Rob Natelson, recognized national expert on the framing and adoption of the United States Constitution, offers a lesson on the general Welfare clause of the United States Constitution. He discusses the original meaning of the words themselves, the meaning of general welfare in the preamble, the original meaning and understanding of the clause, the taxing clause, the Hamiltonian vs the Madisonian view, anti-federalist concerns, modern interpretations, court cases which have turned its meaning upside down, practical reasons for a limiting view of the clause and the Constitution as a whole, and more.

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What two functions do each of us have that always says we are an individual? It is our mind and our mouth, what we think and what we say. No one can take that away from us. No one can punish us for the thoughts we entertain and how we express them. However, they can try and always have. What are the two most dangerous threats to any dictator? What we think and what we tell others about what we think.

The mind and mouth of the slave are two things that a dictator can never be sure of from anyone they rule. Fear is their only weapon of choice. Fear of retribution, once thought is discovered, is the only way to keep the mind and mouth in check.

In America, following its war of independence and its three constitutions, several of our “Founders” believed it necessary to chain the third constitution down with words that were simple and more forceful to preserve individual freedom. Thomas Jefferson and James Madison demanded a Bill of Rights, the first ten amendments to the newly ratified Federal Constitution.

The first of those ten amendments dealt specifically with the mind and the mouth, with our thoughts and how we express those thoughts. They felt it was not sufficiently nailed down for posterity to prevent political interference with thought and speech. Here it is, just as it was agreed early in the life of our Constitution, which established a small, limited, well defined central government. It was the first of ten to prevent tampering with liberty for the benefit of a few over the many, as is done today.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

To the freedom of the mind and the mouth they added the right to share with others and express to government, what they were thinking and saying, without fear of reprisal by government. In doing that, it expresses what was in the founder’s minds as to their distrust of the new government, as borne out today. The boisterous 2009 Town Hall meetings, on the issue of national health care, demonstrated the view of the people running the government as critical of the citizens speaking out against their legislative proposals. Their terms to describe those objecting, make their minds and mouths appear criminal.

Why, after the convention delegates spent four hot months shaping a new constitution, would these men go a step further in limiting the constitution as they did? They knew, without these plain, simple, forceful words, the politician would have found a backdoor and route to tyranny, as they are doing today while ignoring the constitution. It happened before the ink on the constitution was dry, with the passing and enforcement of the Alien and Sedition Acts.

It took a new rebellion in 1800, when the Federalists were tossed out of office and Thomas Jefferson was elected President. What glorious foresight he and Madison demonstrated fighting for a Bill of Rights. The First Amendment declared religion and its participation the first right, which is the right of thought. The following rights involved how we expressed our thoughts. All the rights in this amendment define the individual as the principle, not the community.

America prospered because of minds and mouths that were free. Men and women were free to think, to conceive, to believe and to achieve what they believed, and they prospered. As they prospered, their families prospered. As their families prospered, so did their communities.

Reflecting individual freedom and the supremacy of legitimate individual self-interests, when compared to the interests of the community, this amendment protects for each individual the right to think thoughts from his own mind, practice his or her own religion, to go to church, speak openly on the concepts of his beliefs and thoughts, print notices in the paper, or print his own paper, to gather with a group of like minded people and to tell elected and appointed officials in government what he thinks.

The present American government is just one step behind arresting and prosecuting people who complain about the wrongs committed by arrogant bureaucrats.

Clay Barham [send him email] has been a candidate for the California legislature and a stand-in talk show host for ABC.  He was educated in physical and behavioral sciences, with a Ph.D. in sociology.  He is the author of five books, including Foundations of Modern American Conservatism and Liberalism: The Roots of Freedom and Tyranny.  His latest is The Changing Face of Democrats: Libertarian Roots Lost.  Visit his website at http://www.claysamerica.com/.

In one of his final acts as president, James Madison did something almost unthinkable by modern standards: he vetoed a bill solely on Constitutional grounds.

President Madison agreed that it made sense to use federal funds for the construction or upgrade of vital roadways and canals within the states. But the Internal Improvements bill of 1817 was contradicted by a higher law, namely the absence of a concomitant enumerated power in Article I, Section 8 of the Constitution.

Being among the Framers of our legal system, Madison understood that when two laws clash, the higher one wins out. True to his oath of office, he refused to challenge the Constitution by endorsing an invalid inferior statute.

Seeing this specific issue coming to the fore, Madison had a couple years earlier let Congress know exactly how everyone’s spending wishes could come to pass. He encouraged Congress to fire up the process for amending the Constitution. Given the substantial support that the notion of federal spending on infrastructure enjoyed, it seems likely that the states would have been willing to delegate such power to the federal government, if asked. Congress instead tried the easy route, in the vain hope that Madison was bluffing.

In the almost two hundred years since Madison’s veto, the federal government’s spending authority has still not been officially augmented. But that has not prevented our national leaders from establishing a fantastic variety of new spending programs. Politicians of every supposed political stripe (including many who ostensibly repudiate “big government”) have come to accept federal omnipotence as a given.

Those who still give lip service to the Constitution as law (as opposed to some sort of “guiding document”) justify spending as they please through spontaneous discovery of the Constitution’s “living, breathing” nature, a catch-all interpretation of the general Welfare clause, or the favoring of novel semantic construction over plain-English intent. They have appointed a complicit judiciary to provide cover.

In its end-run around federal limitations, the establishment was skillfully guided by America’s ‘progressive’ intelligentsia. Leftist academics, specifically, provided the philosophical undergirding of expansionist policy.

Of course, systematic misinterpretation of the Constitution was not the only possible route to a dominant federal government. Instead of pushing shortcuts, principled progressives could have advocated that federal prerogative to new powers be secured by Constitutional amendment prior to legislative actualization, in sync with Madison’s exhortation to Congress.

Over time, the states might well have become willing to formally turn over all sorts of responsibilities to the federal government. With every war it won, and with every year it persisted as other governments around the world fell to revolution, the US government appeared to be more competent and stable, worthy of taking on new roles. Had the left pursued a measured, truly Constitutional path to federal expansion, we might today be like the countries of Western Europe, with a centrally-managed welfare state that is completely legal.

But, on the face of it, we cannot expect progressives to be overly-sensitive to the charge that, because they declined to play by the rules, their whole racket is illegitimate. After all, they got their way, and they and their fellow spendthrifts are more or less in charge at every level of government. Why should they regret having bypassed the burdensome formality of the amendment process?

There is actually a very good reason. Given its history, how seriously can the modern left expect to be taken when, for example, it decries DEA raids on California medical marijuana clinics, on the grounds that the clinics comport with state law? Appeal to federalism is, by right of equity, no longer available to the left. As a matter of fact, every time Congress tries to reverse state measures on assisted suicide, or to regulate marriage, the left itself must share the blame.

Through their demonstrated willingness to cut corners, progressives have also hobbled their advocacy for the preservation of the civil liberties enshrined in the Bill of Rights. The futile cries from the left that the Bush Administration “shredded the Constitution” through its eavesdropping and detention policies were, on one level, quite galling.

