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.

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.

If the federal government were trying to do something within a state that was unconstitutional, the state government could say – you have no jurisdiction to do something illegal within our state.

Nullification has a long history in the American tradition, and as Napolitano points out, it was used in Massachusetts to resist the abhorrent federal fugitive slave act in the 19th century.

There’s a strong nullification movement growing in the states today.

Learn more about it here:
http://www.tenthamendmentcenter.com/the-10th-amendment-movement/

The following article is from the May 1950 issue of analysis, vol. VI, no. 7, and was reprinted on LewRockwell.com

It is never too late to put up a fight for freedom. True, the prospect for such a venture at this time seems bleak indeed, what with the prevailing madness to push more power upon the political overseer so that he might the better regulate our lives. Recruits would be scarce. From the rank and file, those who under all circumstances are determined to be harnessed, little can be expected; they are too preoccupied with mere existence. And those who seem to have the necessary ingredients – that is, those who have by their own initiative pushed themselves above the general level – are equally fervent for a regulated and subsidized existence under an omnipotent State. Subvention has become everybody’s business.

The despair of those who still put a value on freedom is understandable. Perhaps, as they say, it is best to let the country have its fill of socialism – or fascism or communism or any other pup from the litter of absolutism – and be done with a quixotic struggle. After a century or two of that kind of existence, when human dignity shall have scraped bottom, a Moses will emerge from the bulrushes and gain a respectable following. By that time, they point out, the State shall have become emaciated from malnutrition, slaves being poor providers, and a handful of resolute men can push it over. It was ever thus. Every civilization we know of arose and flourished in the sunshine of freedom; political institutions attached themselves even at the beginning, but remained quiescent until an abundance of economic goods stimulated cupidity; then followed a period of increasing political predation until at long last the civilization disintegrated and became an historical or archeological curio. After a while, freedom germinates a new civilization. That is the inevitable cycle, and we can do nothing, they say, to prevent or retard it.

Maybe so; maybe our civilization is also doomed by the ineluctable forces of history; maybe it is in the decline right now. Nevertheless, men do what they are impelled by an inner urge to do, not what history dictates. The stars in the heavens tend to their eternal business while we transitory mortals travel within our own specific orbits. It was no historical imperative that directed the pens of those who signed the Declaration of Independence; it was the integrity of the signers. There were many at the time – the Tories – who deemed the venture foolhardy and undesirable, and they could have argued the historical uselessness of all revolutions. Nevertheless, the rebels (none of whom were driven to it by economic necessity) put their signatures to what at that time seemed to be their own death warrant. Why? For lack of better answer, let us say they were made of a particular kind of stuff and could not do otherwise.

Looking to history for causation, we find that man’s constantly recurring excursions in search of freedom are identified by their leadership. The logical inference is that when men of that stripe appear on the scene the cause of freedom is not neglected. If, for instance, those who now prate about “free enterprise” were willing to risk bankruptcy for it, as the men of the Declaration were willing to risk their necks for independence, the present drive for the collectivization of capital would not have such easy going. Assuming that they are fully aware of the implications in the phrase they espouse, and are sincere in their protestations, the fact that they are unwilling to suffer mortification of the flesh disqualifies them from leadership, and “free enterprise” remains merely a mouthing.

The present low estate of freedom in this country must be laid to lack of leadership. Whether or not leadership could have averted, or can still stop, the socialistic trend, may be open to question; that a glorious fight for freedom might yet enliven the American scene is not. And, if we can trust the historic pattern, the odds are that nature will give us, in her own good time and at her pleasure, the kind of men that can and will make the good fight.

A Block to Power

The American terrain, so to speak, is fortuitously favorable for the forces of freedom. Not only is there a strong supporting tradition, but the Constitutional form of government which grew out of this tradition is still in existence, though somewhat distorted, and could provide the favorable battle line. It must be remembered that from the very beginning of the country political power has been in bad repute; even though it is well on its way to religious status, political power in America still lacks the adulation that it receives from peoples long inured to submissiveness.

