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.

In the past year, several states have moved to assert their rights under the Tenth Amendment. States such as South Dakota, Tennessee, Texas, Louisiana, North Dakota, Alaska, Idaho, Oklahoma and more have passed resolutions telling the federal government to keep its paws off areas that don’t belong to it.

Alabama has specifically moved to short-circuit the federal government’s plan to cripple the country under the cap and trade global warming tax.  Other states such as Arizona, Florida, and Texas are moving to specifically tell the federal government if they pass socialized health care, it isn’t going to fly in their states.

More states–and more work–may be needed, given what the socialists in congress and the White House have in mind.

The Heritage Foundation has an analysis of how Obamacare would hit federalism and state’s rights hard.

State flexibility regulations will be removed, making states merely administrative arms of the federal government’s bidding

If congress succeeds in raising eligibility to 133% of poverty in the final bill (if it passes, God forbid), 33 states could see their Medicare rolls increase 30%, with 10 states seeing an increase of 50%. And since–contrary to a popular conception–government can’t create money out of thin air, guess who gets to pay for that?  What will it look like if they raise it to 150% of poverty?  Got your wallet handy?

There are any number of real reform actions congress could take if only they wanted to; these involve real solutions like tort reform, promoting consumer involvement and choice, making insurance more portable, etc.

But they don’t want to improve the system and get it back within constitutional parameters and into the realm of common sense.

Their goal is to push socialized health care on America, and they’ll do it in a big step or several smaller ones.  We the people must not allow them to take even small steps in that direction.  We’re already too close to the lip of that socialist abyss.

Bob Ellis [send him email] is the founder and editor of Dakota Voice.

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.

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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

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”.

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.

Regulation of campaign finance is said to be part of Congress’s power to govern the “Manner” of congressional elections under the Time, Manner, and Place Clause (Article I, Section 4, Clause 1).  That provision says the states shall prescribe “the Manner of holding Elections for Senators and Representatives,” but that Congress may (with one restriction) “make or alter such Regulations.”

This past summer, I investigated to find out what the Founders meant by the “Manner of holding Elections.” I found a lot of evidence, most of it unexamined by prior researchers. Interestingly, almost all the evidence suggests Congress was not given power to regulate campaign finance. That was a power reserved to the states and the people.

State regulations of the “Manner of holding Elections” were already quite common when the Constitution was adopted. Although the precise scope of the phrase “Manner of holding Elections” varied somewhat, its widest meaning was not broad enough to include campaign finance laws. And the Constitution’s use of the phrase was narrower than the widest meaning.

As the Constitution used the phrase, it meant to regulate the voting: that is, to specify what officer was to oversee elections, who was to do the counting, how results were to be recorded, whether open or secret ballots were used, whether the winner needed a majority or only a plurality, and the like.

That’s not all.

During the ratification fight, advocates of the Constitution were insistent in assuring the public that this power of Congress was quite narrow. They explained that the power would be exercised rarely, and only to correct serious state abuses, and that its principal purpose was to enable the federal government to preserve itself if one or more states refused to hold federal elections.

To my knowledge, the Supreme Court has never reached a direct conclusion about this evidence one way or another.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar. (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.

Andrew Napolitano: “There are limited, delegated and discreet powers of Congress in the Contitution…how can the government take over health care and still comply with the Constitution?”

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.

Such a speech blurs or crosses several boundaries that I believe there are good reasons to have in place.

The President’s constitutional powers are explicit. They include the “executive Power.” They include being “Commander in Chief of the Army and Navy of the United States” and a few more listed in the Constitution, including preserving and protecting the Constitution. They do not include addressing schoolchildren.

If the President were to live up to his oath to preserve and protect the Constitution, he would request that Congress repeal all its laws regarding education. Section 8 of Article I lists the powers of Congress. Education is not on that list. So when the President addresses schoolchildren, he breaks his oath in several ways. He does not have that power, and he affirms and solidifies a power assumed by Congress that Congress does not have. The President is failing in his sworn duty. Those who think that the President’s speech is helpfully teaching civics are mistaken. His speech is conveying and confirming anti-civics and anti-Constitutional lessons.

The President is a political leader. He is not in office to be an educator. His duties are clearly laid out, and they do not include educating children. By the same token, the President is not the parent of all these children. He is not their teacher. He is not their religious leader. The reason for these boundaries is so that political figures do not use their power and influence to dominate our social lives.

It is a special danger to liberty and society when national powers are developed. These are powers in which the national leadership directly controls or influences individual citizens, while bypassing or circumventing other local sources of governance and influence such as parents, families, churches, schools, and local governments.