Having worked so diligently to debase the structure set up by the opening articles of the Constitution, progressives hardly have purchase to claim offense when that document’s first ten amendments are disrespected. The Constitution is not an à la carte menu.

The mainstream right has, of course, had its own problems with consistent, objective respect for the rule of law. For example, those whose evaluation of War on Terror policies begins and ends with “Bush kept us safe” should consider that, but for lingering respect for the Second Amendment, private gun ownership would likely be a thing of the past. But the right’s misdeeds are beyond the specific scope of this article.

Even if today’s progressives come to fully comprehend the destructiveness of past political mistakes, it is far too late for them to set things right. They are by now completely invested in the legislative fraud through which the institutions of unlimited federal government were created and nurtured.

But the very fact that these institutions stand on such shaky legal ground could be the germ of their eventual demise. If and when we start actually obeying the rules, then higher Constitutional law will automatically trump the statutory law upon which the federal behemoth depends. Fiscal liberalism will be immediately out of business. So we should in this sense be grateful for the left’s procedural delinquency.

Once upon a time, progressives had an opportunity to do their thing, by the book. But they blew their chance.

Michael Cummins is the Clark County, Washington, coordinator for Campaign for Liberty. He is also an operations specialist in the telecommunications industry and a part-time musician.

Copyright © 2009 Campaign for Liberty, published with permission.

The interest of the current administration in creating a federal national health care program, has provoked discussion of whether the federal government has sufficient power to do so. Often, the discussion is phrased as whether “the government” has sufficient power. Others have asked if the federal government has the power to compel individuals to purchase health insurance.

My article (“Limits to Regulation due to the Interaction of the Patent and Commerce Clause”, in CATO Journal, Vol. 20, No. 3, Winter 2001, pages 401 – 423), gives an insight into both questions, by answering this one: why does the so-called “patent clause” of the federal constitution, not use the word “patent”?

If the word “patent” meant what we currently mean by that term, then the clause could have simply stated the relevant power by saying the federal government can issue patents. Instead, the “patent clause” carefully states that the Congress has the power to issue exclusive rights for a limited time to authors or inventors. It does not use the word “patent” at all.

As reviewed in that article, this use of words tells us a great deal about the purposes and structure of the federal constitution. Citing principal legal scholars of the day, the article shows that at the time the federal constitution was written, the word “patent” actually had a much broader meaning. It referred to any government grant of an economic right, called in the article a “general patent power”. Of course if the federal government can grant such rights without limit, we would not need to ask if the federal government has such power over health care.

Yet we ask. On the other hand, when the US states have created health care programs, or otherwise regulated matters like health insurance, the existence of that power in a state has been little questioned. And note: this common understanding is consistent with the 10th Amendment to the federal constitution, that powers not enumerated to the federal Congress are reserved to the states respectively or to the people.

So looking carefully at the choice of words in the “patent clause” tells us a great deal on what the federal government cannot do. The only general patent power granted by the federal constitution to the federal Congress is the specifically described power to create what we today call patents. All other aspects of the general patent power were not given to the federal government, so if exercised at all could be done only by states.

For example, the states can, and normally do, protect the general welfare by requiring holders of driver licenses (issue of which is a proper exercise of a general patent power by a state government) to also buy accident insurance. The federal government however does not regulate drivers or issue of driver licenses within the jurisdiction of any state.

Given this careful allocation of general patent powers, principally to the states, what then is the role if any of the federal government in matters of commerce? Since the word “patent” when the federal constitution was written refers to allocation of economic rights, and those powers generally were reserved to states (or the people), then the commerce language of the federal constitution cannot be interpreted as a general allocation of such power to the federal government. Had that been the intent, the simple grant to Congress of a power to issue patents, without any other words, would have been sufficient.

Now, the federal commerce clause (Article I, Section 8 of the federal constitution) says that Congress has the power: “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” But we just saw that Congress has no power to regulate commerce among the several States by the use of an exclusive federal grant of markets, or indeed to allocate those markets, because to do so in that form would be to exercise a power (the “general patent power”) not granted. Since the Congress has no power to allocate economic rights (except what today we call patents), therefore, the commerce language must have some other meaning.

But that meaning also is not a mystery. A review of other powers of the federal government in relation to states, shows that the role of the federal government is to prevent overly restrictive use of powers by the states. Thus, in commerce among the several states, (“interstate commerce”) the role of the federal government was not to allocate rights, but to prevent the states from unduly closing commerce when they exercise their own powers to allocate rights.

This fact is consistent with the historical problem of the day, when states had often done exactly that, to the detriment of the general welfare of all. The “general welfare” words of the federal constitution in no sense changes this separation of powers. The federal government protects the general welfare by preventing excesses of exercise of power by the states.

The details of those arguments are laid out in the referenced article. The application to the health care debate seems straight forward: the states can require health insurance or not, as each may choose; the states could create state supported systems of health care for their citizens, if they choose. The federal government can do neither.

What the federal government might do is this: if in the exercise of their rights to regulate health insurance or provide it, the states create rules that obstruct commerce in health care, then the Congress can prevent such obstruction. It is not simply ironic that the one thing the Congress might be able to constitutionally do with regard to health care, to remove obstruction to competitive access, is not among those included in the proposed legislation.

Paul A. Ballonoff operates Ballonoff Network in Alexandria, VA.

Copyright © 2009, Paul A. Ballonoff

During the Constitutional Convention, from May to September 1787, delegates from the colonies were to gather together for the express purpose of amending the Articles of Confederation to form a “more perfect union” (NOT a completely different union!). The men that met in Philadelphia, Pennsylvania, were under direct and limited orders from their states to attend the Federal Convention explicitly to preserve the federation and State rights and to correct the errors of the existing federal government for the limited purposes of handling foreign affairs, commerce among the states and common defense.

Yet, during that private and secret convention, there were men who proposed that a national system be established in place of their current federal system, destroying State sovereignty in direct contradiction to their orders. (Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, vol. 1, 2nd ed., [Philadelphia, PA, JB Lippincott, 1891], 121) Of course, the public was not aware of this fact until years after the ratification of the Constitution, when the notes taken in the convention were printed and released to the public.

Indeed, those who proposed such a national system of government (e.g., Alexander Hamilton, John Dickinson and James Madison) would not have the people of the states aware of this proposal for fear of outright rejection of the Constitution and for fear that they would remove their delegates from the convention altogether, giving no chance of success for the ratification of a new Constitution. It was hush-hush for good reason. In fact, Alexander Hamilton was so tactful on the subject that he did not even present his nationalistic notions as a constitutional proposal, but only as his ideas of what America should be. (Ibid., 123) Despite these proposals, in the end, it was a federalist system that prevailed–a union of states and not a union of people, whereby the states retained complete and absolute sovereignty over all matters not delegated to the federal government. The states were indeed co-equal with the federal government. So, what was it about the national system that was rejected during the convention?

