusive state powers were narrow, but rather that they were vast. As the drafters explained, they had decided not to enumerate the states’ reserved powers for the same reasons they had decided not to include a bill of rights: first, the reserved powers were too extensive to enumerate; second, a discrete list would encourage the pretense that the federal government could act everywhere else.

On the other hand, if we did have an enumeration of exclusive reserved state powers, perhaps it would enable us to understand more precisely the scope of the granted powers. Such an enumeration also could shed light on basic principles of American federalism. For example, an enumeration might help us determine whether it is constitutionally true, as is sometimes claimed, that growing national economic interdependence justifies more expansive interpretation of federal powers. Put another way, an enumeration could help us determine whether the presence of externalities - spill-over effects - from one state to another creates a constitutionally defensible reason for further central control.

In point of fact, leading federalists left in the historical record some rather specific enumerations of the reserved powers of states. They offered these lists as part of the basis of the political bargain by which the Constitution was ratified. As such, these lists help us divine the actual meaning of such phrases as “general Welfare” and “Commerce . . . among the several States.”

Surprisingly, there has been almost no attention in the legal literature to the federalists’ enumeration of state powers for the benefit of the ratifying public. In this Article, I distill the essence of these enumerations for the modern reader. After doing so, I conclude that the listed items strongly suggest that a guiding principle of American federalism is a Coasean one: externalities and/or interdependence, without more, generally do not serve as constitutional justifications for further centralization.

CLICK HERE TO DOWNLOAD THE FULL PAPER
(Adobe Acrobat Required)

Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment. He is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning. He has written for some of the nation’s most prestigious academic journals and publishers. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal. He also edits the web page, The Scholarship of the Original Understanding of the Constitution, and collected and edited the material that forms the Documentary History of the Ratification of the Montana Constitution.

Copyright, Robert Natelson, Nevada Law Journal

by Wayne J. Barbarek

Although there may be problems, as in any industry, I cannot keep from wondering to what, or which, “system” everyone is referring.

There is all this talk of the “Nation’s” health care system; however, I fail to find where health care is a “national” object. There is nothing whatsoever in the Constitution suggesting it is among the certain enumerated objects of the “Federal” government, with the whole works of the Convention at Philadelphia making it more than obvious that it cannot be.

So, how can there be a “national” system for something that is unquestionably not among the certain enumerated objects that are delegated to the “Federal” government?

What is plain, though, rather than there being any kind of “national” system, there are certainly individual separate systems belonging exclusively to the several States — individual systems that the States have a constitutionally guaranteed right to establish or not establish, and to regulate or not regulate, as they see fit. Or, as they decide is appropriate for their individual and separate circumstances and interests.

What is also plain is that, no matter the alleged good intentions, good faith or urgency for a needed plan, and no matter the degree of passion or how great the numbers in its favor, until which time the necessary additional powers are constitutionally granted to the Federal Government, this remains their guaranteed right, individually and collectively within their separate societies made plain by the 9th and 10th amendments to the constitution of these united states.

Specifically, the Federal government has utterly no direct authority or jurisdiction whatsoever extending to those objects belonging exclusively to this Union’s member States any more than it has authority extending into any State in Europe; — and, whether or not anyone agrees, is irrelevant, for the plain truth is that Health Care, its industries, institutions, businesses, professions, education, licensing, wages, et cetera; are all among those objects belonging exclusively to the several States.

Not only does the authority of the Federal government not extend to such objects plainly belonging exclusively with the States, the undeniable fact still remains that the fundamental purpose of Union and its Federal government is not to be the source and facilitator of interferences and aggressions against them.

But instead, for the purpose of preserving them as separate independent sovereign societies; and, in so doing, meant to protect and preserve their Rights as the true sovereigns to decide separately and independently for themselves how the considerable remaining powers meant to be left with them shall be, or shall not be, exercised.

In other words, it is the absolute Right of the People of each State, independently of one another, to freely choose how they want to govern their separate society — to wit, how liberal and generous or how conservative and frugal it wants to be — without interferences and impositions from other member States or the Federal government.