In the beginning, the Founding Fathers recognized the need of government in organized society, but were ever jealous of its powers. They knew that political authority is constitutionally incapable of moral inhibitions. It is force, and, like physical force, can be held in check only by an equal and contrary force. For that reason, when they came to organize a government to replace the one they had thrown out, they put into its pattern provision for a series of counterbalancing forces. Not only did they aim to keep the central government weak by a division of authority, but also pitted against it the governments of the component states. Freedom was to be preserved by keeping political power decentralized and off balance. The scheme worked well for a time, but no Constitution can of itself constrain the inherent tendency of power to expand; only constant surveillance and opposition can do that, and since the primary concern of man is the business of living, political power makes its way unnoticed. The present condition of freedom in this country is due entirely to the breakdown of the strictures laid upon the government by the Founding Fathers, most particularly the one providing for the dual form; the powers of the central government have been enhanced at the expense of the state governments. Hence, any campaign to restore freedom in this country must begin with an effort to reverse that process.

The virtue in the juxtaposition of local and federal governments is demonstrated in reverse by the careers of tyrannies. In no country where a totalitarian regime established itself did it have to contend with the dual system that obtains in this country. When Hitler came along there was still some semblance of the local autonomy that Bismarck had broken through, but it was too attenuated to stay the path of the conqueror; he had to meet nothing like our sovereign state governments, legally entrenched and supported by a tradition of voluntary association. Mussolini’s march on Rome was likewise facilitated by the structural consolidation begun by Cavour, and the Czars had long ago effected all the centralization that Lenin needed. Again, for centuries the seat of ultimate authority had been London when the socialists took over: home government in England is merely an administrative agency.

When the trend toward centralization in this country took definite shape under the New Deal, its leaders ran head on into the impediment of divided authority. They set out to remove it. They went so far as to draw up a blueprint for a new political setup, one that would circumvent, if not obliterate, the troublesome state lines. In 1940 the National Resources Committee, in a report called Regional Factors in National Planning, proposed to divide the country into a dozen regional areas, as a basis for national planning and the coordination of federal administrative services. It was a proposal so violative of the spirit of the Constitution, if not the letter, that the committee made haste to give assurance; the regional organization, they said, “should not be considered as a new form of sovereignty, even in embryo.” It would have been foolhardy to say anything else, especially since the consolidation of the states into a national unit requires, under Constitutional procedure, the joint action of Congress and the state legislatures. Nevertheless, the committee insisted that the “division of Constitutional powers” handicapped any program of national design; the report left no doubt of the necessity of overcoming this division as a condition for the federal solution of “otherwise insolvable problems.” It was clearly a bid for a nationalized system; and in the propaganda of the day the prediction that the states are “finished” was uninhibited.

Thus, the proponents of planning, with its correlative of restrictions on individual initiative, are on record as to their strategic campaign. The separate states must be either wiped out or reduced to parish status. It is impossible to effect complete control over the individual of divided allegiance; he must have only one god. History is on their side; no political power ever achieved absolutism where the subjects were permitted to indulge more than one loyalty; the Caesars persecuted the Christians because, despite the homage they rendered Rome, they worshipped God.

Pending the organic consolidation of the states, the planners adopted a policy of conquest by purchase. Armed with the enormous revenues from the unlimited income tax, they have to all intents and purposes penetrated and almost obliterated state lines. All was done, is being done, in the name of “public welfare,” but the political effect of flood control, public housing projects, farm subsidies, federal control of banks, loans and subventions of all sorts, has been to win public support for the central government and to discredit home government. The loyalty as well as the integrity of the citizenry is purchased by gratuities derived from its own substance, while bribery and blackmail reduce the petty local politician to subservience. For a brief tenure of office the sovereignty of the states is bartered away; such areas of independent action as are left to them are those the federal government has not yet chosen to absorb, like patrolling the streets or real estate taxation. Washington has thus become the American Mecca and, if not stopped by vigorous and uncompromising opposition, will become its Moscow.