The most notable proposal reveals the underlying foundation for all national principles: that is, the national government possesses superior sovereignty to force the states to submit to the laws made by the national government and to negate any State law it deems repugnant to the articles of union. This supreme power was proposed (but rejected) as follows during the Federal Convention: the to-be national government should possess the power to “negative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of union, or any treaties subsisting under the authority of the Union.” (Ibid., 207) Hamilton, and his like, would have loved it had this national principle of supreme sovereignty been accepted by the delegates. Thankfully, it was not accepted. In fact, as the convention progressed, what became apparent to those who advocated for this national form of government is that their ideas would never be accepted and ratified.

History proves with absolute certainty that a national government and its assuming principles were rejected, not only by the framers of the US Constitution, but also by those who sent delegates to the Federal Convention and who ratified the US Constitution at their State conventions. More important than the limited powers of the federal government, the people of the states rejected the nationalist doctrine that the federal government had the power to negate State laws that it deemed contrary to the Constitution. (John Taylor, New Views of the Constitution of the United States, [Washington DC, 1823], 15).

So, how is it that while the people of the states expressly forbade the federal government from interfering with the internal affairs of the states the federal government can now control nearly every facet of life within the states and the states supposedly can do absolutely nothing about it? Most attorneys who think they know so much about America’s history and the US Constitution would say, “The United States Supreme Court is given the power to say what the Constitution means and that over the years, they have interpreted Congress’ power to reach the internal affairs of a State.” It is the “living Constitution” idea, simultaneously coupled with nationalistic doctrine, which proclaims that the actual meaning of the Constitution can change over time, and that such change is constitutional and does not deny the people their freedom protected under the compact of the Constitution.

Interestingly, the “living Constitution” idea is only used when it promotes a constitutional “construction” that expands and empowers the federal government and neuters the State governments. The “living Constitution” idea (advanced by the British Parliament) in fact is the very notion that caused America’s War for Independence. (Claude Halstead Van Tyne, The Causes of the War of Independence, Volume 1, [Boston, MA: Houghton Mifflin Company, 1922], 235, 237)

The ludicrous proposition of a “living Constitution” begs numerous critical questions involving the very foundation of a free society, not the least of which is this: If the meaning of the Constitution can change over time, why did the Constitution’s framers spend nearly five months debating which words should be placed in the Constitution? More than that, why would the framers be so emotionally, mentally, intellectually and intensely involved in the question of what form of government we will have: national or federal?

How can it be that the judiciary branch of the federal government, which is not even politically responsible to the people or the states whatsoever (and only ever so slightly to the other federal branches), has the sole and complete power to say that the states have no power to interpret and comport to the US Constitution as they deem constitutional, when that same power was expressly rejected to the national government during the convention? After all, Hamilton and Madison both admit throughout the federalist papers that the states have complete and absolute sovereignty regarding the powers retained by them and granted to them by the people of each State, just as any foreign nation would. Both Hamilton and Madison admit that the only check on power is another independent power and thus, the only real power that could check federal power was State power. They even expected that the states would use their sovereign and independent power to the point of being the voice and, if necessary, the “ARM” of the people to implement a common defense against the federal government.

Both Hamilton and Madison admit that the federal government can never force the states out of existence and can never strip them of their rights and powers possessed prior to the ratification of the US Constitution, except as delegated to the federal government. They even refer to the states’ right of self-defense in this regard to resist federal tyranny. Was this mere “bait and switch” rhetoric to get the people of the states to ratify what they thought was a pure federal system? How can the states possess the absolute sovereign power to check federal tyranny when they are bound to submit to the federal government’s interpretation of the Constitution? The two positions are necessarily incompatible with each other. To say that you have power, so long as I say you have power is to deny your power altogether.

Quite obviously, in no place does the Constitution grant to the federal government (in any branch) superior sovereignty over the states. Instead, the Constitution requires ALL parties to it (State and federal) to comply with the Constitution, as it is the supreme law of the land. All the framers agreed that federal government and federal law do not equal the “supreme law of the land.” Both the federal government and the federal laws are bound by the terms to which all must comply. Thus, all parties must be watching each other to ensure each is complying with the compact. And as was admitted by even the most ardent nationalist (i.e., Daniel Webster) of America’s earlier history, each party to a COMPACT has the sole right to determine whether the other party has complied with the compact.

But over the years, a political idea contrary to our original federal system was adopted–not through open discussion and consent, but by fraud and force. This position states that whatever the federal judiciary rules equates to the “supreme law of the land” and the states must comply therewith, regardless of whether the federal law usurps the power the states retained under the Constitution. What the nationalists were unable to obtain through honest and open debate during the conventions they have obtained through the erroneously construed “supremacy” clause of the Constitution.

What the federal government was denied through constitutional debate and ratification the nationalists have procured through masquerade, subterfuge and trickery. America has been duped into accepting a national government, not by interpolation, but by deceptive “construction.” If the federal government has the power to usurp its powers without a countermanding power checking its encroachments, where is the genius in our framers’ form of government?

Was this form of government the form that best secured our happiness and freedom? And if our framers in fact bequeathed to us a federal system, whereby the states were co-equal with the federal government in sovereignty and power regarding their powers, then where comes the notion that we now have a national system, whereby the states are mere corporate branches of the federal government? Where were the constitutional debates on that subject? Where was the surrendering of sovereignty by the states, which can only be done through expressed and voluntary consent? Where was the right of the people to establish the form of government most likely to effect their safety and happiness? Do we just accept the fact that our form of government can change over time without express and legal action being taken to effect that change? God forbid!

In 1776, the colonies rejected the European (nationalist) form of government. In the UNITED STATES, the people of the states ardently believed that their freedoms would be best protected if each of their agents (State and federal) possessed equal power to check the other against encroachments of power and freedom. This was the “more perfect union” of the US Constitution. How could the founders have suggested that the US Constitution was a “more perfect union” as a nationalist system, when the nationalist system was the very system they seceded from and rejected? That is nonsense!

Ironically, the very document that was designed to perpetuate these principles of federalism has in fact been de-constructed to destroy those same principles, leaving us with the very form of government that our framers and the Constitution’s ratifiers rejected. In the end, if the people of the states do not once again reject this national form of government and assert and defend the principles of federalism–the principles upon which America was founded–then this supposed federal power of constitutional “construction” will in fact be our freedom’s destruction.

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.

The following is a letter from Tennessee to the other 49 State Legislatures

We send greetings from the Tennessee General Assembly.  On June 23, 2009, House Joint Resolution 108, the State Sovereignty Resolution, was signed by Governor Phil Bredesen.  The Resolution created a committee which has as its charge to:

• Communicate the resolution to the legislatures of the several states,
• Assure them that this State continues in the same esteem of their friendship,
• Call for a joint working group between the states to enumerate the abuses of authority by the federal government, and
• Seek repeal of the assumption of powers and the imposed mandates.

It is for those purposes that this letter addresses your honorable body.

