This article appeared in the DC Examiner on November 17, 2009.

Friends of federalism cheered last month when the Obama administration reversed the Bush policy of prosecuting medical marijuana cases in states that have legalized the practice. Welcome though that change was, let’s hold the applause.

Not yet a year into his administration, Obama’s record on 10th Amendment issues is already clear: He’ll let the states have their way when their policies please blue team sensibilities and he’ll call in the feds when they don’t. Thus, he’ll grant California a waiver to allow it to raise auto emissions standards, but he’ll bring the hammer down when the state tries to cut payments to unionized health care workers.

That’s not how it’s supposed to work. As Madison explained in Federalist 45, the powers delegated to the federal government were “few and defined,” to be exercised mainly on “external objects” like foreign policy and international trade. All else — criminal law, marriage, social policy — remained with the states or the people.

Of course, No. 45 also contains one of the Federalist’s saddest sentences, in which Madison predicts that federal tax collectors will be “principally on the seacoast, and not very numerous.” (Sometimes the Framers weren’t all that prescient.)

Indeed, the federal government’s massive power to tax and spend has increasingly allowed it to trample state prerogatives. As the $786 billion stimulus package came online this year, for the first time ever, federal aid surpassed the sales tax as the largest source of revenue for the states.

“This money isn’t manna from heaven,” warned Indiana state Sen. Jim Buck, “it comes with a price.”

California learned that lesson back in May. Struggling to close a $40 billion budget gap, the state government lowered payments to home health care workers, but the Obama team threatened to withhold billions of dollars in stimulus money unless the wage subsidies were restored.

Officials in Gov. Arnold Schwarzenegger’s office accused the Service Employees International Union, a longtime Obama ally, of improper influence.

Just a few years back, the Republicans — nominally the party of federalism — were busily wielding federal power to enforce red state values — prosecuting medical marijuana patients, punishing doctors participating in Oregon’s “Death with Dignity” initiative, and trying to overturn Florida court decisions that allowed Terry Schiavo to be removed from life support. In that odd political climate, you often heard liberals lamenting the decline of states’ rights.

That strange new respect for the 10th Amendment lasted roughly as long as the blue team’s exile from power.

Education Secretary Arne Duncan said recently that “if we accomplish one thing in the coming years, it should be to eliminate the extreme variation in standards across America.” Diversity is bad, uniformity double-plus good; get with the program, comrade.

But one of federalism’s core virtues is the enormous diversity it allows. Decentralization makes it easier for Americans to escape unwelcome state experiments with fiscal and social policy.

It enhances the political power of individual citizens by allowing important decisions of governance to be settled closest to where Americans live and work. And it avoids making politics a centralized war of all against all, where each contested issue is settled in a one-size-fits-all fashion at the level furthest from the people.

Our federal system shouldn’t be a red team/blue team issue, respected or flouted depending on who’s up and who’s down. Conservatives are learning to rue their abandonment of federalist principles during the last administration; liberals may come to regret their rush toward centralization during the next.

Gene Healy is a vice president at the Cato Institute and the author of The Cult of the Presidency.

After the release of my last column “Freedom’s Destruction by Constitutional De-Construction,” I received so many responses to my statement, “The people of the states [must] once again reject this national form of government and assert and defend the principles of federalism,” that I felt the need to develop this subject more thoroughly.

The question I received was: “How can I choose federalism once again?” Indeed, answering this question is crucial to injecting a cure for the sickness and illness of tyrannical, national control over the people of the states. Undoubtedly, we are going to need an acute dosage to even begin ridding ourselves of the disease destroying the body of our once-great federation.

The reality is, the answer is not complicated. The more relevant question will likely be, what portion of the cure(s) must we implement. This will require a diagnosis of the degree and seriousness of the disease’s attack on our Confederate Republic.

Let us analyze briefly the seriousness of the attack so that we may proportionally and accordingly respond and defend against the encroachments on our constitutional freedoms, guarantees and powers.

Keeping in line with my last article and the position that the national system of government (under which the United States currently operates) is completely contrary to the federal system that our founders and Constitution’s ratifiers bequeathed to us, a fact is established: We the People of the United States of America have been denied our natural and compactual rights under God and the Constitution.

Again, how can it be argued that it is now legally and morally right and proper to do what our Constitution did not create or authorize? How can freedom exist in a country where we supposedly believe in the “consent of the governed” when that consent has been usurped by force? Consequently, our right of defense is activated.

Make no mistake about this: the US Constitution did NOT create a national government, but rather created a federal government whereby the states were coequal with the federal government in the exercise and defense of the powers granted to them by the people of each State. The founders and ratifiers of the Constitution expressly rejected the notion that the federal government has supreme sovereignty.

The issue here is not whether there are “national components” of the procedures in the system, such as voting for the House of Representatives by the people. We know that the founders implemented a few elements of national-type procedure in the US Constitution, just as they did even in the Articles of Confederation.

Rather, the bottom-line issue is, whether the states have coequal power to exercise and defend their powers–and their citizens–and whether the Federal government has the power to force the states to accept its own interpretation and (de)construction of the Constitution. If the union of the United States was formed by the people of the states in their capacities as the sovereign of each State, creating a FEDERAL government, then the states are coequal in power and do have the right to exercise and defend their powers.

If the union of the United States was formed by the whole of the people as a mass body politic, without regard to the sovereign states, creating a NATIONAL government, then the states are mere corporations of the parent company, called the Federal government.

I need not expound the answer to this question here, because I have done so in numerous other articles before, proving that the union was formed by the states as states, and not by the people as one nation. The conclusion is more than provable that the founders and ratifiers of the Constitution did not create a nation, but created a federation, and actually expected the states to be the active guardians of freedom for their own people.

Thus, what methods can we use today to once again choose federalism over nationalism?

There are five basic methods by which the people of the states can counter the attacks of the federal government’s prolonged tyrannical usurpations of power. They are: (1) Change of Politicians; (2) Checks and Balances; (3) Constitutional Amendment; (4) Constitutional Convention; and (5) Revolution.

1. Change of Politicians. Alexander Hamilton notes in Federalist Paper 21, “The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.” This method of cure is no mystery, and has been the mode of “change” in the US for the past 50 years. Dare I say, this method has proven to be anything but effectual? Please show me how changing the Federal government from Republican to Democrat and vice versa has done ANYTHING to reinstitute our federal form of government, provided by the Constitution. Both parties in the federal government do absolutely nothing to revert rightful power to the people of the states. I shall not waste any more valuable time or words on this ineffectual method. (Then again, if we had a majority of congressmen such as Ron Paul in Washington, D.C., we wouldn’t be having this discussion to begin with.)