The Origin of States’ Rights

The forces of centralization, then, have selected the “front,” the line of battle, and there is nothing for the opposition to do but to meet them at this line. The issue is again the matter of states’ rights, but this time vitalized with the issue of freedom. Specifically, it is the original American issue, before it became sullied with sectionalism and racialism; it is the problem that confronted the Founding Fathers.

The people of the recently liberated British colonies had had their fill of government from afar, of impersonal government, of government by decree. If they were going to have any government at all they wanted one they could keep their eyes on and, if need be, put their hands on. They were for Union, to be sure, for by such cooperation they had rid themselves of a foreign tyrant, but they recognized that under the Articles of Confederation the Union was imperfect; it was to correct these imperfections that they sent delegates to the Philadelphia Convention, not to draw up a new Constitution. They accepted the Constitution rather grudgingly, even though it left to the several states almost as much autonomy as they had had; in internal matters the only material limitations on their authority was in imposing interstate tariffs and in the matter of issuing currency; in the important fiscal powers, with the exception of import tariffs, the states gave up nothing, merely allowing the federal government to share with them the right to levy excise taxes. Direct taxation, on land and on incomes, remained the exclusive prerogative of the states. And, while the Constitution did not touch on the subject, the opinion prevailed that withdrawal from the Union was permissible, an opinion that found expression first in the 1815 Hartford convention called for the purpose of exploring the possibility of secession of the New England states. The first loyalty of the early American was to his local government, and for good reason.

There is no vice in the government of a large nation that cannot be duplicated in the government of a small nation or of any political sub-division. Even the Greek city-states had their tyrants. Our state and city establishments have proven themselves susceptible to the ubiquitous malady of corruption, and the rights of citizens have not been immune to the power-complex of county sheriffs. If we were divided into forty-eight nations, each independent of the other, the case for freedom would hardly be better; it could be worse. But, where power is diffused, as was contemplated in the original Union, and the citizen can play one authority against another, his inherent rights are less likely to be infringed upon. That political fact was taken for granted, or rather sensed, by those who drafted, ratified or opposed the Constitution; the arguments in the Convention, the pleading for ratification in the Federalist and the warnings of anti-ratificationist pamphleteers all bear evidence to a general distrust of centralized power. Except for a handful who urged the monarchial form of government, everybody was for local authority at least equal in scope to that of the new national authority.

Freedom Is a Fight

Freedom is a personal experience; a free society is an association of free individuals, nothing else. Freedom consists simply in the absence of external restraints on thought and behavior. Yet, because the individual, in his efforts to improve upon his circumstances, not infrequently transgresses the equal freedom of his fellow man, restraint becomes a necessary condition of social living; it is the means of maintaining an equilibrium, or justice. But, the administrators of justice are themselves men, possessed of the frail ties common to all men, and in the exercise of the powers of restraint vested in them are not immune from temptation. Power over men is itself a satisfaction, besides providing opportunity to better one’s circumstances with a minimum of exertion. Hence, the lust for power increases with its enjoyment and restraint is added to restraint. The government instituted to prevent men from transgressing one another’s equal rights thus tends to become a transgressor of the rights of all. The injustice is far more oppressive than any one man can do unto another, and the interests of freedom can be served only by restraint of government.

The fight is unending. Man being what he is, government is necessary; but government being subject to its own perversions, must be kept in line by constant surveillance and opposition. At times, as during the present, political power gets the upper hand and seems well on the way to reduce the individual to animal status; but because of man’s innate urge for self-expression, which is the essence of freedom, the struggle flares up again and again. Between man and political power there is never peace, only a temporary truce.

On this basic premise a states’ rights movement can build an appealing program. If it promises freedom, with decentralization as a means only, it will speak to the hearts of men. The romantic appeal of government by neighbors, of non-interference from outsiders, of the preservation of cherished local customs, of the pride of belonging to one’s home environment – all this will have its contributory effect; but far more fetching will be the expectation of greater freedom, economic as well as political. That is the goal men have always striven for.