And, in exercising those Rights of Freedom and Liberty, no State has a right, above all the Federal government, to “judge” and impose their will upon another just because that smaller society is, in their meager opinion, making inappropriate laws, not making desired laws or because it has customs, morals, habits or interests that are contrary to what they “think” or “believe” is appropriate and conducive to being an American State, even though its laws, customs, morals, habits and interests are not contrary to the Constitution.

So, what does this mean and how does it all add up as it pertains to the President and the controlling faction with which he is aligned?

As a Union meant to be of Laws derived from “true” construction and not of Men derived from forced construction, and as servants that are obligated by their required oaths to support the constitution of these united states, they have utterly no authority whatsoever to “judge” that which plainly belongs exclusively with the individual States; — nor do they have any authority whatsoever discussing, above all, proposing or promising to establish a National system, reform the several State systems made under their individual authorities or make health care a fundamental right using ordinary acts of legislation.

And, by arrogantly pursuing their current course, they make plain their intent to pervert the Constitution (according to the framers, an act tantamount to treason against these united states) and commit lawless aggressions against the States in utter defiance of their oaths and the Constitution.

In doing so, they are lawlessly encroaching upon and committing direct interferences into jurisdictions, authorities and objects belonging exclusively with the States by exploiting a temporary exigency to better excite the emotions and passions of the People so as to facilitate and hatch there repugnant schemes, perfectly timed so that on the spot, none can be, nor are they permitted to be, immediately refuted.

“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.” (Hamilton, fp. 33)

Wayne Barbarek is the author of Documents Illustrative™ V1.0c — a searchable database product containing the Journals of the Convention at Philadelphia and the Federalist Papers, which his company publishes and can be downloaded at http://www.documentsillustrative.com — helping to make it easier for today’s citizens to do that for which the original legislators preserved the Journals: “contradict false statements propagated about the Constitution”.

by Rob Natelson

There is an on-going debate about the extent to the First Amendment bars congressional campaign finance limits. That debate is important, but it doesn’t address a more fundamental question: What empowers Congress to regulate congressional campaign finance at all?

Remember that the Constitution gives Congress only the powers the Constitution lists. All other powers are reserved to the states and people by the Ninth and Tenth amendments. Continue Reading

Continue Reading

by Michael S. Rozeff, LewRockwell.com

As I read the many editorial columns and articles in support of Obama’s speech, I can see that many writers are very upset and emotional over criticism of Obama’s action. They also are clueless concerning the reasons why his address is unwelcome. They are name-calling. They are not bothering to mention, much less rebut, the reasoned objections of people like me.

I can at least articulate my reasons for objecting. Continue Reading

by Rob Natelson

During the Bush administration, many within the dominant culture expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.

Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.

But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans. Continue Reading

by Kody Dickerson

This is the fundamental concept of the role of the federal government:

“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.”

That’s the Tenth Amendment to the Constitution.  If observed and respected to the same extent that the First Amendment is, for example, it alone would go most of the way to guaranteeing our basic freedoms, including those enumerated in all of the other Amendments.

The Tenth Amendment effectively cast the Constitution as a “Default Deny” policy against a large and oppressive government.  Default Deny is a term used in computer networking to describe a set of firewall rules that deny all network communication from anywhere and to anywhere unless it’s specifically allowed by an administrator. Continue Reading

Today, the Tennessee State Senate approved Senate Bill 1610 (SB1610), the Tennesse Firearms Freedom Act, by a vote of 22-7.  The House companion bill, HB1796 previously passed the House by a vote of 87-1.

On its way to the Governor’s desk, the bill states that “federal laws and regulations do not apply to personal firearms, firearm accessories, or ammunition that is manufactured in Tennessee and remains in Tennessee. The limitation on federal law and regulation stated in this bill applies to a firearm, a firearm accessory, or ammunition that is manufactured using basic materials and that can be manufactured without the inclusion of any significant parts imported into this state.”

The bill also states that “firearms accessories imported into Tennessee that are subject to federal regulation do not subject a firearm to federal regulation under interstate commerce simply because they are attached to or used in conjunction with a firearm in Tennessee.”