2. Checks and Balances. There are two types of checks and balances: (a) federal against federal, and (b) State against federal. Since the early 1900s, the executive, legislative and judicial branches of the federal government have usurped power from the states. To say that the people of the states can count on the three branches of the federal government to check each other in this regard and to maintain a Federal form of government is a joke. All three branches maintain that they possess the sole power (through the judiciary) to interpret and construe the Constitution, and that all others (i.e., the states) must submit thereto. This is in fact the very definition of nationalism, which the Constitution’s ratifiers rejected.

As for the states’ check against federal usurpations of power, most ignorant or disillusioned people would say that they lost that right when the Confederate States of America lost the Civil War in 1865, and from that point onward, the states could not check the federal government through arresting action. They suggest that to conquer equals the right to rule: a notion completely rejected in American jurisprudence. Time does not allow me to expand on this erroneous doctrine, so I will simply say, How ludicrous!

The fact is, the Federalist Paper writers expected the states to be the guardians against federal tyranny. This necessarily meant (as they expressed) that the states develop actual arms of resistance to such encroachments. This, of course, shows, once again, the FEDERAL character and nature of our form of government: the states were not subservient to the federal government’s dictates, but were coequal in power to protect their own authority and freedoms through their State Constitutions.

Thankfully, we are seeing a current resurgence of State activism to be the voice and arm of the people to protect and perpetuate the US Constitution. While the federal v. federal checks and balances have proven to be less than fruitful, the states today are taking their role more seriously in this regard, just as our founders and ratifiers demanded. It is this State power of active and passive nullification and resistance that will once again protect federalism and freedom in America. Therefore, it is this State power that affords us the best opportunity to defend liberty and restore constitutional government, and that we should expend most our energies to revive.

3. Constitutional Amendment. The US Constitution requires three-fourths of the STATES to amend the Constitution. Most certainly this is an effective tool to reverse and prevent evils in government. Our founders expected that this process would protect freedom and the principles of freedom. However, as we have seen since 1865, the amendment process has been used only to increase national power and decrease State power. From the states being denied power in the Senate, to the income tax and “privileges and immunities” clause of the fourteenth amendment, the nationalists of the twentieth century have had their heyday by deepening their squeeze of national ideals over federal. Ironically, the attack on federalism has come through the same document protecting our federation: the Constitution. (The illegality of amendments being used to propagate principles contrary to freedom and federalism is for another article and discussion.)

That being said: if there were enough states to amend the Constitution to clarify federal doctrines, limit federal government power, and reinstitute original State powers, then it most certainly would be beneficial. Praise the day when such amendments would be ratified.

4. Constitutional Convention. I have heard this method suggested by some in certain circles of the “patriot movement,” and while I understand the suggestion of calling a constitutional convention to rewrite the Constitution, I believe that to do so would likely create more problems than what we are dealing with today. However, there is a caveat, as explained below.

To convene a constitutional convention, states would have to send delegates (just as in 1787) for the purpose of discussing and drafting a Constitution. Not even getting into the legal issues and ramifications inherent in such a method, a very practical question is raised: Would a majority of the people convening at such a monumental event even possess the understanding, knowledge and belief needed to perpetuate and protect the principles of freedom and federalism? By virtue of what I see throughout the US today, I venture to say, No. I believe one of the greatest contributions to national ideals defeating federal ideals is that the people (including on State levels) do not understand, know or believe in the principles expressed by our founders and their forefathers.

Thus, to call a constitutional convention would most certainly place us in a worse situation. That said, there is one positive that could result from this. If the Constitution were re-written, it would require the ratification of the states that wanted to join a new union under a new contract (Constitution). In this case, it very well may provide a way for the people of the states to decide which path they wanted to take: national or federal. In other words, those states that yet wanted to live under Federalism and not Nationalism could reject the new compact and could declare themselves independent or seek to form yet another compact among like-minded states. (Of course, this could happen anyway, per number 2 above–even without a constitutional convention–making any proposed Con Con a dangerous and unnecessary action.)

5. Revolution. Revolution simply means a change of power. For those who perceive such a term as being a bad thing, why do they not then demonize the current illegitimate system of national government, because this current system is not the one the states ratified back in 1787? If a squatter turns your property into his, are you not within your rights to remove him, his family, his friends and his belongings completely from your property?

It is a fact that Americans (nationalists, federalists and even monarchists) believed in the natural right of revolution–that every generation has the God-given right to effect change by revolution when change cannot be reasonably expected and effected through other more peaceful means.

Coming full circle, then: To what degree has the federal government usurped its powers? This question is crucial because, as our forefathers expressed, resistance should be enacted proportionally to the usurpation. While there may be some who think that “it’s not all that bad,” I suggest that it is much worse than we think it is.

We are at a point today when we are not only fighting for State sovereignty and a federal system, but we are fighting for national sovereignty (according to the LAWS OF NATIONS as expressed by enlightenment philosophers and jurists), against those who desire that the US become part of the global community.

The evidence around us is beyond reasonable doubt: we the people of the United States have been fraudulently denied our rights under the laws of Nature and Nature’s God, and under the US Constitution. The rights to resist this tyranny already exist. The methods to choose federalism and freedom have their hands out, offering to help us. It is time we choose which method or methods will best reach the ultimate goal of freedom.

And as I said, I believe a revival of State sovereignty–whereby states are resolved to exercise the authority they have per the terms of their charter (Constitution)–is the most attractive and effective method currently feasible to reclaim federalism and freedom in America.

Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of America’s foremost defenders of State sovereignty. See his blog.

Copyright © 2009 Timothy Baldwin. Reprinted with permission from Chuck Baldwin Live and Liberty Defense League.

What Is The Federal System Of Government?

Many people mistakenly equate “Federalism” with decentralization. A federal system is certainly a decentralized system but it is also much more. The defining characteristics of federalism are:

(i) Two constitutionally established, concurrent orders or levels of government, one consisting of fundamental units of governance (called “states”), the other consisting of a national government encompassing all the people who live in the states;

(ii) The sovereign people cede limited and specific powers to the national government, reserving respectively to their states the remainder of the powers they choose to delegate to government;

(iii) Each governing order or level of government is autonomous, free of the other to act within its own realm, the only exception being that acts of the national government are supreme to those of the states when those acts come into conflict in areas where both governments’ delegated authority overlap/intersect; and

(iv) The governments at each level are accountable to their respective electorates and in certain instances to each other as provided for in the constitution.

Before the term “states’ rights” became contaminated by its identification with the efforts of some states to perpetuate slavery and later racial segregation, “states’ rights” concisely described the states’ legal and political autonomy although the term always constituted a shorthand reference to states’ constitutional and political autonomy vis-à-vis the national government as opposed to natural rights, which only individuals possess.

What Was The Purpose Of The Federal System Of Government?