And the promise must be implemented with specific objectives; ideals alone will not do. Its platform must offer relief from all the interventions in human affairs that the federal government, under the guise of humanitarianism, has possessed itself of and without compromise. Going to the tap-root of its present overweaning power, repeal of the Sixteenth Amendment should be the keystone of a states’ rights program. The power to tax the earnings of men is a denial of private property, the one right without which man is reduced to subject-status. Our entire Bill of Rights became a dead letter when the right to keep and enjoy the product of one’s labor was taken from us; for human dignity cannot be divorced from the sense of ownership. Once the political establishment acquired a proper lien on everything produced, it had the means to undertake ventures for which it has no competence in theory or practice, ventures which are properly in the domain of individual initiative. It acquired the means of becoming the Monopoly State Capitalist. Nor is there any power left to prevent its achievement of that goal. For its enormous economic resources enable it to maintain the machinery for the repression of opposition.

A states’ rights movement that did not encompass repeal of the Sixteenth Amendment would be meaningless. For the autonomy of the state government was inevitably doomed when the incomes of the people became the incidence of federal taxation. In the first place, loyalty of the citizen, who before that had been primarily a citizen of his state, and only secondarily of the nation, was transferred to the authority that takes his wealth; he became a subject of the government controlling his economy. And then, with these funds at its disposal, the federal government was in position to bring the local governments to heel, mainly through the process of bribery. It is now clear that when the states ratified this amendment they signed the death warrant of their own sovereignty.

Secession and Nullification

With that plank as a beginning, the platform should tear into every device of centralization, always exposing it as a threat to freedom, regardless of the promise with which it is eased into our lives. Let us take the Federal Reserve System as an example. This was in the beginning a quasi-public organization, or a private organization under the aegis of the government; its function was to move money from banks with an excess of it to banks that had a need of it for sound purposes. However, through its monopoly privilege of making money and issuing bonds, the government has reduced this organization to subservience; it is now an arm of the government, willy-nilly. As a consequence, the local bank, which once served the commercial life of its community, is an obedient secretary of the U. S. Treasury. Since sixty percent of its assets are in the hands of the government, the bank’s interest in the local merchant and industrialist is only forty percent. The banker is hardly the servicer of the society of which he was a part, but has been fitted into the “foreign” bureaucracy. Not only is his freedom being whittled away, but the freedom of the citizen he once served is being limited by the rules and regulations of the super-banker, the government. A states’ rights movement must not only point out how the liquidation of private banking came about, to the discouragement of private initiative, but should advocate a system of state-chartered banks as free as possible from federal entanglement.

But, whether it is against the banking system, or flood control boards with authority superseding that of the states, or the multitudinous lending and spending agencies that everywhere demote civic management to secondary importance, the attacks should be made with the purpose of laying upon the federal government the odium of a “foreign” government. One could make a strong case for the proposition that the disabilities put upon the colonials by George III compare favorably with the disabilities we suffer under the Washington bureaucracy; the indictment of that monarch in the Declaration of Independence needs little change to fit it to the Trojan horse named “Welfare State.” It must be the business of a states’ rights movement to point out that freedom can be bartered away as well as taken away. The result is the same.

Important as is this ideological program, the movement must attach to itself an economic interest. This is essential. In 1815, the movement got up a head of steam only because “Mr. Madison’s War” was playing havoc with the merchants and individualists of New England, and it was the economic difficulties of the South that germinated interest in nullification and secession. No political movement travels on ideals alone; it must be fueled by economics. Through the intelligent use of the fiscal powers of the states, it is possible to induce capital to engage in intra-state ventures; the current attacks of big government on “big business” should favor such decentralization, and the graduated income tax will in time make the per-dollar return from a small investment more attractive than possible earnings from a large undertaking. Farming freed from local taxation should prove more profitable, and infinitely more dignified, than subsidized and regulated farming. The exemption of buildings from local levies would long ago have overcome the housing shortage, upon which the bureaucracy has waxed fat, and would have started a wage boom of proportions. In numerous ways, the states individually or through voluntary agreements could go in for encouraging local industry, to the disparagement of federal methods.