An Obama address to schoolchildren is an instance of the further development of national power and influence. It breaks new ground in the influence of State over society. Public education already is under the influence of objectionable forces, but this establishes a new precedent that can be extended. If one political leader addresses youth, other leaders are more likely to address youth. The content of their speeches can be enlarged. Their influence can be enlarged. Government will be given more play and support than it already has. Such a speech is inescapably political. Such a precedent can eventually lead to further dangerous developments, such as a Presidential Youth or an Obama Youth.

The President is a politician. Any address he might make, no matter how nonpartisan it may seem, is bound to be political. It cannot be neutral. The very fact that he is President and making such a speech will be taken in by school children. He will be conveying his authority to these children, with the blessings of their parents and school teachers. They will be taught by the speech itself, regardless of its content, to look to the national government in matters relating to their lives. After all, is he not addressing them about very personal and civic matters? His speech is necessarily a political act.

The President is the leader of a particular political party, so that the very fact that he is a Democrat who is President and making such a speech influences his listeners. Children grow up to be voting adults.

In any speech, what the President says lies beyond the control of those who allow that speech to enter the classroom. The teachers have control over the subsequent discussion, if they choose to have it. But the President will already have made his impact. Children do not fully possess the capacities to judge political matters.

Will the opposition party demand equal time? Do we want politicians routinely competing with one another for the attention of and influence over children?

The President commands the airwaves. This is a dangerous and influential power when used with adults. Allowing this power to be extended to communication with every child in the country is even more dangerous.

School districts can opt out of the speech. In some districts, children may be allowed to opt out of the speech. These options are good ones. But they do not alter the reasons outlined above for objecting to a president making speeches in schools.

I’d like to add that I have seldom read stronger words in newspapers directed against those who object to Obama’s speechmaking to children. They are being called crackpots. They are being accused of demonizing the President. They are being accused of McCarthyism. They are being accused of being racist, completely insane, and members of the right-wing lunatic fringe.

These attacks are not called for. There are very good reasons to object to Obama’s speech. I’ll sum up the ones that bother me. There are no doubt others, but I have made no attempt to research them and find out what others are thinking on this matter.

1. The speech is beyond the President’s constitutional powers.
2. The President is supporting a national role in education, which also is unconstitutional.
3. The President is not supporting his oath of office, so he is conveying an anti-constitutional message to children.
4. The President is crossing a boundary between the political and social spheres. That boundary is in place in order to control government power and maintain a healthy free society.
5. The President is augmenting national power and influence.
6. The President is starting a new precedent that has dangerous implications.
7. The President’s speech cannot possibly be non-political. The very act itself is politically in furtherance of government and an enhanced government role.
8. The President also leads his party, and that fact may influence children.
9. The President may have an undue influence over children due to his position and power.
10. Will fairness considerations lead to equal time for opposition leaders?
11. Presidential access to communications is dangerous enough without extending it to youth.

Michael S. Rozeff [send him mail] is a retired Professor of Finance living in East Amherst, New York.

Copyright © 2009 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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.

In fact, the constitutional difficulties are profound.  This is certainly so for those who believe the Constitution means what our Founders understood it to mean.  But it is even true for those interested only in modern Supreme Court jurisprudence.

Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law:

Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document.  (The exact number depends on how you count.)  None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories.

To be sure, since the late 1930s, the Supreme Court has been tolerant of the federal welfare state, usually justifying federal ad hoc programs under specious interpretations of the congressional Commerce Power.  But, except in wartime, the Court has never authorized an expansion of the federal scope quite as large as what is being proposed now.  And in recent years, both the Court and individual justices – even “liberal” justices – have said repeatedly that there are boundaries beyond which Congress may not go.

The greatest Chief Justice, John Marshall, once wrote that if Congress were to use its legitimate powers as a “pretext” for assuming an unauthorized power, “it would become the painful duty” of the Court “to say that such an act was not the law of the land.”

But health care bills such as the Obama-favored HB 3200 do not even offer a pretext.  The only reference to the Constitution in HB 3200 is a severability clause that purports to save the remainder of the bill if part is declared unconstitutional.  HB 3200 contains no reference to the Commerce Power or to any other enumerated power.

Excessive Delegation. The Constitution “vests” legislative authority  in Congress.  Congress is not permitted to delegate that authority to the executive branch.  This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits.

Thus, in Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations in some current health care proposals.

Substantive Due Process. The Substantive Due Process doctrine was not contemplated by the Founders, but the courts have engrafted onto constitutional jurisprudence.  The courts employ this doctrine to invalidate laws they think are unacceptably intrusive of personal liberty or privacy.