To protect the rights of individuals. The Founding Fathers distrusted power in the hands of any level of government, state or national. As Thomas Jefferson’s biographer Dumas Malone pointed out, Jefferson never supported states’ rights for their own sake, “but to safeguard the freedom of individuals,” which he, along with the rest of the Founding Generation believed would suffer in a consolidated nation no matter how decentralized the administration of the consolidated government happened to be.  Hence, in drafting the Kentucky Resolves for instance (see here and here), Jefferson identified the states as the primary depositories of power and the proper entities of resistance against an encroaching national government.

Although the Founding Fathers well understood that the federal form of government was no absolute bar against either state or national tyranny, they believed it to be a practical check on the national government (especially when combined with constitutional separation of powers) and at the same time a guarantee that safe havens would always exist to which people could flee from an oppressive state government. William Watkins, Jr. puts it this way: “Though some states might abuse power, Jefferson reasoned that not all would fall under the spell of tyranny.  But with a consolidated and abusive national government, all would suffer the same tyranny; there would be no islands of peace.”  (See The Kentucky and Virginia Resolutions)

How Was The Integrity Of The Federal System Of Government To Be Preserved?

Of all people, even the great Federalist consolidator and centralizer Alexander Hamilton understood the delicate balance in the basic architecture of the U.S. Constitution. According to Hamilton in Federalist # 28, it is an “axiom in our political system that the state governments will in all possible contingencies afford complete security against invasions of the public liberty by the national authority.”

Hamilton went on to postulate that should the national government pose a danger, the states could “at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different states; and unite their common forces for the protection of their common liberty.” In other words, the primary means of defense against a grasping and encroaching national government was to be truculent state governments that took action singly and in concert to actively defy national government actions they considered to be in violation of the Constitution.

In a federal system, no government or branch of government was to be the judge of its own cause. (As John Taylor wrote much later, “a jurisdiction limited by its own will is an unlimited jurisdiction.”) The boundaries and limits of governmental authority were to be hammered out through a perpetual struggle among the separate branches of government and between the states and the national government. Watkins again succinctly states Jefferson’s and Madison’s understanding of how the boundaries of authority in a federal system were to be delineated:

“Jefferson proclaimed in the [Kentucky] resolution that ‘each party [to the federal compact] has an equal right to judge for itself, as well of infractions as of the mode and measures of redress.’ For Jefferson, the people acting through their states—the authentic organs of government—were the final arbiters of constitutional interpretation.  Jefferson feared that giving the federal government the exclusive power to interpret the Constitution through the Supreme Court would lead to arbitrary government.”

How Did The Federal System Of Government Fail?

Hamilton was correct in how the federal system of government was supposed to work but incorrect in how it actually worked out. Ironically, the cracks in federalism that appeared almost immediately after ratification of the Constitution were in large part due to the role Hamilton played as usurper in the early days of the American Republic, especially in the events surrounding the crisis of near war with France in the late 1790s. It was from these maneuverings that the hated Alien and Sedition Acts were enacted by the Congress, which led directly to the drafting of the Kentucky and Virginia Resolutions in 1798 by Thomas Jefferson and James Madison and what came to be known as the “Spirit of ’98.” The question then is how did Hamilton and his political progeny manage to overcome James Madison’s and Thomas Jefferson’s design and usurp the power of the states and abridge the rights of individuals contrary to the intention and careful design of the United States Constitution?

The American system of federalism has failed because the set of rules that established it and was meant to maintain it—the U.S. Constitution, its careful design notwithstanding—is fundamentally flawed. The Constitution failed to provide a practical mechanism to sustain and protect the autonomy of each order of government from encroachment by the other.

It is an interesting exercise to analyze why the U.S. Constitution failed in this, its most important function. (Read more. . .) However, it is not necessary to come to any definitive conclusion as to why it failed to know that is has, in fact, failed. It is sufficient to observe the states’ advanced stage of political decrepitude and legal dilapidation; the relatively low-quality of their elected and appointed officials; their incapacity to defend themselves legally, politically or physically against the national government; their fiscal dependence upon the national government; their reliance upon the national government operationally; their subservience to the national government in every respect; their low regard in the eyes of the public and the lesser affection and attention they receive from the electorate.

The Relentless Growth Of Government

Thomas Jefferson described the dynamic by which government grows and liberty recedes in a letter to Edward Carrington in 1788: “The natural progress of things is for liberty to yield and government to gain ground.” The design of the U.S. Constitution was meant to be a bulwark against this naturally corrosive process—a check against one level of government’s growth at the expense of the other to the ultimate detriment of the people—by giving one level of government a natural self-interest and the power and means to resist the expansion of its rival.

Government’s expansion at the expense of liberty is always fueled by the same poisonous admixture of human frailties: Fear, ignorance and greed. The mechanism of forward momentum that has propelled the excessive growth of government has always been the meshing of two gears: the natural inclination of politicians to gather more power unto themselves by oppressing the people and the natural inclination of people of business to maximize profits by gaining an advantage over their competitors. When profit-seeking business people work hand in glove with power-seeking politicians, both gain at the expense of the vast majority of the people. In general, government expands its power by scaring people and convincing them of the necessity of regulation, taxation and government spending to further the general welfare in the name of the public interest; while business enterprises seek to use the government’s expanding power to tax, spend and regulate to further their own ends.

The justification for government to expand its authority to tax, spend and regulate in the name of the public interest and for the “greater good” is based on a popular myth, namely that markets are everywhere and always fragile and failing and that government regulation is always benevolent, omniscient, and corrective. In fact, government regulation creates far more unintended problems that it solves. Moreover, government regulation almost always is a special-interest phenomenon driven by a combination of government’s quest for power and the quest of the firms being regulated to cartelize their industry in order to drive their competitors from the field so they can reap extraordinary profits at consumers’ expense. As Nobel Laureate George Stigler wrote in 1971, “As a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit.”

There is an irresistible urge among businesses to create cartels but unaided by government oppression to destroy competition, cartels fall prey to companies’ unilaterally abandoning the rigged rules the cartel must enforce to survive—which is why the cartel must conspire with government to enforce the cartel’s rules by the force of law and regulation, imposing heavy fines and imprisonment for “cheating” and “law breaking.”

In the specific case of the national government’s eclipsing and subjugating the state governments, the dynamics of federalism’s decline has proceeded as follows: The national government has through artifice and flaws in the Constitution expanded its realm both by grasping new powers outside the Constitution’s grant of authority to either level of government and by expanding the area of authority common to both the states and the national government. If the general rule is that each order of government is sovereign within its own realm (Tenth Amendment) and the exception to that rule is the national government is supreme (Supremacy Clause) where those realms overlap/intersect and conflict, then the political growth strategy of the national government historically has been to constantly expand the area of overlap to permit the exception to swallow the rule.

The Slow-Motion Disintegration Of The Federal System Of Government.

The first test of federalism’s ability to protect the people against an over-reaching national government came early on in the face of a threat of war with France during the late 1790s. The Alien and Sedition Acts were enacted in direct response to the fear of war.