In short, a states’ rights movement should take the form of the secession from Washington, not from the Union, and nullification of the directives issuing from bureaucracies. It would be revolutionary in character but legal in form, because the autonomy of the state governments is inherent in the Constitution. Besides, there is no way for the federal government to indict the state governments, and revolution is always legal when it is successful.

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.”

The federal government today can wage wars without the consent of our congressional representatives, overthrow foreign governments, tax nearly half of national income, abolish civil liberty in the name of “homeland security” and “the war on drugs,” legalize and endorse infanticide (”partial-birth abortion”), regulate nearly every aspect of our existence, and there’s little or nothing we can do about it. “Write your congressman” is the refrain of the slave to the state who doesn’t even realize he’s a slave (thanks to decades of government school brainwashing).

But Americans were not always slaves to federal tyranny. Perhaps the best illustration of this is how Americans once utilized the Jeffersonian, states’ rights traditions of nullification and interposition to assist President Andrew Jackson in his campaign to veto the re-chartering of the Second Bank of the United States (BUS) in 1832. Jackson essentially ended central banking in America until it was revived thirty years later by the Lincoln administration. The story is told in James J. Kilpatrick’s wonderful 1957 book, The Sovereign States: Notes of a Citizen of Virginia.

The Bank was notorious for fraud, mismanagement, corruption, and attempts to engineer a “political business cycle.” Prior to 1861, the American people were still sovereign over their government. They exercised that sovereignty in the way the founders intended: through state political conventions or legislatures. The federal government was their agent.

Consequently, as early as 1816, Indiana and Illinois amended their state constitutions to prohibit the BUS from establishing branches within their jurisdictions. North Carolina, Georgia, and Maryland imposed heavy taxes on BUS branches within their states in attempts to tax them out of existence (A tax that even libertarians could love!). Knowing that such taxes could destroy the central bank, the federal government brought suit in Maryland (McCulloch vs. Maryland), confident that John Marshall, chief justice of the Supreme Court and a proponent of the BUS, would rule in its favor. He did, coining the famous phrase that “the power to tax involves the power to destroy” in his decision. He wasn’t expressing a fear that taxation could destroy private initiative and private enterprise, but that it could limit the federal government’s monetary monopoly.

Despite Marshall’s opinion that state taxes on the BUS were unconstitutional, numerous states continued to harass the bank. Until 1865, the Supreme Court’s opinion was just the Supreme Court’s opinion. The citizens of the states reserved the right to offer their own opinions on constitutionality, which they often considered to be every bit as valid as the Court’s. The same was true of certain presidents: Andrew Jackson essentially said “thank you for your opinion” and then thumbed his nose at the Court when it ruled that the BUS was constitutional.

After Marshall’s 1819 opinion, Ohio enacted a $50,000 per year tax on the BUS. The Bank refused to pay, so the Ohio state auditor ordered a deputy, one John L. Harper, to collect the tax. As Kilpatrick (p. 151) explains it:

[O]n the morning of September 17, Harper made one last request for voluntary payment. When this was denied, he leaped over the counter, strode into the bank vaults, and helped himself to $100,000 in paper and specie. He then turned this over to a deputy . . . stuffing this considerable hoard into a small trunk, with which the party thoughtfully had come equipped . . .

This would be the equivalent of today’s governor of Ohio ordering state troopers to enter the Cleveland Fed and strip its vaults of over a million dollars. The BUS sued Ohio, relying on Marshall’s opinion. The Ohio legislature considered such a lawsuit to be a threat to citizen sovereignty and a dangerous precedent to all Americans, not just Ohioans. It issued a statement saying, “To acquiesce in such an encroachment upon the privileges and authority of the States, without an effort to defend them, would be an act of treachery to the State itself, and to all the States that compose the American Union (emphasis added).”