The most famous modern Substantive Due Process case is Roe v. Wade, which struck down state abortion laws that intruded into the doctor-patient relationship.  But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200.  “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.

Tenth Amendment. Technically, the Tenth Amendment is merely a declaration that the federal government has no powers beyond those enumerated in the Constitution.  However, the modern Supreme Court has cited the Tenth Amendment in holding that Congress may not “commandeer” state decision making in the service of federal goals.

It is permissible for Congress to condition grants of funds to the states, if the conditions are related to the funding program and are not “coercive.”  Thus, in 1986 the Court ruled that Congress may, because of highway safety issues, reduce highway grants by five percent to states refusing to raise their drinking ages to 21.

But the mandates that some health care plans would impose on states certainly could be found “coercive,” both because they are excessive (HB 3200, for instance, would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.

A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power.  National health care proposals would increase that power greatly, so it is not surprising that those proposals have constitutional difficulties.

Whatever the merits of federal control of health care, moving in that direction is (as former Justice David Souter might say) a change of “constitutional dimension.”  The proper way to make such a change is not through an ordinary congressional bill.  The proper way is by constitutional amendment.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar.  (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.

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.

Similarly, the Tenth Amendment clearly disallows the government from exercising or granting itself powers not specifically granted to it by the Constitution itself.  Those powers instead lie with the state governments and individuals.

The founders believed in distributed government.  They expressed the idea that wherever possible, problems and disputes should be addressed locally.  If a family had a dispute, the family should resolve it.  If a town had a local issue that needed to be addressed, it should be addressed locally, and so on from the county to the state and finally to the federal level.

Those most familiar with the ideals, values, morals and habits of the locality and people who are affected by the problem should be the ones to fix it.  A bureaucrat in Washington, DC is ill-equipped to rule effectively on issues affecting Forks, WA.  A problem should only be elevated to the next level if a conflict arises between two or more families, towns or states.  This is bottom-up government.

This is a form of government that empowers individuals as much as any form of government ever has.  This is the most effective way to manage a geographically and demographically diverse country while maintaining universal freedom and property rights.

Since it was written, all of the branches of government have worked to find ways around Constitutional limitations, to justify its violation, and to extend the power and influence of government in our lives.  It’s often done with the blessing of the people.

The problem is that even if an idea is popular, it’s completely illegal if the Constitution disallows it.  There are specific methods described in the Constitution itself which would allow for changing it, but these are constantly ignored out of political expediency, ignorance and pure malice.

Those who most favor a “living” interpretation of the Constitution, one in which the Constitution should be ignored or bent or broken are the ones who’ve driven the country to its current state of lawlessness and unsustainability.  These people are a class of elites that believe they can truly govern best from the top down, dictating to states, towns and families how best to live their lives.  This class of elites were originally known as the Progressives.

Most of the damage done against the 10th amendment was done, unsurprisingly, by New Deal progressives under FDR.  At that time, the Roosevelt administration was attempting to centrally manage resources and control prices of commodities.

In one case, the Supreme Court ruled that, “although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”

Basically, they’re saying that even if you, say, operate a mining business in a single state, the stuff you mine may have a substantial impact on commerce in other states, and therefore the Congress can regulate your ass.  That might seem like a stretch, since after all, once you sell what you’ve mined, it’s not really any of your concern anymore.

And yet, because of this interpretation, the federal government became dictator to the individual.

But it gets better.

In an attempt to control wheat prices, the New Dealers sought to restrict the amount of land that farmers could devote to wheat production in order to stabilize the price of wheat.

In one case, a farmer named Roscoe Filburn was allotted 11 acres of his own land to use for wheat production.  Filburn instead planted about 22 acres, intending to sell the output from the allowed 11 acres, and use the extra he produced on the other acreage for himself.  And so it went to court.

In the Supreme Court case, Wickard v. Filburn, the justices ruled that had Filburn not used his own home-produced wheat for himself, he would have had to purchase it on the open market, and therefore he was affecting interstate commerce.  Yes, that’s right.  Growing your own food is an interstate commerce issue.  Thank you, progressivism!

So if something as simple as growing your own wheat on your own farm (or by extension, growing your own tomatoes in your back yard) can be regulated by the federal government under the commerce clause, then the commerce clause can pretty much be used to regulate anything.

The 10th amendment is virtually dead.  The federal government controls all.  If one amendment can be interpreted beyond it’s intentions in such a way that it becomes meaninglessness, then really any amendment is meaningless.  The end result is that the federal government can dictate what an individual can and cannot do with his own personal property.

Whether that power is ultimately used for good or for bad doesn’t matter.  It is tyranny.