Jefferson and Madison perceived the danger of these acts, not only their immediate oppressive nature but also their long-run corrosive effect on the federal system of government. Jefferson described the Acts as “merely an experiment on the American mind, to see how far it will bear an avowed violation of the Constitution.” In response to this experiment in tyranny, Jefferson and Madison drafted the Kentucky and Virginia Resolutions in which they laid down the “principles of ‘98” in an effort to rouse the states to check an over-reaching national government before it became un-checkable. (Read more. . .)

The threat of an abusive national government’s over reaching its delegated powers receded temporarily as the threat of war receded, the war party of Hamilton lost power to the Republican Party of Jefferson and Madison and the Alien and Sedition Acts expired. This first test of federalism and the reaction to it in the form of the Kentucky and Virginia Resolutions have been downplayed in the nation’s official history yet this incident exposed the flaws in the design of American federalism and set the stage for the next attempted encroachment of national power

This second test of federalism and the concomitant expansion of the national government occurred around the fulcrum of the War Between the States. In addition to the unplanned expansion of government that invariably accompanies war, especially civil war, Abraham Lincoln and the Republican Party also set out intentionally to greatly strengthen and expand the power and scope of the national government through what became known as the “American System of Henry Clay,” a plan to use federal subsidies and high protectionist tariffs to establish economic nationalism and give large sums of tax dollars to corporations to build “internal improvements” – railways, waterways and canals.

As Reconstruction came to an end and throughout the remainder of the 19^thcentury and into the 20^th century, primarily under Republican rule, the skids to further centralization and consolidation were greased beginning in 1877 with the Supreme Court case of Munn v. Illinois. The Munn case illustrates how expansion of national power did not always appear to be such on its face. Indeed, as Munn illustrated, the predicate for the future expansion of national power could come first by a federal court ruling expanding state authority over individuals and businesses.

In fact, the most effective expansion of national authority came through a two-step process: First, expansion of overlapping powers (in this case the power to regulate commerce) followed by the national government’s claim of exclusive authority over the previously expanded common realm through the invocation of its constitutional supremacy (Supremacy Clause) in areas where state and national power intersect and conflict. Thus were states crowded from the field and hollowed out into mere shells of the authentic organs of government they previously were.

In Munn, The Supreme Court permitted states to regulate certain businesses within their borders, including railroads. This case is commonly considered a milestone in the growth of government regulation, practically eviscerating the bar against takings under state common law or the Contract Clause of the U.S. Constitution. The Court’s ruling upheld Illinois price-control legislation proposed by the National Grange to regulate grain elevator rates, declaring that business interests (private property) used for public good be regulated by government. This decision also affected similar laws governing railroad rates. Since they too were deemed private utilities serving the public interest, the laws governing their rates were held to be constitutional as well.

Although both holdings were considerably narrowed and weakened by the decision in Wabash, St. Louis & Pacific Railroad Company v. Illinois (also known as the Wabash Case), the predicate for further expansion of national commerce power had been firmly established. In Munn, the Supreme Court decided that the Fourteenth Amendment did not bar government from imposing price controls but focused instead on establishing the principle that a private company could be regulated in the public interest. The Court held that it could, if the private company could be seen as a utility operating in the public interest.

The Demise Of The Ninth And Tenth Amendments.

Once the primary constitutional bars to government (state or national) regulation of private entities were stripped away, it remained simply to expand the national government’s authority relative to the states and then to restrict the states’ authority to subjugate them to Washington, DC. The primary mechanism employed was an infinitely elastic Commerce Clause and promiscuous use of the Necessary and Proper Clause through which the national government’s power was inflated at the expense of state prerogatives, a process that ultimately pulverized the Ninth and Tenth Amendments under the national government’s boot. Jefferson clearly perceived the beginnings of this pernicious process and vigorously objected to it in the first Kentucky Resolution of 1798:

“. . .words [such as ‘necessary and proper’] meant by the instrument [Constitution] to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument.”

The expansion of the national government’s commerce power was not without temporary obstruction and even occasional temporary reversals but it was, over the course of time, unidirectional and virtually all encompassing. Between the turn of the 20^th century and the New Deal, the Supreme Court made a series of rulings that found congressional action in violation of the Tenth Amendment.  Perhaps the most famous are the 1918 ruling striking down national child labor standards (Hammer v. Dagenhart, 246 U.S. 20), in which the Court embellished the Tenth Amendment to read that powers not “‘expressly’ delegated to the national government are reserved,” the 1922Child Labor Tax Case (259 U.S. 20), and United States v. Butler (297 U.S. 1, 1936). 

Beginning in 1937, however, the Court reversed itself on restricting the powers of Congress under the Tenth Amendment.  In cases that year, such as National Labor Relations Board v. Jones and Laughlin Steel Co. (301 U.S. 1) andSteward Machine Co. v. Davis (301 U.S. 548), the Court found the Tenth Amendment to be of limited relevance in assessing the constitutionality of congressional taxing and spending policies. 

Although given several opportunities between 1937 and 1976, the Court refused to strike down national legislation on the grounds that it encroached on powers reserved to the states under the Tenth Amendment.  See e.g., New York v. United States (326 U.S. 572,1946) and Fry v. United States (421 U.S. 542, 1975).  In reference to the Commerce Clause specifically, on only eight occasions prior to 1937 did the Court find that the Congress had exceeded its constitutional limits. The last such case (prior to 1976) was Carter v. Carter Coal Co. (298 U.S.238, 1936), which invalidated the Bituminous Coal Conservation Act of 1935.  The Court held in that case that regulation of production and labor relations lay beyond the allowable object of congressional power—regulation of interstate commerce.  The Fair Labor Standards Act was upheld in United States v. Darby (312 U.S. 100, 1941), the Court holding that Congress may by law exclude goods that do not conform to specified labor standards from interstate commerce and may use direct regulation of labor relations to achieve this objective.

The Court temporarily rediscovered renewed state autonomy under the Tenth Amendment in National League of Cities v. Usery (1976). The Court found that the Tenth Amendment necessarily requires the existence of a set of essential state powers that remains beyond the reach of congressional regulation or preemption.  However, the Court was soon to begin chipping away any new expansion of states’ autonomy under National League of Cities. During the early 1980s, federal regulation of the states was upheld in a series of cases. See Hodel v. Virginia Surface Mining, 452 U.S. 264 (1981), United Transportation Union v. Long Island RR, 455 U.S. 678 (1982), FERC v. Mississippi, 456 U.S. 742 (1982), and EEOC v. Wyoming, 460 U.S. 226 (1983).