The legislature stated that it was aware of the theory that the Supreme Court is to be the interpreter of the Constitution, but declared that “to this doctrine . . . they can never give their assent” (Kilpatrick, p. 152). The legislature quoted Jefferson’s Kentucky Resolve of 1798, which said that “as in all other cases of compact among parties having no common judge,” each party “has an equal right to interpret the Constitution for themselves, where their sovereign rights are involved . . .”

Marshall was wrong, the Ohioans said, because his opinion unconstitutionally encroached upon the sovereignty of the states. Therefore, they were under no obligation to acquiesce in his ruling.

The Ohio legislature promised to return the $100,000 if the BUS left the state. If not, it proposed a law forbidding “the keepers of our jails” from imprisoning any person “committed at the suit of the Bank of the United States”; prohibiting Ohio courts from “taking acknowledgements of conveyance where the Bank is a party”; and forbidding “our courts, justices of peace, judges and grand juries from taking any cognizance of any wrong alleged to have been committed upon any species of property owned by the Bank.” Invoking Jefferson’s “Doctrine of ’98,” the Ohioans concluded by “denouncing the Federal courts for violation of the Constitution” (p. 154).

The BUS persisted in its lawsuit, and eventually had the state treasurer arrested and imprisoned. While in prison, the keys to the state vaults were physically taken from him and the feds took back the $100,000, apparently still in the same trunk.

This act infuriated the Ohioans even more, and they continued to harass the Bank, as did many other states. Kentucky and Connecticut adopted Ohio’s states’ rights stand toward the Bank in 1825. In 1829, South Carolina imposed a tax on stockholders of the Bank within the state. New York and New Hampshire enacted resolutions urging that the Bank not be re-chartered. As Kilpatrick concludes:

In the face of this unrelenting warfare, the bank could not survive. Withdrawal of the public deposits began in August of 1833, under Jackson’s order; and when Pennsylvania governor Wolf, who had been one of the bank’s staunchest supporters, denounced the institution in . . . March of 1834, public opinion was fatally influenced against the bank. The Pennsylvania Senate adopted fresh resolutions urging that the bank ought not to be re-chartered. The following month, the United States House of Representatives adopted the same view, and the bank’s days came to an end (p. 157).

Andrew Jackson is usually given credit for (temporarily) ending central banking in America in the nineteenth century. But he had help. It was this expression of citizen sovereignty, in the spirit of the Jeffersonian states’ rights tradition, that made Jackson’s veto of the bank politically possible.

States’ rights as a check on the tyrannical proclivities of the central government ended in 1865, of course. As Forrest McDonald noted in States’ Rights and the Union (p. 224), after Lincoln’s war the Supreme Court “became the sole and final arbiter of constitutional controversies. No longer could a Jefferson arise to insist that the other branches of the federal government had coequal authority to determine constitutionality. No more could a Calhoun arise to defend a doctrine of interposition or nullification.”

The imperious Woodrow Wilson would celebrate this fact in his 1908 book, Constitutional Government in the United States, where he wrote (p. 178) that “the War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers.”

In A View of the Constitution, published a century earlier, the Jeffersonian legal scholar St. George Tucker cited this phenomenon as the very definition of tyranny. If the federal government ever became the final judge of the limits of its own powers, Tucker warned, then constitutional liberty would become an empty phrase. The federal government would inevitably conclude that there are, in fact, no limits to its power.

Thomas J. DiLorenzo is professor of economics at Loyola College in Maryland and the author of The Real Lincoln; Lincoln Unmasked: What You’re Not Supposed To Know about Dishonest Abe and How Capitalism Saved America. His latest book is Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution – And What It Means for America Today.

Note: This article was originally published on May 9, 2003

Copyright © 2003 LewRockwell.com  Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Early in my development as a human being, there was the pledge of allegiance. There was the National Anthem and of course, the Stars and Stripes.

I grew up in Southern California and now that I have had a chance to deprogram myself (which has taken years) I have some questions- for one, where was the pledge to the California Republic? Where was my class on the California Constitution…or even just a mere mention of it in one of my other government classes at my government school?