“Be it the federal government mandating changes in order for states to receive federal funds or the federal government telling us how to regulate commerce contained completely within this state – enough is enough,” urged Judiciary Chairman Mae Beavers. “Our founders fought too hard to ensure states’ sovereignty and I am sick and tired of activist federal officials and judges sticking their noses where they don’t belong.”

Read the Full Text of the Bill Below:

AN ACT to amend Tennessee Code Annotated, Title 4, relative to exempting from regulation under the commerce clause of the Constitution of the United States a firearm, firearm accessory, or ammunition manufactured and retained in Tennessee.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Title 4, is amended by adding Sections 2 through 7 of this act as a new chapter thereto.

SECTION 2. This chapter shall be known and may be cited as the “Tennessee Firearms Freedom Act”.

SECTION 3. The general assembly declares that the authority for this act is the following:

(1) The tenth amendment to the United States Constitution guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of Tennessee certain powers as they were understood at the time that Tennessee was admitted to statehood. The guarantee of those powers is a matter of contract between the state and people of Tennessee and the United States as of the time that the compact with the United States was agreed upon and adopted by Tennessee and the United States;

(2) The ninth amendment to the United States Constitution guarantees to the people rights not granted in the Constitution and reserves to the people of Tennessee certain rights as they were understood at the time that Tennessee was admitted to statehood. The guarantee of those rights is a matter of contract between the state and people of Tennessee and the United States as of the time that the compact with the United States was agreed upon and adopted by Tennessee and the United States.

(3) The regulation of intrastate commerce is vested in the states under the ninth and tenth amendments to the United States Constitution, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition;

(4) The second amendment to the United States Constitution reserves to the people the right to keep and bear arms as that right was understood at the time that Tennessee was admitted to statehood, and the guarantee of the right is a matter of contract between the state and people of Tennessee and the United States as of the time that the compact with the United States was agreed upon and adopted by Tennessee and the United States; and

(5) The Tennessee Constitution clearly secures to Tennessee citizens, and prohibits government interference with, the right of individual Tennessee citizens to keep and bear arms.

SECTION 4. As used in this chapter, unless the context otherwise requires:

(1) “Firearms accessories” means items that are used in conjunction with or mounted upon a firearm but are not essential to the basic function of a firearm, including but not limited to telescopic or laser sights, magazines, flash or sound suppressors, folding or aftermarket stocks and grips, speedloaders, ammunition carriers, and lights for target illumination;

(2) “Generic and insignificant parts” includes but is not limited to springs, screws, nuts, and pins; and

(3) “Manufactured” means creating a firearm, a firearm accessory, or ammunition from basic materials for functional usefulness, including but not limited to forging, casting, machining, or other processes for working materials.

SECTION 5. A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Tennessee and that remains within the borders of Tennessee is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Tennessee from basic materials and that can be manufactured without the inclusion of any significant parts imported into this state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Tennessee and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Tennessee does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Tennessee from those materials. Firearms accessories that are imported into Tennessee from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Tennessee.

SECTION 6. Section 5 of this act shall not apply to:

(1) A firearm that cannot be carried and used by one (1) person;

(2) A firearm that has a bore diameter greater than one and one half (1 ½) inches and that uses smokeless powder, not black powder, as a propellant;

(3) Ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or

(4) A firearm that discharges two or more projectiles with one activation of the trigger or other firing device.

SECTION 7. A firearm manufactured or sold in Tennessee under this chpater must have the words “Made in Tennessee” clearly stamped on a central metallic part, such as the receiver or frame.

SECTION 8. This act shall take effect upon becoming a law, the public welfare requiring it.

by Judge Andrew Napolitano, LewRockwell.com

“Some men think the Earth is round, others think it flat… But, if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? … NO.”

When Robert Bolt wrote that truism in his play A Man For All Seasons, his protagonist, Thomas More, was attempting to persuade the jury at his trial for high treason that all governments have limitations, and that the statute he was accused of violating was beyond Parliament’s lawful authority to enact. Sir Thomas was there appealing to the natural law as well as to the common sense of his jurors: The government can’t change the laws of nature. As we know, he fared no better than those who today argue that Congress is not omnipotent, has natural, moral, and constitutional limitations on its power, and every day fails to abide them. Continue Reading