The Court finally threw in the towel and reversed itself altogether in Garcia v. San Antonio Metropolitan Transit Authority (1985), holding that the Tenth Amendment provides the Court no basis on which to limit the Congress in the exercise of its commerce powers. The Court declined, not simply to rule against the Congress, but even to entertain the possibility that the Congress might, within the scope of its commerce powers, intrude upon the constitutional position of the states.  The Court appeared finally to abandon whatever vestige remained of its role as federal umpire between the states and the federal government by refusing to blow the judicial-review whistle to signal a congressional foul.

In 1992, the Supreme Court appeared to breath life back into the Tenth Amendment by finding instances outside federal commerce power in which federal action might violate the reserved powers of the states. For the first time in 55 years, the Court invalidated one section of a federal law for violating the Tenth Amendment.  The case in question (New York v. United States, 505 U.S. 144) challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985.  The Act established three mechanisms to entice/compel states to comply with federal statutory obligations to provide for the disposal of low-level radioactive waste.  The first two enticements were monetary incentives. The third, which was challenged in the case, required states to take title to any waste within their borders that was not disposed of prior to January 1, 1996. The Act also made each state liable for all damages directly related to the waste.  The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment.

Justice O’Connor wrote the opinion of the Court, which held that the Congress may use its spending powers to encourage the states to adopt certain regulations (i.e., by attaching conditions to the receipt of federal funds, seeSouth Dakota v. Dole, 1987) or impose its will through the commerce power (by directly pre-empting state law).  However, Congress may not directly compel states to enforce federal regulations.

In 1997, the Court went a step further in its apparent revitalization of Federalism when it ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898).  The Act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns.  Justice Scalia, writing for the majority, applied New York v. United States in holding the law violated the Tenth Amendment.  Because the act “forced participation of the State’s executive in the actual administration of a federal program,” the Court found it to be unconstitutional.

Less than a decade later, however, the Court again expanded its elastic definition of “commerce among the states” to include local cultivation and consumption of marijuana (Alberto R. Gonzales, Attorney General, et al, v. Angel McClary Raich, et al.) In the process, the Court tightly constricted the life support it had provided the Tenth Amendment and, in effect, restricted its protections exclusively to a prohibition against federal commandeering of state governments to enforce federal laws and regulations through direct edict. With the Gonzales v. Raich decision, the Court again found it impossible to declare federal laws unconstitutional for violating the Tenth Amendment because it refused to circumscribe federal authority under the Commerce Clause.

Justice Clarence Thomas disputed the Court’s further expansion of federal commerce power:

“Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”

Expounding upon what this expansive interpretation of “commerce among the several states” means for the Tenth Amendment, Thomas spotlighted the state of limbo in which the Court remains stuck on Federalism:

“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that ‘“[t]he Constitution created a Federal Government of limited powers.”’ New York v. United States, 505 U.S. 144, 155 (1992) (quoting Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)). That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of ‘Commerce among the several States.’ Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly ‘necessary and proper’ to regulating interstate commerce.”

The range of federal power is circumscribed by the boundaries established by the enumerated powers; but the enumerated powers themselves are restricted only to the extent that the definition of “commerce among the several states” is limited, which for all intents and purposes the Court appears unwilling to limit. Therefore, at the end of the first decade of the 21^st century, the limits of federal authority vis-à-vis the states has boiled down to a narrow restriction against the federal government’s commandeering or compelling the states to enforce federal statutes.

1913 Was A Very Bad Year

Concurrently with employing the Commerce Clause and Necessary and Proper Clause to fuel the expansion of the national government at the expense of the states, the national government also aggressively used its fiscal and monetary powers to aggrandize itself throughout the first half of the 20^th century. Of all the government-sanctioned cartels, the most pernicious has been the Federal Reserve System, established in 1913, which was created to facilitate the creation of a banking-industry cartel and the creation of cartel profits in that industry as well.  As Murray Rothbard wrote in A History of Money and Banking in the United States, “The financial elites of this country . . . were responsible for putting through the Federal Reserve System, as a governmentally created and sanctioned cartel device to enable the nation’s banks to inflate the money supply . . . without suffering quick retribution from depositors or note holders demanding cash.”

Additionally in 1913, the national government finally succeeded in enacting an income tax on individuals, which provided not only an unprecedented source of revenue for the national government but also evolved into a general, all-purpose engine of income and wealth redistribution, government monitoring and surveillance of individuals as well as a mechanism of direct control of individual behavior and social engineering.

Finally, the direct election of Senators, also in 1913, was perhaps the single biggest step away from federalism and the original constitutional design toward mass democracy and a consolidated national government. With the Tenth Amendment well on its way to becoming a dead constitutional letter, with an open-ended Commerce Clause in place to fuel unlimited growth of the national government’s reach, with a revenue-generating and behavior-regulating national income tax in place, and hard currency now able to be replaced by freely printed paper money at the Fed, direct election of Senators completed the necessary and sufficient conditions for a complete consolidation of political power in the hands of a unified national government.

Intergovernmentalism Replaces Federalism

After World War II, federalism was replaced by “intergovernmentalism,” an unlovely term for the unlovely transformation of the sovereign states into bureaucratic extensions of the central government. It happened this way.

The national government further expanded its control over state governments through the fiscal realm by a series of “revenue-sharing” measures, beginning with specific grants-in-aid eventually including huge national entitlement programs such as Medicaid, which entice and require state fiscal participation through direct mandates and statutory fiscal matching provisions. Along with the grant of money came federal mandates on the states, which provided the national government a lever to control and direct state behavior to comport to the desires of Washington. The ultimate fiscal hold on states developed during the Cold War through the expansion of the military-industrial complex, which thoroughly entangled the economic circumstances of the states with defense contractors and the perpetuation of the national war machine.

By 1985, with the Court’s ruling in Garcia, federalism was dead, and state sovereignty was a mere constitutional echo of days past.

Can Federalism And State Sovereignty Be Revived?

Beginning on September 11, 2001, the expansion and consolidation of the national government took another quantitative and qualitative leap forward, this time toward World Empire. As the United States approaches the end of the first decade of the 21^st century and the 220^th year of the American constitutional republic, an unrestrained, largely unlimited national government routinely ignores precious individual rights once held inviolate under the U.S. Constitution, regularly tramples on states’ prerogatives, pursues total information awareness of every detail of individuals’ lives, seeks total behavior control of American citizens and asserts the right to exert its power without the sanction of a declaration of war or legal warrant into any country against any individual anytime, anyplace in the world.

Fear, ignorance and greed, when fueled and manipulated by propaganda reduce people’s natural immune responses to oppressive and parasitic government, allowing politicians to sap their essence and abandon the principles on which their liberty is based. This process by which government grows at the expense of liberty has been the same since the English King and his Parliament oppressed American colonialists. The authors of the Declaration of Independence described the process vividly: “He Erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

So also has Washington, DC erected a multitude of federal programs and taxes, complete with huge bureaucracies and police forces, and sent hither into the states and local communities bureaucrats, revenue agents, police and military personnel to harass the people and eat out their substance. Thus has Federalism failed, state sovereignty been destroyed and liberty eclipsed.