The reality is that my generation was indoctrinated with a very subtle, but dangerous notion- that the Federal Government IS the United States.

There was no mention in my childhood of state sovereignty…not even the briefest mention of the 10th Amendment. Oh sure, I knew about something called the ‘Bill of Rights’ but all that I can remember being taught was that it was separate from the Constitution, with a sneaky inference that the first 10 amendments were somehow a lesser part of the framers’ vision.

One flag. One nation. One ruling body, Washington DC.

This is the situation we all face today as Americans who value the philosophy of our founding fathers. Despite being an absolute desecration of the founder’s concept of ‘United States’, the ‘Omnipotent Centralized State’ has become zeitgeist through our words, our patriotic displays and our teachings.

It’s a steep hill to climb, but this effect must be reversed if we are to keep our republic. Deprogramming the masses and awakening once again a pride in one’s state house is more cultural than legal, more art than science but it must be done. If the territory gained by the Tenth Movement is to stand we will have to find a way to ensure that future generations honor TWO flags in their classrooms, maybe even at ballgames- The Red White and Blue AND the flag of their state.

Editor’s Note: Samuel Adams, American Patriot and Revolutionary Leader, was born on September 27, 1722. In celebration of his birth, we present the following letter, sent by him to Elbridge Gerry, on August 22, 1789.

I wrote to you hastily two days ago, and as hastily ventured an Opinion concerning the Right of Congress to control a Light-house erected on Land belonging to this sovereign and independent State for its own Use and at its own Expense.

I say sovereign and independent, because I think the State retains all the Rights of Sovereignty which it has not expressly parted with to the Congress of the United States–a federal Power instituted solely for the Support of the federal Union.

The Sovereignty of the State extends over every part of its Territory. The federal Constitution expresses the same Idea in Sec. 8, Art. 1.

A Power is therein given to Congress “to exercise like Authority,” that is to exercise exclusive Legislation in all Cases whatsoever, “over all places purchased by the Consent of the Legislature in which the same shall be, for the Erection of Forts, Magazines, and other needful Buildings,” among which Light-houses may be included.

Is it not the plain Conclusion from this Clause in the Compact, that Congress have not the Right to exercise exclusive Legislation in all Cases whatsoever, nor even to purchase or control any part of the Territory within a State for the Erection of needful Buildings unless it has the Consent of its Legislature.

If there are any such Buildings already erected, which operate to the General Welfare of the U S, and Congress by Virtue of the Power vested in them have taken from a State for the general Use, the necessary Means of supporting such Buildings it appears to be reasonable & just that the U S should maintain them; but I think that it follows not from hence, that Congress have a right to exercise any Authority over those buildings even to make Appointments of officers for the immediate Care of them or furnishing them with necessary Supplies. I wish to have your Opinion if you can find Leisure.

I hope Congress, before they adjourn, will take into very serious Consideration the necessary Amendments of the Constitution. Those whom I call the best–the most judicious & disinterested Federalists, who wish for the perpetual Union, Liberty & Happiness of the States & their respective Citizens, many of them if not all are anxiously expecting them.

They wish to see a Line drawn as clearly as may be, between the federal Powers vested in Congress and the distinct Sovereignty of the several States upon which the private & personal Rights of the Citizens depend.

Without such Distinction there will be Danger of the Constitution issuing imperceptibly and gradually into a consolidated Government over all the States; which, although it may be wished for by some was reprobated in the Idea by the highest Advocates for the Constitution as it stood without Amendments.

I am fully persuaded that the population of the U S living in different Climates, of different Education and Manners, and possesed of different Habits & feelings under one consolidated Government can not long remain free, or indeed remain under any kind of Government but despotism.

You will not forget our old Friend Devens, and if you please mention him to Mr R H Lee.

Adieu my dear Friend and believe me to be sincerely yours,

P. S. The joint regards of Mrs A & myself to Mrs Gerry.

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

While the media of late tends to focus on the new crop of states resisting DC with legislation on firearms and health care, they almost always miss, or ignore, what I consider to be some of the greatest and most effective state resistance to federal power – marijuana activism.