In 1776, our founding fathers declared our freedom in the magnificent Declaration of Independence; our guide to governance.  They established a nation of free and independent states.  Declaring that the purpose of our political system is to secure for its citizens’ their natural rights.  The Constitution authorizes the national government to carry out seventeen enumerated powers in Article 1, Section 8 and the powers of several of the ensuing amendments.

At the time of the Constitutional ratification process James Madison drafted the “Virginia Plan” to give Congress general legislative authority and to empower the national judiciary to hear any case that might cause friction among the states, to give the congress a veto over state laws, to empower the national government to use the military against the states, and to eliminate the states’ accustomed role in selecting members of Congress.  Each one of these proposals was soundly defeated.  In fact, Madison made many more attempts to authorize a national veto over state laws, and these were repeatedly defeated as well.

There are clear limits to the power of the federal government and clear realms of power for the states.  However, the simple and clear expression of purpose, to secure our natural rights, has evolved into the modern expectation that the national government has an obligation to ensure our life, to create our liberty, and fund our pursuit of happiness.

The national government has become a complex system of programs whose purposes lie outside of the responsibilities of the enumerated powers and of securing our natural rights; programs that benefit some while others must pay.

Today, the federal government seeks to control the salaries of those employed by private business, to change the provisions of private of contracts, to nationalize banks, insurers and auto manufacturers, and to dictate to every person in the land what his or her medical choices will be.

Forcing property from employers to provide healthcare, legislating what individuals are and are not entitled to, and using the labor of some so that others can receive money that they did not earn goes far beyond securing natural rights, and the enumerated powers in the Constitution.

The role of our American government has been blurred, bent, and breached. The rights endowed to us by our creator must be restored.

To be sure, the People created the federal government to be their agent for certain enumerated purposes only.  The Constitutional ratifying structure was created so it would be clear that it was the People, and not the States, that were doing the ratifying.

The Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government, and also that which is absolutely necessary to advancing those powers specifically enumerated in the Constitution of the United States.  The rest is to be handled by the state governments, or locally, by the people themselves.

The Constitution does not include a congressional power to override state laws.  It does not give the judicial branch unlimited jurisdiction over all matters.  It does not provide Congress with the power to legislate over everything. This is verified by the simple fact that attempts to make these principles part of the Constitution were soundly rejected by its signers.

With this in mind, any federal attempt to legislate beyond the Constitutional limits of Congress’ authority is a usurpation of state sovereignty – and unconstitutional.

Governments and political leaders are best held accountable to the will of the people when government is local. The people of a state know what is best for them; authorities, potentially thousands of miles away, governing their lives is opposed to the very notion of freedom.

We invite your state to join with us to form a joint working group between the states to enumerate the abuses of authority by the federal government and to seek repeal of the assumption of powers and the imposed mandates.

Susan Lynn [send her email] is a member of the Tennessee General Assembly; serving on the Commerce Committee and Chairman of the Government Operations committee. She holds a BS in economics and a minor in history. She is the Chairman of the American Legislative Exchange Council’s Commerce Task Force.  Visit her blog at http://susan-lynn.blogspot.com

The Third Amendment to the U.S. Constitution provides that “no Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Obviously, the Third Amendment has little relevance today. But what is relevant for us today is the mindset that underlay the passage of that amendment – a mindset of deep antipathy toward militarism and standing armies. Our ancestors’ fierce opposition to a powerful military force was consistent with their overall philosophy that guided the formation of the Constitution and the passage of the Bill of Rights.

While the Framers understood the need for a federal government, what concerned them was the possibility that such a government would become a worse menace than no government at all. Their recent experience with the British government – which of course had been their government and against which they had taken up arms – had reinforced what they had learned through their study of history: that the biggest threat to the freedom and well-being of a people was their own government.

Thus, after several years operating under the Articles of Confederation, the challenge the Framers faced was how to bring a federal government into existence that would be sufficiently powerful to protect their rights and liberties but that would not also become omnipotent and tyrannical.

Their solution was the Constitution, a document that would call the federal government into existence but limit its powers to those expressly enumerated in the document itself. Thus, a close examination of the Constitution shows that the powers of the U.S. government originate in it. The idea was that if a power wasn’t enumerated, federal officials were precluded from exercising it.

Even that, however, was not good enough for our American ancestors. They wanted an express restriction on the abridgement of what had become historically recognized as fundamental and inherent rights of the people. In other words, they wanted what could be considered an express insurance policy for the protection of their rights. While government officials could not lawfully exercise powers that were not enumerated in the Constitution, the Bill of Rights would make the point even more emphatically that federal officials had no authority to abridge the fundamental rights of the people.

The Constitution provided other measures to protect against the rise of omnipotent and tyrannical government. One was the division of government into three separate branches, with the aim of establishing a system of “checks and balances” that would prevent the rise of powerful centralized government. Another was the Second Amendment, which ensured that the people would retain the means of resisting tyranny or even violently overthrowing a tyrannical government should the need arise.

Given their view that the federal government they were bringing into existence constituted the biggest threat to their freedom and well-being, constantly on the minds of our ancestors was the primary means by which governments had historically subjected their people to tyranny – through the use of the government’s military forces. That is the primary reason for the deep antipathy that the Founders had for an enormous standing military force in their midst. They understood fully that if such a force existed, their own government would possess the primary means by which governments have always imposed tyranny on their own people.

Using armies for tyranny

Historically, governments had misused standing armies in two ways, both of which ultimately subjected the citizenry to tyranny. One was to engage in faraway wars, which inevitably entailed enormous expenditures, enabling the government to place ever-increasing tax burdens on the people. Such wars also inevitably entailed “patriotic” calls for blind allegiance to the government so long as the war was being waged. Consider, for example, the immortal words of James Madison, who is commonly referred to as “the father of the Constitution”:

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people…. [There is also an] inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and … degeneracy of manners and of morals…. No nation could preserve its freedom in the midst of continual warfare.

The second way to use a standing army to impose tyranny was the direct one – the use of troops to establish order and obedience among the citizenry. Ordinarily, if a government has no huge standing army at its disposal, many people will choose to violate immoral laws that always come with a tyrannical regime; that is, they engage in what is commonly known as “civil disobedience” – the disobedience to immoral laws. But as the Chinese people discovered at Tiananmen Square, when the government has a standing army to enforce its will, civil disobedience becomes much more problematic.

Consider again the words of Madison:

A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.

The idea is that governments use their armies to produce the enemies, then scare the people with cries that the barbarians are at the gates, and then claim that war is necessary to put down the barbarians. With all this, needless to say, comes increased governmental power over the people.

Sound familiar?

The Founding Fathers

Here is how Henry St. George Tucker put it in Blackstone’s 1768 Commentaries on the Laws of England:

Wherever standing armies are kept up, and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.

Virginian Patrick Henry pointed out the difficulty associated with violent resistance to tyranny when a standing army is enforcing the orders of the government:

A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment?