William Watkins summarizes the architectural imperative on which the U.S. Constitution rests:  “Power can be checked only by power. The [Kentucky and Virginia] Resolves point to the states as the natural depository of power to check the national government. . .If the American people are once again to gain control of the national government, it will be through the states.”

But, it won’t be simply a matter of untying the knot or walking this cat back. It is impossible to simply retrace the steps that brought the American political system to its present perilous situation; it will require courage, steadfastness, truculence, defiance and a will of iron to stand up to Washington and stand down the power of the federal government. It will be an undertaking not in principle different from but even more daunting and difficult than the Civil Rights Movement, namely reviving America and restoring liberty by overcoming oppressive government that is acting illegally and immorally with a pointed gun under the color of law.

Dr. Lawrence A. Hunter is President of the Social Security Institute, a 501(c)(4) non-profit organization, and Senior Fellow at Americans for Prosperity and the Institute for Policy Innovation where he does economic research and writes reports on a diverse range of public policy issues.

But rather than shame dissenters into silence with labels like “tenther,” the disdain shown by the political class and its sycophants for the Constitution has only heightened the growing tension between those in America who desire absolute central government, and those who still believe in the federalism and freedom of our founding.

Witness the charges leveled by Virgina attorney general candidate, Steve Shannon, during a recent debate against his opponent, Ken Cuccinelli, who has promised to protect Virginians’ freedoms by upholding the Constitution as it was written.

Which could mean refusing to enforce certain unconstitutional laws passed by the federal government.

From the Washington Post:

Shannon said that through history, Virginians who opposed federal law supported slavery, shut down schools instead of integrating them, prevented interracial marriage and sterilized mentally retarded people.

“When he’s talking about states’ rights, you have to understand the mistakes we have made in the past.”

This is a theme that has been echoed by many on the Left of late, and it represents an opening salvo in the brewing battle between state and federal power that will likely take center stage in upcoming election cycles.

But Steve Shannon and his ideological cohorts are either shockingly ignorant or being very selective in their version of American history. They seem to have chosen race-baiting over an honest discussion about the clear, albeit imperfect, connection between states’ rights and personal freedom.

The Tenth Amendment, states’ rights, and state sovereignty were invoked post-ratification as early as 1798 in response to the Alien and Sedition Acts, which were a direct affront to the constitutional freedoms of speech and association.

Thomas Jefferson himself made clear the relationship the framers envisioned between the federal and state governments when he penned the Kentucky Resolutions, one of the most liberating texts since the Declaration of Independence against those vile Acts:

Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their general government…

[W]hensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force…

[T]his government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but…each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

In other words, whenever there comes a question of constitutional authority, Americans should refer as final arbiter, not to the Supreme Court or the federal government’s inflated opinion of its own powers, but to the letter and spirit of the Constitution. If that fails, each party to this voluntary contract (read: the sovereign states) may decide for itself whether the terms of the agreement have been violated, and if so, what course of action to take.

Between 1798 and the start of the Civil War, there were a number of other instances in which states forcefully reasserted their constitutional rights under the Tenth Amendment, often using Jefferson’s own words. Many of those states were located in the North, where sovereignty was even cited as legal grounds to undermine slavery, through opposition to the (Lincoln-endorsed) federal Fugitive Slave Act.

Perhaps it truly is out of ignorance that Steve Shannon and others like him disparage the principle of states’ rights as defined by racial prejudice, despite overwhelming evidence to the contrary.

But even without a history book, they need look no further than California and the 12 other states that have passed medical marijuana laws in direct conflict with the federal Controlled Substances Act. Thanks to that defiance, hundreds of thousands of desperately sick Americans get access to relief that the federal government has denied them.

Or consider the Real ID Act passed by Congress in 2005. It has since been rendered null and void because more than 20 states exercised their sovereign rights in refusing to implement its patently unconstitutional provisions.

Clearly, America has enjoyed the benefits of dual sovereignty and states’ rights, not just historically but in the last decade, without dissolving into paroxysms of racial animosity.

Therefore it would seem that the logic of the Left regarding the supposed inherent bigotry of the states’ rights movement is flawed in the extreme.

Would they also hold that Islam itself is to blame for violence committed in the name of Allah?

Of course not. That violence is committed by people, just as past laws limiting the freedom of minorities were enacted by people (in the North as well as the South), and not by a political principle.

Leaders like Ken Cuccinelli have joined a growing movement by invoking the Tenth Amendment as it was written to protect individual freedom from the ravages of arbitrary power. Such principles are shared by all those who support a return to the decentralized, federalist government laid out by our Constitution.

These “tenthers” harbor no racist or oppressive motives. In fact, the modern states’ rights agenda is exactly and demonstrably the opposite. To imply otherwise is simply dishonest.

Americans should be proud of their federalist heritage, and they should defend it jealously. Constitutional federalism once changed the world, and, as the true source of America’s strength, it is the only well from which there can be any hope of drawing future greatness.

Josh is a proud “tenther”, freelance writer, and activist originally from the Washington, D.C. area.

“In short, the objective of the libertarian is to confine any existing State to as small a degree of invasion of person and property as possible.”
–Murray Rothbard, Ethics of Liberty

Does it not seem wrong that the mere few hundred politicians in the Federal Government have the power to control 300 million people and influence, either directly or indirectly, the entire planet? Even though the state is unjustified, inconsistent, immoral and inefficient, we should still favor maximum decentralization of power but not because local government is somehow “better” or less evil.

Rather, we ought to favor decentralization because governmental flaws and inherent corruption can be geographically limited, and the amount of damage they inflict remains within its jurisdiction. Those outside the scope of a local government are not affected, whereas those within its scope can find it easier to escape.

Under a Jeffersonian heterogeneous and decentralized hierarchy of power, life in the U.S. could have been quite different. Left alone by the Feds, each of the sovereign states might have had vastly different laws. Indeed, Anthony Gregory correctly points out that “many if not most political tensions would be decentralized down to the state level, and after that, competition and experimentation among states would likely point the way to the benefits of liberalizing and shrinking government at all levels.”

The situation today, however, is totally different. The once sovereign states have now been homogenized by the Federal Government, becoming its administrative arms. No longer is there a major difference between one place and another. Yes, I am aware that some states have significantly smaller governments with less taxation and lower regulations.

And granted, one should not have to move to another place to enjoy freedom just like one should not have to move out of one’s home to avoid a burglar. Yet the unconstitutional departments and programs coming from Washington are so overweening, intrusive and inexorably expansive that it would be preferable to at least have a choice amongst states. Alas, no longer can we vote with our feet.