According to our friends at NORML, there are now 13 states who are openly resisting federal laws on medical marijuana. And now my home state of California is on the verge of taking it to the next level – full legalization.

According to a report in the SF Chronicle yesterday:

Two prominent East Bay marijuana advocates got clearance from the state today to try to put a pot-legalization initiative on the November 2010 California ballot.

This isn’t your run-of-the-mill “medical marijuana” bill – that’s already legal in CA. If approved by voters, the bill would:

allow anyone over 21 to possess or grow marijuana for personal use. It would allow each local government to decide whether to tax and regulate marijuana sales.

Any honest person reading the Constitution through the intent and understanding of the founders would recognize that the federal government has no delegated power to be involved in the marijuana issue, in any way.

Keep in mind, though, that the federal courts (and the DEA), don’t really care what the Constitution has to say about it. They’ve interpreted it in their own way, and have made it quite clear that they don’t recognize state marijuana laws as “valid.”

But, as we say here in California, thanks for your opinion, DC, we’ve got our own.

Pennsylvania State Representative Sam Rohrer has introduced the “Firearms Freedom Act” (HB1988) for consideration in the state legislature.    The bill is “An Act prohibiting certain firearms, firearm accessories or ammunition from being subject to Federal law or Federal regulation.”

HB1988 currently has 48 additional co-sponsors, and according to FirearmsFreedomAct.com, is similar to bills recently enacted into law in both Montana and Tennessee.

While the bill seems to focus solely on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government.  It specifically states:

The regulation of intrastate commerce is vested in the states under the 9th and 10th Amendments to the Constitution of the United States, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition.

Rohrer, in a recent letter to Pennsylvania House Members, addressed the issue of the commerce clause:

Under the current, expansive interpretation of the Interstate Commerce Clause in Article I, Section 8 of the U.S. Constitution, it is permissible for the federal government to regulate the sale of goods that are manufactured and sold exclusively within a state’s borders. Effectively, the federal courts hold that if a product might possibly find its way into streams of interstate commerce, federal laws to regulate that product are appropriate. The product need not actually be sold between states.

In 1942, the U.S. Supreme Court ruled against a farmer who was fined by the federal government for growing too much wheat. Effectively, the argument in Wickard v. Filburn was that the wheat he grew and consumed himself would lead to decreased wheat sales in other states, so it fell under federal jurisdiction because of the interstate commerce clause.

As recently as 2005 (Gonzales v. Raich), the U.S. Supreme Court cited Wickard as standing for the proposition that “Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for interstate sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

According to the U.S. Supreme Court, wheat (in Wickard) and medical marijuana (in Raich) are completely indistinguishable from such products made and sold in interstate commerce, so federal regulation is appropriate.

Under my bill, the policy of this Commonwealth would be that firearms and firearm accessories manufactured and exclusively sold in the Commonwealth of Pennsylvania, carrying the brand “Made in Pennsylvania” (all clear indicators of intrastate commerce), would be subject only to state law.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation to nullify specific federal laws within their states.

A proposed State Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010, and up to 10 states may consider similar Amendment proposals next session.   And, thirteen states now have some form of medical marijuana laws in direct contravention to federal laws which state that the plant is illegal in all circumstances.

While some advocates and legal theorists concede that a 10th Amendment federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.

In the past 2 years, nearly two dozen state legislatures passed resolutions and laws refusing to implement the 2005 Real ID Act.   Because of this, and without congressional repeal, The Bush-era law is effectively null and void.

Some advocates of these efforts say it doesn’t matter whether or not the federal government agrees, or even if it threatens states over funding, as they did recently with Oklahoma.  Gary Marbut, author of the Montana Firearms Freedom Act, took this position in a recent interview with the Tenth Amendment Center:

“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills.  And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.“

Whether or not state legislators have the backbone to resist if federal officials strongly disagree remains to be seen.  But either way, as nullification efforts spread, it points to a growing state-level rebellion to the federal government.

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