When the Commonwealth of Virginia ratified the Constitution in 1788, its concern over standing armies mirrored that of Patrick Henry:

… that standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases the military should be under strict subordination to and governed by the civil power.

Virginia’s concern was expressed by North Carolina, which stated in its Declaration of Rights in 1776,

that the people have a Right to bear Arms for the Defence of the State, and as Standing Armies in Time of Peace are dangerous to Liberty, they ought not to be kept up, and that the military should be kept under strict Subordination to, and governed by the Civil Power.

The Pennsylvania Convention repeated that principle:

… as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.

The U.S. State Department’s own website describes the convictions of the Founding Fathers regarding standing armies:

Wrenching memories of the Old World lingered in the 13 original English colonies along the eastern seaboard of North America, giving rise to deep opposition to the maintenance of a standing army in time of peace. All too often the standing armies of Europe were regarded as, at best, a rationale for imposing high taxes, and, at worst, a means to control the civilian population and extort its wealth.

In fact, as Roy G. Weatherup pointed out in his excellent article, “Standing Armies and Armed Citizens: A Historical Analysis of the Second Amendment,” the abuses of their government’s standing army was one of the primary reasons that the British colonists took up arms against that army in 1776:

[The Declaration of Independence] listed the colonists’ grievances, including the presence of standing armies, subordination of civil to military power, use of foreign mercenary soldiers, quartering of troops, and the use of the royal prerogative to suspend laws and charters. All of these legal actions resulted from reliance on standing armies in place of the militia.

Moreover, as William S. Fields and David T. Hardy point out in their excellent article, “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History,” the deep antipathy that the Founders had toward standing armies followed a long tradition among the British people of opposing the standing armies of their king:

The experience of the early Middle Ages had instilled in the English people a deep aversion to the professional army, which they came to associate with oppressive taxes, and physical abuses of their persons and property (and corresponding fondness for their traditional institution the militia). This development was to have a profound effect on the development of civil rights in both England and the American colonies…. During the seventeenth century, problems associated with the involuntary quartering of soldiers and the maintenance of standing armies became crucial issues propelling the English nation toward civil war.

Did the antipathy against standing armies mean that our ancestors were pacifists? On the contrary! After all, don’t forget that they had only recently won a violent war against their own government and its enormous and powerful standing army.

In their minds, the military bedrock of a free society lay not in an enormous standing army but rather in the concept of the citizen-soldier – the person in ordinary life in civil society who is well-armed and well-trained in the use of weapons and who is always ready in times of deepest peril to come to the aid of his country – but only to defend against invasion and not to go overseas to wage wars of aggression or wars of “liberation.” As John Quincy Adams put it in his July 4, 1821, address to Congress, America “does not go abroad, in search of monsters to destroy.”

U.S. foreign policy

Are the ideas and principles of the Founding Fathers relevant today? They couldn’t be more relevant. Many decades ago, President Dwight Eisenhower warned us about the growing power of the military-industrial complex in American life. Unfortunately, the American people failed to heed his warning. The result has been an ever-growing military cancer that is bringing death, ruin, shame, and economic disaster to our nation – just as our Founding Fathers said it would.

More and more people are finally recognizing that the anger and hatred that foreigners have for the United States is rooted in morally bankrupt, deadly, and destructive foreign policies – policies that have been enforced by America’s enormous standing military force. The resulting blow-back in terms of terrorist attacks, such as those on the World Trade Center in 1993 and 2001, have been used as the excuse for waging more wars thousands of miles away, and those wars have produced even more anger and hatred, with the concomitant threat of even more terrorist counter-responses. All that, in turn, has provided the excuse for more foreign interventions, ever-increasing military budgets, consolidation of power, increasing taxes, and massive infringements on the civil liberties of the American people.

It is not a coincidence that the president’s indefinite detention and punishment of American citizens for suspected terrorist crimes without according them due process, habeas corpus, right to counsel, jury trials, freedom of speech, or other fundamental rights guaranteed by the Constitution and the Bill of Rights are being enforced by the standing army that our ancestors warned us against. And make no mistake about it: Given orders of their commander in chief, especially in a “national security crisis,” to establish “order” in America, U.S. soldiers will do the same thing that soldiers throughout history have done – they will obey the orders given to them. Just ask the survivors of the massacre at the Branch Davidian compound at Waco or the victims of rape and sex abuse at Abu Graib prison in Iraq or Jose Padilla, an American citizen who was denied due process, habeas corpus, and other rights accorded by the U.S. Constitution.

In determining the future direction of our nation, the choice is clear: Do we continue down the road of empire, standing armies, foreign wars and occupations, and sanctions and embargoes, along with the taxes, regulations, and loss of liberty that inevitably come with them? Do we continue a foreign policy, enforced by the U.S. military, that engenders ever-increasing anger and hatred among the people of the world, which then engenders violent “blowback” against Americans, which is in turn used to justify more of the same policies?

Or do we change direction and move our nation in the direction of the vision of our Founding Fathers – toward liberty and the restoration of a republic to our nation – toward a society in which the government is limited to protecting the nation from invasion and barred from invading or attacking foreign nations – a world in which the United States is once again the model society for freedom, prosperity, peace, and harmony – a nation in which the Statue of Liberty once again becomes a shining beacon for those striving to escape the tyranny and oppression of their own governments?

Jacob Hornberger [send him mail] is founder and president of The Future of Freedom Foundation.

Copyright © 2004 Future of Freedom Foundation

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.

The following article is from the June 1950 issue of analysis, vol. VI, no. 8, and was reprinted on LewRockwell.com

The Constitution that came out of the Philadelphia convention in 1787 was not acclaimed a “divine document.” On the contrary, the folks were rather skeptical about it and made ratification difficult. Yet there was no organized opposition. The Constitution simply ran head on into the individualism that had defied the arrogance of British Toryism. The backcountry, which started at the outskirts of the few seaboard cities, was as suspicious of a national government as if been hostile to foreign intervention. It was this spirit of self-reliance, of wanting to be let alone, that the ratifiers had to face and to which they addressed their argument in The Federalist.

Since the doctrine of States’ Rights is rooted in this early opposition to the Constitution, any effort to revive it should take into account the psychological barrier that confronted Madison and Hamilton. States’ Rights and individualism are historically related. It would seem to be good strategy, therefore, for a modern decentralization movement to plot its course by the same star. True, it is impossible to reconstruct the environment in which the individualism of early America was tempered; there is no haven of free land around. But the urge to be oneself, to work out one’s destiny without let or hindrance, is not a matter of environment; it is inherent in the human make-up. Even the socialist, for all his talk of immolation for the good of a mass, betrays by his very rebellion the altogether human urge for self-expression through free choice. We all have it in varying degrees; none is ever rid of it. The necessity of existence may impel us to make adjustment to conditions, but the ego thus put under restraint is not destroyed. The indestructibility of the ego is certified by the revolutionary movements that characterize the history of man. A States’ Rights movement is in essence a revolution, an opposition to the urgency of political power to limit choice and compel adjustment to its will and must rest its case on this fact. It is a certainty that any attempt to cut down the power of the central government is a fatuous gesture unless there is some feeling for freedom in the country.