Under proper federalism, families and groups would decide which style of government best suits them. I do not advocate statism but instead recognize that, lacking a central authority, the local governments would be free to experiment with policies. Don’t like California’s socialist leanings? Move to New Hampshire. Want to carry concealed guns without a permit? Move to Alaska or Vermont. If you don’t like firearms, move to Chicago or D.C. For those who want a nanny environment with heavy business regulations, try Massachusetts.

For better or worse, state laws generally do not cross borders, and their effects are limited. The Feds no longer allow even a limited freedom of movement. Everywhere you go you find the war on terror, the war on drugs, Social Security, income tax, fiat currency and inflation, and an interminable number of abominable and centralist boils of welfare-warfare pus. The only day-to-day sign that your state is part of the Union should be the occasional Post Office, which should not even enjoy a legal monopoly.

Federalism was, thus, an attempt to keep the burgeoning central power away from local life. There is no perfect system, but by exposing failures locally, there can at least be the freedom to avoid bad governments and pursue better ones. Who knows what the outcome would have been had federalism been kept alive, but one thing is certain: it would have been better than what we have today. Instead of fifty states, there is only one, and one is never a choice.

Ultimately, those who love liberty must favor decentralization of power because it is the path towards greater individual freedom and the respect of rights.

Manuel Lora [send him mail] is a freelance TV producer and multimedia specialist in New Orleans.

Copyright © 2005 LewRockwell.com

In a recent piece at the Huffington Post, columnist David Sirota attempted to advance a somewhat tortured political theory, one he called “Progressive Federalism,” that demonstrated two important things; neither of which were likely what he intended.

First, despite the ignorant vitriol against “tenthers,” the state sovereignty movement is alive, well, and continuing to gain much-needed penetration into the national political discussion.

And second, when it comes to advancing statism, some members of the so-called media elite either utterly lack knowledge of history or have no regard whatsoever for the meaning of words.

Sirota’s article starts out innocently enough, quoting the New York Times‘ definition of Progressive Federalism as an ideology whereby “governors and activist state attorneys general [are allowed to] lead the way on environmental initiatives, consumer protection and other issues.”

States setting their own environmental and consumer protection standards? So far so good.

In fact, one might be forgiven for confusing Sirota’s Progressive Federalism with the good old fashioned Jeffersonian kind that was codified in our Constitution.

But then, showing his ignorance of the history behind both federalism and state sovereignty, Sirota follows up with this gem:

[I]n order for Progressive Federalism to happen, the federal government has to be supportive of floors, not ceilings — that is, oriented toward setting minimum progressive regulatory standards that states must at least comply with, not maximum regulatory ceilings that states are not allowed to go above and beyond.

In other words, “governors and activist state attorneys general” may foist as much progressive policy onto voters as they can get away with, but no less than the bureaucrats in Washington, D.C. determine is necessary for their own power lust.

Heads they win, tails you lose.

Experimenting with 50 laboratories of progressivism may sound like a great idea to some, but a wasteful, corrupt political class holding sway over the entire country sounds like a nightmare to me. Which is why the point of federalism was not to institutionalize Sirota’s brand of liberal self-righteousness, but rather to divide power so that no ideological camp could gain control over a central authority and so assert their agenda by force.

Contrary to the prevailing attitude in politics and the media today, the words of our founders do still have meaning for many Americans. They value both the letter and the spirit of the Constitution, and, as its Tenth Amendment underscores, that document intentionally placed each state on coequal footing with the federal government, which the sovereign states themselves created.

In no place other than the very minimal, very enumerated powers delegated to the federal government, did the states surrender any sovereignty at all. Which means that, quite simply, the states don’t need permission to exercise any of the countless rights left to their individual discretion.

If progressives like David Sirota wish to claim that the power of the federal government over their own lives has always been unlimited, simply because its three branches now act as if it is, they are certainly free to do so. Just as we who fear and detest centralized power are free to point out the historical errors in that logic.

But Sirota’s misunderstanding of history (willful or otherwise) is no excuse for allowing him to repackage his paternalistic fantasies as federalism. Intellectual honesty demands that our opponents not justify their incessant drive toward absolutism by perverting the meaning and intent of a constitutional system designed explicitly to abolish it.

Josh is a freelance writer and journalist originally from the Washington D.C. area. He is a cynically optimistic and unrepentant news junkie. His work has been published locally and in Charleston, SC. Email Josh.

by Rob Natelson

Effectively defending American federalism requires us to remember that federalism was not created by the states – nor was it created for state benefit.

Federalism was fashioned by the American people – for the benefit of individuals and of the people as a whole. Justice Sandra Day O’Connor, possibly the most eminent defender of the Tenth Amendment to sit on the modern Supreme Court, put it this way:

The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

CLICK HERE TO READ THE ORIGINAL ARTICLE

It is astonishing that Jeffersonian scholars have paid so little attention to the states’-rights aspect of Jefferson’s thought. If one reads the Kentucky Resolutions of 1798, Jefferson appears to be the father of the Confederate States of America much more that of the United States. Here, Jefferson sought to provide a constitutional interpretation that would at least in principle prevent the union from “consolidating.” He wanted to keep a system of loose federalism very similar to the one embodied in the Articles of Confederation.

Jefferson took advantage of the first opportunity in which the federalists openly disregarded the Constitution to address problems concerning the relationship between the federal government and the states, and his interpretation placed further limitations to federal power on the grounds that the U.S. were established as a republic based on states’ as well as individual rights.

The occasion was the approval of two acts that posed a serious threat to the system of American liberties. The Alien and Sedition Laws were approved in 1798 (under this law, you could be sent to prison for criticizing the president). The Virginia and Kentucky Resolutions, drawn respectively by Madison and Jefferson, were the opposition answer to those laws.

For the first time in American history, Jefferson outlined the political and juridical doctrine of the “State rights school” that became the standard way of viewing relations between States and Nation in the Southern states during the 19th century, up to the end of the War for Southern Independence.

Revived and perfected by John C. Calhoun, this doctrine became the heart of the controversy between the two sections of the country. Jefferson asserted that the States had created a federal government as a simple agent, subordinate to them, for limited and well-defined functions, and that the federal government did not have any right to expand its own authority.

Each individual State, as far as the controversies regarding the Constitution were concerned, had the right to determine when the compact had been breached, and what measures were most appropriate to restore the violated order and redress the wrong. Thus, it was a right (explicitly called by Jefferson “natural,” therefore sacred) of each State to pronounce the illegitimacy of an act of Congress contrary to the constitutional compact.

Jefferson’s account of the nature of the Union–a voluntary contract among free and independent States in order to establish a common caretaker for few and enumerated things–contains a great deal of common sense. In a nutshell, the idea behind the Resolutions is as follows: the States are the ultimate judges of the constitutionality of federal legislation. This requires a rigorously voluntary framework.