Progressive statism is a slow, incremental disease.  But little moves can have massive consequences.  Even letting defenses down temporarily for “emergency” purposes invites permanent, unwelcome change.  If you believe in conservatism, then always trust conservatism.

When in doubt, always stay true to what the founders tried to leave for us.

Kody Dickerson maintains a blog at Kodewords.com

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.

“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.

Jefferson wedded the natural law to American law in the Declaration of Independence when he wrote that our rights are “inalienable” and come to us from “Our Creator.” Not only does federal law recognize that, but the whole American experience recognizes the natural law as the ultimate source of our freedoms and as a restraint on the government. Thus, the traditional panoply of American rights is ours by birthright and cannot be interfered with by an act of Congress or order of the president, but only after due process.

Two of those rights are speech and contract. A law enacted by Congress punishing speech (such as the Patriot Act provision that declares to be felonious speaking about the receipt of certain search warrants) is no law at all, since the law itself violates the natural right to speak freely, which is expressly protected in the Constitution. The Framers fully understood this as they wrote in the First Amendment: “Congress shall make no laws … abridging the freedom of speech.” I have italicized the word the to make my point. The framers accepted the natural law premise that freedoms come with and from our humanity. The freedom of speech obviously preexisted the constitutional amendment insulating it from government abridgement, and the Framers’ use of the article the reflects their unmistakable acceptance of that truism.

Similarly, a law changing the terms of a private contract is no law since it violates the natural right to make binding agreements. The Framers knew that as well. The Constitution specifically forbids the states and, by requiring due process and expressly forbidding taking property without just compensation, the federal government, from “impairing the Obligation of Contracts.” This, too, is a personal natural right that pre-existed the constitutional clauses that bar the government from interfering with it.

The Constitution sets forth just 17 discrete delegated powers on matters like currency, interstate commerce, the post office, the judiciary, and national defense. The Constitution also interposed two precise brakes on all federal powers: The Ninth and Tenth Amendments together state that the powers not enumerated in the Constitution as given to the federal government are retained by the people and the States.

The whole purpose of the Constitution is, was, and has been to define the government, to impose restraints on the government, and to guarantee personal freedoms. It specifically diffused power between the States and the central government and, within the federal government itself, it separated powers among the three branches.

It is elementary to state that the Constitution mandates that Congress writes the laws and decides how to spend tax dollars, the president enforces the laws as Congress has written them, and the courts interpret the laws as they have been written and enforced to assure their compliance with the Supreme Law of the Land.

As elemental as this sounds, it is hardly recognizable today. After 230 years, we have come to a point where a president declines to enforce laws he has himself signed, directs his Treasury Secretary to make laws interfering with private contracts, and signs executive orders that invade privacy, restrict speech, and appropriate property. Today, we have a Congress that delegates to the president its power to spend taxpayer dollars and money borrowed in the taxpayers’ names, has written laws regulating the air you breath, the water you drink, the words you speak, and relieving the persons with whom you have contracted or to whom you have loaned money from complying with their agreements. And our courts from time to time have raised taxes, run prisons, re-cast the boundaries of school districts, and declined to right obvious constitutional wrongs committed by the other branches.

The oath to uphold the Constitution that everyone in government takes, though solemnly delivered and publicly sworn to, like an oath to tell the truth in Court, is simply not taken seriously. Notwithstanding the plain language of specific grants and general restraints, notwithstanding a careful compromise between the Hamiltonians who wanted all power to be in the federal government and the Jeffersonians who wanted all power in the States, and notwithstanding our inalienable rights from our Creator, the federal government today simply recognizes no limits on its power.

But the Constitution is the Supreme Law of the Land. We will have chaos if those in whose hands we repose it for safekeeping intentionally violate it with impunity. A government that violates its supreme law becomes arbitrary, and arbitrary rule becomes authoritarian, and authoritarian rule will trample our freedoms. Just six weeks into its four-year term, the Obama administration and its allies in Congress, just like the Bush administration and its allies, have acted like they never heard of the Constitution. They have attempted to control salaries of private banks, change the terms of private mortgages, enter the marketplace by nationalizing banks and the world’s largest insurer, and investing taxpayer dollars in companies whose products consumers reject and investors eschew. This is theft of liberty and theft of taxpayer property.

Is freedom a reality or a myth? Are the rights guaranteed in the Constitution real or just a pretense? Isn’t the whole purpose of government in a free society to uphold rights rather than interfere with them? If the answers to these questions are no longer obvious, it is because we have a central government whose only self-acknowledged limitation is whatever it can get away with.

Andrew P. Napolitano [send him mail], who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.

Copyright © 2009 Andrew P. Napolitano