At any rate, Hamilton and Madison and Jay were faced with the latent fear of political interference that was strong in the American of their day. It is for that reason that the logic of The Federalist is underlined with a note of supplication. In view of the high place the Constitution has attained in the hierarchy of American values, this pleading for its ratification is suggestive. Why was it necessary? For answer, we might recall what John Adams, writing in 1818, said about the revolution. It was effected, he declared, “before the war commenced. The revolution was in the hearts and minds of the people.” It was exactly what was in the hearts and minds of the people, their character, that constituted the opposition to nationalism in 1787 and explains why the Constitution put so many restrictions on the powers of the proposed government, not the least of which was the sharing of sovereignty with the state governments on a basis of equality. It could not have got by otherwise.

The Backbone of States’ Rights

Above all things these Americans cherished freedom. They had come to it by way of hardship and it stuck to their ribs. Many of them were but a generation away from indentured servitude; still quite alive was the memory of the horrors of migration; they had paid a high price for freedom. No government had given them their prized possession; they had literally hewn it out of the forest and they meant to keep it. All their experience with government, in the Europe from which they fled or in the colonies, taught them to distrust political power. Perhaps some government had its place in the scheme of life and might be tolerated – say, for organized opposition to the Indians or for the building of roads, and such things – but on the whole, the less of government the better. At best, it could never provide freedom, for that was something you got by your own effort; at worst, it could and would rob you of your freedom and therefore needed constant watching.

But how can one watch a government that operates from some distant seat, completely out of reach and behind a bulwark of laws of its own making? One has chores to do. The agrarian individualist was not taking chances. A government of neighbors, amenable to the will of neighbors, he would countenance and support, but he was intuitively opposed to a national establishment. The authors of the Constitution were thus put under the necessity of convincing him – and he was the unorganized majority – that the proposed government would in no way deprive him of the freedom he enjoyed under his home-made establishment; and for the title it would ask of him, in the way of taxes, it would provide him with services the local government could not furnish.

That is a distinguishing feature of The Federalist, a party platform replete with promises of what the party would not do. It is strange reading, when compared to modern political pledges, in its negative assurances. The delegates to the Philadelphia convention were sent there by the state governments with instructions to fix up some defects in the Articles of Confederation, for the Congress operating under that charter was not functioning satisfactorily; the general economy was laboring under the handicap of interstate tariffs, lack of a uniform money, difficulty in enforcing contractual obligations. These deficiencies were blocking trade, and trade was the great concern of the new country. But, when the delegates came up with a brand new Constitution, declaring that a mere overhauling of the Articles was impractical, suspicion was aroused. It was therefore incumbent on the framers of this Constitution to prove its harmlessness, as far as individual freedom was concerned. The new government would do what the states separately could not do and no more. Only when a state could not maintain order and called upon the government for help would it take part in local matters. In fact, the federal government would be little more than the foreign department for the state governments.

In paper number forty-five Madison writes: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which last part the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.

“The operations of the federal government will be most extensive in times of war and danger; those of the State governments in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. . .” And so The Federalist goes on; promise after promise that the local governments shall remain immune.

Dualism and Individualism

Thus came the doctrine of States’ Rights. It came as a concession to the dominant individualism of the times, to the spirit of freedom that was in the people. Perhaps with some of the delegates it was a considered theory of government; there is reason to believe that most of them would as soon have left it out of the Constitution. Hamilton, at any rate, would most certainly have preferred a national rather than a federal government, with undivided sovereignty, but the genius of the American people was decidedly against him. The Constitution was, after all, only a political instrument, and as such had to confine its moralities to a preamble; in its working parts it had to conciliate divergent interests. The individualist was too important an interest to be ignored; he had to be appeased, and dual government was the price he demanded.

The doctrine of dualism came up for discussion many times between ratification and the Civil War. Almost always the debates were legalistic. On this ground, the nullifiers and the secessionists had the best of it, for nothing could be more certain than that the Union was conceived as a voluntary association of the thirteen states and that the states had existed as political entities for nearly a hundred and fifty years before the Constitution was thought of. Nor was there any question, as John C. Calhoun constantly insisted, that the Union was an organization of states, not of citizens; a Virginian was a Virginian before he was an American, and that was written into the Constitution as a condition of ratification.

But the debates were singularly free of the ideological background of the doctrine. States’ Rights was invoked in support of sectional and economic interests rather than to protect the immunities of the individual from federal encroachment. In 1814 the New England manufacturers brought it up; before the Civil War the South made much of nullification and secession because of its tariff disabilities. If the present embryonic movement to restore some measure of local autonomy is to achieve any success, it must go back to beginnings; it must make its appeal to the unquenchable yearning for freedom; it must convince the American that his best chance for a good and freer life is under the aegis of a government of neighbors.

The Theory of Government

It has always been the boast of States’ Righters that they were the true Constitutionalists, that they adhered to the letter as well as to the spirit of the original document. The evidence supports the claim. To be consistent, the current crop of fundamentalists might look to the basic theory of government written into the Constitution. This theory, borrowed from John Locke, holds that the only purpose of government, and its only competence, is to protect private property. If it presumes to go beyond that function it is guilty of misfeasance; if it fails to perform that function it is derelict in its duty. “The first object of government,” says Madison in the tenth number of The Federalist, is the protection of “the diversity in the faculties of men, from which the rights of private property originate.” From that theory, despite their willingness to make compromises, the Founding Fathers never deviated.

From the standpoint of this theory of government, the Constitution has not only been violated, it has been destroyed. What exists now is only a faulty facsimile of the original document. The process of mutilation began a long time ago, in the Jackson Administration, when political gangsterism announced that “to the victors belong the spoils.” But not until the Sixteenth Amendment was incorporated into the Constitution was its character completely altered. The income tax insinuated. a theory of government quite unknown to the Founding Fathers, holding that the function of government is to act as pater familias to society as a whole. To perform that role, the government must have access to all that is produced, as a matter of right, just as a feudal baron might lay claim to the fruits of his vassals’ labor. This, of course, is a complete rejection of the right of private property; what the citizen may retain from his earnings is a concession, revocable at will. The citizen thus becomes a subject. For Constitutional support, this theory of government takes recourse in the ambiguous “general welfare” clause.

The “general welfare” clause meant different things to different members of the Constitutional Convention; according to Madison it was the subject of much bitter debate. But of one thing we can be sure, and that is that it meant nothing like the New Deal interpretation to any of them. It could not have justified in their minds the investment of tax-money in government ventures competing with private industry, or the regulating and restricting of enterprise even to the extent of stifling it; and a system of doles was simply unthinkable. For, the economic thinking of the day was singularly laissez faire, and the idea of government intervention in one’s way of making a living was abhorrent to these recent revolutionists. In the context of their economic philosophy the general welfare was promoted only by production. The wealth of the nation is the sum total of the wealth of the citizens; the government might extract from it but could not contribute anything to it. To them the only thing the government could do to promote the general welfare, in the economic field, was to provide protection “for the diversity in the faculties of men, from which the rights of property originate.” Having done that it should get out of the way.

