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.

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.

Mentioned in this Show

Federalist #41

United States v Butler

Korematsu v. United States

More from Rob Natelson:

Are Campaign Finance Laws Constitutional?

Is ObamaCare Constitutional?

Claiming Almost Everything is “Commerce”

Before government can guarantee provision of a specific good or service to any one individual, thus creating a so-called “positive right,” it must first take by force the means of producing that very good or service from someone else.

Health care is no different. Whether by forcibly appropriating and redistributing the money to purchase care for those who lack it, or by arbitrarily devaluing the time and effort of those who provide it, once a government mandate supplants voluntary exchange, coercion must be used to exercise that “right” to health care.

But how can taking what belongs to another person (their money, time, or effort) through legislative force be a right?

Is that not the very essence of slavery?

The truth is that the only rights actually guaranteed to Americans by the Constitution are those that protect freedom of action.

They are “negative rights,” which do exactly the opposite of their positive counterparts. Rather than initiate and rely on the use of force to produce a specific reward or outcome, negative rights allow individuals to act or not act in the absence of coercion, so long as they do not hinder the freedom of others to do the same.

For instance, it is the right of people in this country to vocalize unpopular opinions, associate with unpopular people, practice unpopular religions, and even carry unpopular weapons. Thanks to our negative rights the government cannot, without due process, take the life, liberty, or property of any American.

But nowhere in the Constitution does it say that, in order to exercise their rights, each citizen must at birth be given a microphone, a bible, or a gun.

That was no accident. For more than two hundred years, the freedom and responsibility to determine one’s own future has been the foundation of America’s unparalleled success. But the critical role played by our negative rights has become less and less clearly understood over time.

Many of this country’s most celebrated leaders have manipulated that ignorance, redefining rights as unearned rewards for politically favored groups; payoffs thinly veiled in the pious rhetoric of social justice.

FDR himself was among the worst. The abject failure of the New Deal notwithstanding, FDR proposed to codify his authoritarian progressive agenda in a constitutional amendment, known as the “Economic Bill of Rights.”

It reads like a list that could just as easily have flowed from the pen of Karl Marx:

The right to a useful and remunerative job…

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition…

The right of every family to a decent home;

The right to adequate medical care…

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

Besides being, as any citizen of the former Soviet Union can attest, economically disastrous and utterly impossible to define or achieve, the biggest problem with FDR’s list was that it sought to make America into a nation of serfs.

The logic is inescapable. Once something has been deemed a right by those in government, the ability of every person who produces or consumes that good or service to engage in voluntary transactions with the fruit of their own labor is stolen. Their labor is then owned and administered by agents of the collective.

Again, I ask: Is that not the very essence of slavery?

There is no doubt that freedom entails risk, and America has not always lived up to the promise of her founding. But when certain people or groups pervert the notion of rights, harnessing the power of government to take by force what they desire but have not earned, then negative freedom becomes a positive tyranny.

Let us hope that more Americans, before it is too late, learn how to tell the difference.

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

From a speech before the US House of Representatives  September 7, 2006

Politicians throughout history have tried to solve every problem conceivable to man, always failing to recognize that many of the problems we face result from previous so-called political solutions. Government cannot be the answer to every human ill. Continuing to view more government as the solution to problems will only make matters worse.

Not too long ago, I spoke on this floor about why I believe Americans are so angry in spite of rosy government economic reports. The majority of Americans are angry, disgusted, and frustrated that so little is being done in Congress to solve their problems. The fact is a majority of American citizens expect the federal government to provide for every need, without considering whether government causes many economic problems in the first place. This certainly is an incentive for politicians to embrace the role of omnipotent problem solvers, since nobody asks first whether they, the politicians themselves, are at fault.

At home I’m frequently asked about my frustration with Congress, since so many reform proposals go unheeded. I jokingly reply, “No, I’m never frustrated, because I have such low expectations.” But the American people have higher expectations, and without forthcoming solutions, are beyond frustrated with their government.

If solutions to America’s problems won’t be found in the frequent clamor for more government, it’s still up to Congress to explain how our problems develop – and how solutions can be found in an atmosphere of liberty, private property, and a free market order. It’s up to us to demand radical change from our failed policy of foreign military interventionism. Robotic responses to the clichés of big government intervention in our lives are unbecoming to members who were elected to offer ideas and solutions. We must challenge the status quo of our economic and political system.

Many things have contributed to the mess we’re in. Bureaucratic management can never compete with the free market in solving problems. Central economic planning doesn’t work. Just look at the failed systems of the 20th century. Welfarism is an example of central economic planning. Paper money, money created out of thin air to accommodate welfarism and government deficits, is not only silly, it’s unconstitutional. No matter how hard the big spenders try to convince us otherwise, deficits do matter. But lowering the deficit through higher taxes won’t solve anything.

Nothing will change in Washington until it’s recognized that the ultimate driving force behind most politicians is obtaining and holding power. And money from special interests drives the political process. Money and power are important only because the government wields power not granted by the Constitution. A limited, constitutional government would not tempt special interests to buy the politicians who wield power. The whole process feeds on itself. Everyone is rewarded by ignoring constitutional restraints, while expanding and complicating the entire bureaucratic state.