But the Supreme Court, a branch of the federal government, at the time was already becoming what it is now, that is to say the arbiter of conflicts between the States and the federal government. In this case, the constitutional framework is threatened, since the federal government, not the Constitution, becomes the judge of its own expansion. More generally, if the States are expected to obey any federal law, regardless of whether the act had been issued according to the Constitution, only lip service is paid to the system of guarantees known as “federalism.”

Despite the ratification of the federal Constitution, Jefferson believed that vis-à-vis each other, the States remained like individuals in the “state of nature.” To characterize the true nature of the American union, for Jefferson, it was sufficient to transpose the Lockean natural rights model from individuals to the States. He never appealed to the theory of sovereignty (a term that does not even appear in his original draft of the Resolutions) to claim that the States are “free and independent”: their liberty and independence lie in the nature of the bond in which they find themselves, and not in the somewhat metaphysical property of being “original political communities.”

Despite the Constitution, the States retain all of their natural rights with respect to one another–exactly like individuals in a “state of nature.” Jefferson’s appeal to nullification was a peculiar application of the theory of natural rights: a “state’s natural right,” the right of nullification, was entirely within the realm of the federal compact, and was by no means an extra-constitutional remedy. In Jefferson’s opinion, such a right derived entirely from the nature of the American union, as it had been historically constructed.

Jefferson understood better than anybody else in his generation that Congress was the real heir to the king and that the concentration of powers in the federal center would have brought about “a government of discretion.” To this ultimate evil he preferred secession, as he wrote again and again. So, yes, Jefferson’s goal was the preservation of men’s natural rights, but he believed that the best way to reach that was through a strict territorial division of power.

Of course there were many inconsistencies in Jefferson’s writings, and his behavior in politics often contradicted his stated political philosophy. That said, it remains indisputably true that Jefferson was a Lockean who believed in the natural right of property and in the rights of the states as independent political entities to determine their own destinies. That so many scholars are unwilling to face these truths reflects, not contrary evidence in Jefferson’s writing, but rather the bias and wishful thinking of the academic class.

Originally published on May 23, 2002 at Mises.org

Marco Bassani, scholar in residence at the Mises Institute and author of the introduction to the Italian edition of Rothbard’s Ethics of Liberty, teaches political thought at the University of Milan.

by Josh Eboch

Anyone who desires a constitutionally limited federal government should remember and celebrate that its limitations would necessarily cut both ways. Because if federal policy actually adhered to the letter of the Constitution, no single ideological camp could wield sufficient power to impose a set of beliefs on the entire country.

Which was exactly the point of our federalist system, and of the 10th Amendment. Beyond specific, enumerated federal powers, an infinite number of issues were intentionally left to the authority of the people through their state governments. And it is to the states that liberals, conservatives, and even libertarians must address all questions extending beyond the constitutional purview of federal authority.

Click Here to Read the Full Article

My home state of California usually interacts with the federal government by genuflecting.  But, on a few issues – very few, that is – they’ve got plenty of backbone.

Most notably, marijuana.

Last week, the California State Senate passed Senate Joint Resolution 14 (SJR14), calling on the federal government to end their “interference in state medical marijuana laws.”  If passed by the Assembly, it will be sent on to Congress and the White House as an official position of the California legislature.

THE INTERSTATE COMMERCE CLAUSE

Under the Constitution of the United States, the federal government is authorized to exercise only those powers which have been delegated to it by the People.   This is affirmed by the ratification of the 10th Amendment, which states, ”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 federal government has often taken the position that it can still wage its “war on marijuana” under the “Interstate Commerce Clause” in Article I, Section 8 of the Constitution.  But, some experts see this kind of explanation as quite a stretch.

Most importantly, the Interstate Commerce Clause, as understood by the founders, was meant to empower the federal government to regulate trade among the states.  One of the chief concerns this addressed was preventing States from imposing restrictive taxes on goods coming from other states.

The Founders, however, made it quite clear that this would not authorize the government to take over fields like agriculture.  Clearly, this hasn’t stopped today’s politicians and judges from turning that original meaning nearly upside down.

FIREARMS TOO

While the stand off on state marijuana laws has been going on for over a decade, firearms is a new front in the Commerce Clause debate.

This year, both Montana and Tennesse passed a “Firearms Freedom Act” taking the position that guns manufactured in state, sold in state, and kept in state – would not be subject to federal laws and regulations under the Commerce Clause.

So far, the only response has been a sternly-written letter from the assistant director of the ATF stating his position that federal law supercedes state law – and the federal government intends to continue its current regulations.

A coalition of the Montana Sports Shooting Association and the 2nd Amendment Foundation is planning a court challenge “to the federal government’s insistence it will regulate those items.”

LEAVE IT TO THE STATES

According to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), this is an issue that should be left up to the states.  He said, “The federal raids on medicinal marijuana providers have dissipated since Eric Holder was sworn in.  That said, the DEA has continued to be involved in a handful of raids in California — each time in cases that appeared to have been solely state matters (e.g., providers were alleged to be involved in state tax disputes or in violation of local ordinances), particularly based on the fact that federal charges were never filed.  If the Obama administration is really serious about leaving this issue solely up to state governments — as it should be — then the federal DEA ought to be leaving the voters of the thirteen states that have enacted medical marijuana policies alone.”

PROMISES MADE, PROMISES BROKEN?

As more states have passed medical marijuana laws, it’s become increasingly difficult and costly for the federal government to enforce its laws.  The Obama Administration has promised to end interference in state medical marijuana programs, but numerous federal raids since January have California lawmakers concerned.

SJR14 Sponsor Senator Mark Leno said that, “Patients and providers in California remain at risk of arrest and prosecution by federal law enforcement and legally established medical marijuana cooperatives continue to be the subjects of federal raids.”

In August, for example, federal agents conducted multiple raids on medical marijuana providers. On August 12, the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service, and local police carried out a paramilitary-style raid on a medical marijuana provider in Los Angeles.

The reason given?  The government claimed that the raided facility had “failed to submit state sales tax revenues.”

Where the Constitution permits federal agencies to enforce state tax code violations, I’ll never know.

A CONSTITUTIONAL REPUBLIC?

Supporters say that the reduction of raids under the Obama administration is a good thing.  But, according to noted Constitutional historian Kevin Gutzman, leaving the fate of such issues to the decision of one sitting president or another is a dangerous precedent.

“Attorney General Holder’s decision to halt the long-standing federal policy of prosecuting medical marijuana distributors is a welcome development,” said Gutzman. “However, so long as the Federal Government does not recognize the states’ Tenth Amendment right to decide the issue of medical marijuana, a return of the bad old days when patients suffering crippling pain were denied this medical treatment is always one election away.”

In other words, any society that rests the fate of its liberty on the “goodness” or “badness” of its leaders is in serious trouble.

“That,” said Gutzman, “is the difference between a democracy and a constitutional republic.”

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