The Business of Politics

If, as Charles A. Beard has so clearly shown, the Constitution was an “economic instrument,” if “every fundamental appeal in it is to some material and substantial interest,” does that invalidate its basic theory of government? To be sure, the Founding Fathers made concessions to the slave trade, the landed gentry, the money speculators and the protection-seeking industrialists. In so doing they simply accepted what the mores sanctioned. The business of the politician is not to improve upon the intelligence and conscience of his times, but rather to take what he finds and write and enforce the rules of the game accordingly. Whenever he tries to make men better than they are, or their understanding permits them to be, he is assuming a capacity he does not have and is courting trouble. The Founding Fathers made concessions to pressure-groups, to be sure; but when did politicians do otherwise? Can they do anything else? Even where the politician presumably abolishes all special privilege, as in totalitarian regimes, he simply makes of himself the sole beneficiary of all special privilege. The moralist’s passion for a society free of special privilege will be satisfied, if it ever is, by some mutation in the nature or intelligence of man; it will never come by way of politics.

It is beside the point to criticize the Founding Fathers for failure to distinguish between property got by one’s own labor and property got by privilege. The distinction was quite unknown then and, except in the ivory tower of moral philosophy, is quite unknown now. The Constitution concerned itself with the principle of private property, not with a definition of it, and our present concern should be with that principle. Is the individual in better case under a regime that guarantees security of possession and enjoyment, or does he prosper better under a regime that confiscates all production and doles it out according to a formula of its own design? Putting aside the iniquities that grow up under the institution of private property, or the perversion of it, is it not, nevertheless, more conducive to the general welfare than State Capitalism? A States’ Rights movement must face that question squarely.

Origin of Private Property

The answer to that question must be sought in first principles. Why does a man produce? Obviously, to satisfy his desires, and desires are personal, not collective. If he is deprived of the fruits of his labors, by marauders or the government, the profit in laboring is gone, and if the defalcations persist he loses interest in production. The need of living impels him to produce what he can consume immediately, but the uncertainty of possession dissuades him from accumulating; he does not save, he does not put by any capital. Under compulsion, as in slavery or a totalitarian regime, he will exert himself to produce more than he consumes only because of the desire to avoid pain, but his output will be in proportion to the constancy of surveillance and the certainty of punishment. The slave is a poor producer simply because he has no interest in production.

On the other hand, if possession and enjoyment is secure, the urge to produce knows no bounds. For the desires of man are without limit. His first need is food, but with a plenitude of that commodity on hand, or easily obtainable, he conjures up from his imagination a desire for tablecloth, napkin, and, at long last, music with his meals. The humble hut that was the pioneer’s castle is replaced with a mansion ablaze with electric light and equipped with hot-and-cold running water – only because he has been able, under private property, to accumulate a superfluity of wealth. The progress of civilization, the advancement in the sciences and arts, is in proportion to the degree of private property permitted in the going modus vivendi, and retrogression follows from the discouragement of production where confiscation is the general practice. A society of thieves cannot prosper.

The principle of private property, then, stems from the composition of the human being. And the general welfare, or the aggregate of production, is promoted only by the certainty of possession and enjoyment. That is the underlying thought of the laissez faire philosophy which, at the time the Constitution was framed, was accepted as axiomatic.

It was, indeed, a mass attack on private property that spurred the Founding Fathers in their work and furnished them with ammunition in their fight for ratification. In Massachusetts, a mob of farmers, burdened with mortgages and taxation, had attempted to force the state government to issue fiat money with which they could rid themselves of their obligations. Whether or not their grievances were justifiable, their action was a threat to the principle of private property, to which even these farmers held; they would have been in the forefront of a fight to retain possession of their holdings. However, the danger of mob action put the Fathers on their guard; they wrote into the Constitution provisions which, they expected, would prevent a majority, having got hold of the reins of government, from executing a policy of confiscation. The system of checks and balances was designed as a bulwark of private property.

States’ Rights and Private Property

Under these restrictions, which tended to keep the federal government weak and off-balance, the country did well for a century and a half. Private property was fairly safe and the wealth of the nation multiplied; the general welfare improved. But the spirit of spoliation grew apace, ever encouraged and exploited by self-seeking politicians. By means of amendments, interpretations and political subterfuge, the checks and balances were finally eased out of the Constitution. The “mob” so feared by Madison and Hamilton did in our time get control of political power and proceeded to use it as predicted; finding justification in a perversion of the “general welfare” clause, political gangsterism has put the government machinery to purposes other than the protection of “the diversity in the faculties of men, from which the rights of property originate.” Private property is no longer a tenet of the American creed.

Because the human being is ever intent on improving his circumstances, striving always despite handicaps and hindrances, the effect on the general welfare from the disregard of private property is slow in showing itself. It will do so in due time. Already labor is looked upon as a useless occupation when doles are available, and investment in enterprise of a long-term nature is regarded as folly. That the American standard of living must decline, that our civilization must sink to a lower and lower level, is a certainty to which the history of intervention testifies. Politics may deny private property but it cannot prevent the consequences of its action.

The issue is clear. Is it possible to stem the tide by a strengthening of our state governments? Can our state governments provide some protection for private property, now denied by the federal government? As a patriotic gesture, and in the interest of future generations, the effort should be made. A States’ Rights movement dedicated to that effort could well call upon the shades of the Founding Fathers for support; they favored a federal government because they saw in it a protection for private property; now that the federal government has become an instrument of spoliation, would not the Founding Fathers join up with a States’ Rights movement so dedicated? Even Hamilton should be a States’ Righter these days.

Frank Chodorov (1887-1966), one of the great libertarians of the Old Right, was the founder of the Intercollegiate Society of Individualists and author of such books as The Income Tax: Root of All Evil. Here he is on “Taxation Is Robbery.” And here is Murray Rothbard’s obituary of Chodorov.

The following is excerpted from a speech given at a recent event sponsored by the King William Republican Committee

While I am an elected Republican, I want to try to address tonight’s subject from a bi-partisan position: as an American and a Virginian. I am also a constitutionalist and I believe in this great Union. My goal tonight is to help the residents of King William and surrounding counties, as an accountable elected official, educate and inform this community about those American doctrines of liberty and freedom rooted in Federalism and the nationwide efforts working to send a message to those who wish to retreat from America’s first and founding principles.

We are all familiar with the famous yellow Gasden Flag with the words DON’T TREAD ON ME. This flag in many generations has represented a patriotic anxiety about the direction of government. We are seeing more pop up every day. But we may not all know that The Gadsden flag is a historical American flag with a yellow field depicting a rattlesnake coiled and ready to strike. In 1775, the flag was designed by and is named after American general and statesman Christopher Gadsden.