Even when it’s recognized that we’re traveling down the wrong path, the lack of political courage and the desire for reelection results in ongoing support for the pork-barrel system that serves special interests. A safe middle ground, a don’t-rock-the-boat attitude, too often is rewarded in Washington, while meaningful solutions tend to offend those who are in charge of the gigantic PAC/lobbyist empire that calls the shots in Washington. Most members are rewarded by reelection for accommodating and knowing how to work the system.

Though there’s little difference between the two parties, the partisan fights are real. Instead of debates about philosophy, the partisan battles are about who will wield the gavels. True policy debates are rare; power struggles are real and ruthless. And yet we all know that power corrupts.

Both parties agree on monetary, fiscal, foreign and entitlement policies. Unfortunately, neither party has much concern for civil liberties. Both parties are split over trade, with mixed debates between outright protectionists and those who endorse government-managed trade agreements that masquerade as “free trade.” It’s virtually impossible to find anyone who supports hands-off free trade, defended by the moral right of all citizens to spend their money as they see fit, without being subject any special interest.

The big government nanny-state is based on the assumption that free markets can’t provide the maximum good for the largest number of people. It assumes people are not smart or responsible enough to take care of themselves, and thus their needs must be filled through the government’s forcible redistribution of wealth. Our system of intervention assumes that politicians and bureaucrats have superior knowledge, and are endowed with certain talents that produce efficiency. These assumptions don’t seem to hold much water, of course, when we look at agencies like FEMA. Still, we expect the government to manage monetary and economic policy, the medical system, and the educational system, and then wonder why we have problems with the cost and efficiency of all these programs.

On top of this, the daily operation of Congress reflects the power of special interests, not the will of the people – regardless of which party is in power.

Critically important legislation comes up for votes late in the evening, leaving members little chance to read or study the bills. Key changes are buried in conference reports, often containing new legislation not even mentioned in either the House or Senate versions.

Conferences were meant to compromise two different positions in the House and Senate bills – not to slip in new material that had not been mentioned in either bill.

Congress spends hundreds of billions of dollars in “emergency” supplemental bills to avoid the budgetary rules meant to hold down the deficit. Wartime spending money is appropriated and attached to emergency relief funds, making it difficult for politicians to resist.

The principle of the pork barrel is alive and well, and it shows how huge appropriations are passed easily with supporters of the system getting their share for their district.

Huge omnibus spending bills, introduced at the end of the legislative year, are passed without scrutiny. No one individual knows exactly what is in the bill.

In the process, legitimate needs and constitutional responsibilities are frequently ignored. Respect for private property rights is ignored. Confidence in the free market is lost or misunderstood. Our tradition of self-reliance is mocked as archaic.

Lack of real choice in economic and personal decisions is commonplace. It seems that too often the only choice we’re given is between prohibitions or subsidies. Never is it said, “Let the people decide on things like stem cell research or alternative medical treatments.”

Nearly everyone endorses exorbitant taxation; the only debate is about who should pay—either tax the producers and the rich or tax the workers and the poor through inflation and outsourcing jobs.

Both politicians and the media place blame on everything except bad policy authored by Congress. Scapegoats are needed, since there’s so much blame to go around and so little understanding as to why we’re in such a mess.

In 1920s and 1930s Europe, as the financial system collapsed and inflation raged, it was commonplace to blame the Jews. Today in America the blame is spread out: Illegal immigrants, Muslims, big business (whether they get special deals from the government or not), price-gouging oil companies (regardless of the circumstances), and labor unions. Ignorance of economics and denial of the political power system that prevails in D.C. make it possible for Congress to shift blame.

Since we’re not on the verge of mending our ways, the problems will worsen and the blame games will get much more vicious. Shortchanging a large segment of our society surely will breed conflict that could get out of control. This is a good reason for us to cast aside politics as usual and start finding some reliable answers to our problems.

Politics as usual is aided by the complicity of the media. Economic ignorance, bleeding heart emotionalism, and populist passion pervade our major networks and cable channels. This is especially noticeable when the establishment seeks to unify the people behind an illegal, unwise war. The propaganda is well-coordinated by the media/government/military/industrial complex. This collusion is worse than when state – owned media do the same thing. In countries where everyone knows the media produces government propaganda, people remain wary of what they hear. In the United States the media are considered free and independent, thus the propaganda is accepted with less questioning.

One of the major reasons we’ve drifted from the Founders’ vision of liberty in the Constitution was the division of the concept of freedom into two parts. Instead of freedom being applied equally to social and economic transactions, it has come to be thought of as two different concepts. Some in Congress now protect economic liberty and market choices, but ignore personal liberty and private choices. Others defend personal liberty, but concede the realm of property and economic transactions to government control.

There should be no distinction between commercial speech and political speech. With no consistent moral defense of true liberty, the continued erosion of personal and property rights is inevitable. This careless disregard for liberty, our traditions, and the Constitution have brought us disaster, with a foreign policy of military interventionism supported by the leadership of both parties. Hopefully, some day this will be radically changed.

The Campaign for Liberty has stepped to the plate big time in Virginia, getting out ahead of the feds and finding a sponsor for the Virginia Health Care Freedom Act, to be introduced in 2010.

The Act reads, in part:

Neither the Governor nor the Department of Health, the Department of Public Welfare or any other Commonwealth agency shall participate in the compliance with any Federal law, regulation or policy that would compromise the freedom of choice in health care of any resident of this Commonwealth.

Man, just copying and pasting that feels great.

Delegate Bob Marshall (VA-13) deserves credit for agreeing to carry this critical legislation. Now is the time for Virginians to start contacting their state representatives to inform them about the measure and ask for their support should ObamaCare make it out of the Senate.

Credit is also due to Delegate Charles Carrico (VA-5), who has agreed to carry the Virginia Firearms Freedom Act, which is similar to recent measures adopted in Tennessee and Montana.

In marked contrast to the health care “reform” legislation recently passed by the House, neither of these bills exceeds three pages.

This is great news for those in Virginia who still cling to the Constitution, but introducing these bills is just the beginning. Victory will require inexhaustible passion and energy since, as always, we must give our state legislators the courage to defend our freedoms.

And it will take political courage. Nancy Pelosi has already said that even if such measures pass at the state level, the federal government has the authority to impose its will upon the voters anyway. Then stick us with the bill, of course.

Try finding that one in the Constitution.

Thanks, but no thanks, Nancy.

Like the signs say: We’ll keep our money, guns, and freedom; you keep the change.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What Is The Federal System Of Government?

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

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

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

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

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

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

What Was The Purpose Of The Federal System Of Government?

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

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

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

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

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

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

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

How Did The Federal System Of Government Fail?

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

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

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

The Relentless Growth Of Government

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Demise Of The Ninth And Tenth Amendments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1913 Was A Very Bad Year

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

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

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

Intergovernmentalism Replaces Federalism

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

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

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

Can Federalism And State Sovereignty Be Revived?

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

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

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

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

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

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

In states around the country, there’s a growing movement to address and resist two of the most abused parts of the Constitution – the Commerce Clause and the 2nd Amendment.  Already being considered in a number of state legislatures, and passed as law in Montana and Tennessee this year, the Firearms Freedom Act (FFA) is a state law that seeks to do just that.

The latest to join the FFA movement?  Kentucky.  Pre-filed for the 2010 legislative session, HB87 seeks to “Create new sections of KRS Chapter 237, relating to firearms, firearm accessories and ammunition that are made in Kentucky, marked made in Kentucky, and used in Kentucky, to specify that these items are exempt from federal law”

While the FFA’s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government.  The bills in state houses contain language such as the following:

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

NULLIFICATION

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

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 Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010.  Fourteen 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.  And, massive state nullification of the 2005 Real ID Act has rendered the law nearly void.

ENOUGH IS ENOUGH

Supporters say the growth of such a movement is long overdue. 

“For far too long elected officials and unelected bureaucrats at the federal level have passively forgotten or actively neglected the Tenth Amendment that guarantees rights not enumerated in the Constitution be left to the individual states,” said Minnesota State Rep. Tom Emmer, who introduced an FFA in his state. “The willful disregard of the Tenth Amendment in relation to a citizen’s right to bear arms isn’t the only constitutional infringement that we should be worried about, but it is one that has been singled out by the new administration.”

“Enough is enough,” urged Tennessee State Senator Mae Beavers. “Our founders fought too hard to ensure states’ sovereignty and I am sick and tired of activist federal officials and judges sticking their noses where they don’t belong.”

LITIGATION

In October, the Montana Shooting Sports Association (MSSA) and the Second Amendment Foundation (SAF) filed a lawsuit in federal court in Missoula, MT to validate the principles and terms of the Montana Firearms Freedom Act (MFFA).

“We feel very strongly that the federal government has gone way too far in attempting to regulate a lot of activity that occurs only in-state,” explained MSSA President Gary Marbut. “The Montana Legislature and governor agreed with us by enacting the MFFA.  It’s time for Montana and her sister states to take a stand against the bullying federal government, which the Legislature and Governor have done and we are doing with this lawsuit. We welcome the support of many other states that are stepping up to the plate with their own firearms freedom acts.”

Even the most ardent supporters suggest that the real test will come if the federal courts rule against the FFA.  Will they give up at that point, or will they follow in the footsteps of medical marijuana activists around the country? 

The latter faced down nearly the entire federal apparatus – federal agencies who didn’t recognize state law, countless federal raids and arrests, and a Supreme Court that ruled against their cause in 2005.  Even with such stacked odds, they persisted in their state-level efforts, and today, enough states have medical marijuana laws that the federal government is unable (or unwilling) to oppose them.

Only time will tell if gun rights activists have the same courage.

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

Friend of the Tenth Amendment Center, and executive director of the Liberty Restoration Project, Catherine Bleish, speaking on State Sovereignty at the St. Charles (MO) Tea Party in October, 2009.

Visit her website at http://donttreadoncat.com/

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/.