Similarly, many Americans are uninformed of other noteworthy or seminal events which fashioned together our great nation from several and similarly great states.

An understanding, much less a working knowledge of the principle of Federalism, also interpreted as State Sovereignty under the 10th Amendment, eludes our general population as well as those who are elected to seats of government and political authority. Over the past 8 months and some could argue over the past year or even twenty years, the American people witnessed and unfortunately condoned an enormous consolidation of power and authority in the federal government.

This amassing of power was done in the name of national defense or economic security. Remember that Ben Franklin said “Those Who Sacrifice Liberty For Security Deserve Neither.”

But I believe that there is a movement which will save us from a 21st tyranny. Let me briefly review just the recent actions of the current Administration:

• President and Congress passed $787 billion stimulus plan.
• An Air Force One New York City Flyover Photo Op Cost Over $328,000.
• The Obama Administration is accruing recording breaking debt. May raised its deficit estimate for the year to $1.84 trillion
• The Budget Will Spend $3.4 Trillion Next Year.
• Estimates Place Cost Of President’s Health Care Plan At Over $1 Trillion Over The Next Decade with further deficit spending.
• A White House Official Said Congress’s Energy Tax Could Raise Two Or Three Times More Than The Original $646 Billion; Cap And Trade Could wind up being a $1.3 To $1.9 Trillion Energy Tax.

This amassing of debt will be visited on all of us and lead to even greater dependence on – and control in Washington without regard to how states wish to manage themselves. The “Stringy legs” concept employed frequently by Congress shows a disdain for how states and their people hope to self-determine in a free market.

But in many ways we get what we have asked for or at least let happen. A people’s apathy and the government’s self-indulgence have combined to eat away at the concepts expressed in the Tenth Amendment laid out by the Founders. Economist Walter Williams wrote that

The Founders petitioned and pleaded with King George to get his boot off  their throats. He ignored their petition and rightfully they declared a unilateral declaration of independence and went to war.

Today it’s the same story but it’s Congressional usurpations against the rights of the  people and the states that make King George’s actions look like child’s  play. Our constitutional ignorance, coupled with the fact that we’ve  become a nation of wimps, sissies and supplicants, has made us easy prey for Washington’s tyrannical forces. But that might be changing. There is a long overdue re-emergence of American’s characteristic spirit of rebellion.

This type of patriotic spirit begins with a desire to learn more about the origins of our republic. People are beginning to understand that much like the Second Amendment is designed to protect the citizen from the encroachments of the federal government, the Tenth Amendment stands in the gap for states (and their citizens) by saying 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.

Joseph Story, a Supreme Court Justice and a son of a member of the Sons of Liberty, in his Commentaries on the Constitution, 1833, said “… the state governments are, by the very theory of the constitution, essential constituent parts of the general government. They can exist without the latter, but the latter cannot exist without them.”

In Virginia’s American Revolution:  From Dominion to Republic, 1776-1840, the author‘s primary purpose traces Federalism from the mid-1760s inception of disputation between Virginia and the Mother Country down through the death of the last Virginia Founding Fathers in the late 1830s. He asserts that Virginia ratified the US Constitution under the express understanding that the powers of Congress would extend only to those that were, as Governor Edmund Randolph explained in the 1788 Richmond Ratification Convention, “expressly delegated.”

This idea of Virginia as primary and the central government (first the British, then the Continental Congress, then the Confederation, and finally the Federal Government) as secondary underlay the Revolution in Virginia and are reflected in the Federalist Farmer essays of the Anti Federalist papers attributed to Richard Henry Lee. Echoes of our current trend to serfdom – Federal Farmer, Antifederalist Letter, October 10, 1787

Besides, to lay and collect internal taxes in this extensive country must require a great number of congressional ordinances, immediately operation upon the body of the people; these must continually interfere with the state laws and thereby produce disorder and general dissatisfaction till the one system of laws or the other, operating upon the same subjects, shall be abolished.

Even the most ardent proponents of a federal government at that time, those who penned The Federalist Papers, advocated for the preservation of state sovereignty as necessary to the success of the nation.

“But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”
–Alexander Hamilton, Federalist No. 32

“The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.”
–James Madison, Federalist No. 45

Case law later expounded upon this fundamental principle of Federalism with respect to state sovereignty. Printz v. United States held that the federal system limits the ability of the federal government to use state governments as an instrument of the national government. But this traditional notion of federalism has devolved into “cooperative federalism,” where Congress creates new state programs by affixing certain conditions to the receipt of funding.

These acts may become so intolerable that long-term structural sustainability is in real question, and the ultimate danger is the erosion of the principles of federalism whereby Virginia and her sister states become, effectively, wards of the federal super state.

Based on this growing concern that Virginia may lose its priority role in the structures of our American republic, I introduced House Resolution 61 in the 2009 session. Resolutions honoring the 10th amendment stand in the tradition of Richard Bland, Thomas Jefferson, Edmund Randolph, Patrick Henry, Henry Lee, James Madison, and indeed virtually every other significant Virginia Revolutionary and/or Founding Father.

Its precepts may even be far older even than the Tenth Amendment, which according to scholars only made explicit that principle where Virginians were told what was already implicit in the US Constitution when they agreed to ratify it 221 years ago.

Over the past year, states around the country passed resolutions claiming sovereignty under the 10th Amendment and resolving to serve notice and to demand that the federal government cease and desist mandates that are beyond the scope of its constitutionally delegated powers. This movement in over 35 states demonstrates an imbalance and growing concern that the federal government is increasing its dominance over state policy affairs. Visit: legis.virginia.gov to read HR 61 which after several “whereas” clauses reads:

RESOLVES by the House of Delegates, That the Congress of the United States be urged to honor state sovereignty under the Tenth Amendment of the Constitution of the United States.  The Commonwealth of Virginia hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.  The Commonwealth by this resolution serves notice to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.  Further, the Commonwealth urges that all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding shall be prohibited or repealed.

Some may discount this act as merely political or posturing — that a resolution is just words. Just words… Well to quote our President during last year’s elections he said  “Don’t tell me words don’t matter. I have a dream’ — just words… ‘We have nothing to fear but fear itself’ – just words. We have nothing to fear but fear itself. Just words. Just speeches.” I would add just these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness

Our community and communities like ours around the state and nation must inspire others and it is our hope that with HR 61 these words will have a profound impact. In the words found on our Liberty Bell we must “Proclaim liberty throughout the land unto all the inhabitants thereof.”

I encourage you to visit my website at www.chrispeace.com and stay in touch with me and this committee to help me and my colleagues show support for the legislation in committee.   May god bless you and the USA

Delegate Christopher K. Peace represents the Virginia House of Delegates’ 97th District and serves on the prominent Courts of Justice, Health Welfare and Institutions, Science and Technology, and Finance Committees. The district spans parts of Hanover, Caroline, King William, King and Queen, Henrico, Spotsylvania Counties and all of New Kent County