by Bob Ellis, DakotaVoice.com

Federalism and Tenth Amendment state’s rights have been under assault since the days of FDR.

The federal government was created to serve the states and, in the words of James Madison, “to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.”   Under the Tenth Amendment,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The astute constitutional student will recognize that there is no authority whatsoever under Article 1 Section 8 of the U.S. Constitution (the part of the Constitution which outlines the powers of the federal government) to create or administer a health care system. Continue Reading

by Delegate Christopher Peace (VA-97th)

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

by Missouri State Rep. Ed Emery, Joplin Independent

It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact.To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation.
–John C. Calhoun

Two hundred and thirty-three years ago, a group of men from states with different ideas and strengths convened to design a new form of civil government. Federalism emerged as the compact that became the U.S. Constitution. Federalism provided the protection of a central government while protecting the individualism and creativity of each state.

Delegates from the colonies engaged in lengthy debate and settled on what powers they would relinquish to a central government. Everything else they left to the states to decide and govern separately. Continue Reading

by Paul Armentano, NORML Deputy Director

Massachusetts Democrat Barney Frank, along with over a dozen cosponsors, reintroduced legislation in Congress to strengthen legal protections for state-authorized medical marijuana patients.

The bill, entitled the Medical Marijuana Patient Protection Act of 2009, seeks to amend the discrepancy between federal law and the laws of over a dozen states that have enacted regulations governing the therapeutic use of cannabis.

Thirteen states – Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, New Mexico, Nevada, Oregon, Rhode Island, Vermont and Washington – have enacted laws prohibiting medical marijuana patients from state prosecution. 

Passage of the the Medical Marijuana Patient Protection Act would ensure that medical cannabis patients or providers who are compliant with state law, such as Charles Lynch (who was sentenced in federal court), would no longer have to fear arrest or prosecution from federal law enforcement agencies.

Previous versions of the Medical Marijuana Patient Protection Act were introduced in both the 108th and 109th Congress, but failed to receive a public hearing or a committee vote.

While campaigning for the presidency, Barack Obama promised not to use Justice Department resources “to try and circumvent state (medical marijuana) laws” — a pledge that has been repeated in recent months by US Attorney General Eric Holder.

Nevertheless, agents from the US Drug Enforcement Administration have continued to target medical marijuana providers in states that allow for the drug’s use, and federal prosecutors have continued to bring federal anti-drug charges against defendants who were acting in accordance with their state’s cannabis laws.

It is time that we allowed our unique federalist system to work the way it was intended. Patients and their state representatives should have the authority to enact laws permitting the medical use of cannabis — free from federal interference.

Please write your members of Congress today and tell them to stop targeting and prosecuting medical marijuana patients and providers.

CLICK HERE TO TAKE ACTION TODAY

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Rob Natelson, recognized national expert on the framing and adoption of the United States Constitution, and Professor of Constitutional Law, Legal History, and Advanced Constitutional Law at the University of Montana School of Law, discusses the origins and nature of federalism, the benefits of a federal government, the role of the 9th and 10th Amendment, the Necessary and Proper Clause, Enumerated Powers, Rules of Construction, States Rights vs People’s Rights, and the Compact Theory of Government.

More from Rob Natelson:

It’s the People’s Right!

The Ninth Amendment, The Tenth’s Partner

The Enumerated Powers of States

Rob’s Page at the University of Montana

by Brinn Clayton

I propose the United States of America change its name to the Federalized States of America, or better yet the Coerced States of America. We should either make this change or return to a literal reading of the Tenth Amendment of the Constitution of the United States. Continue Reading

by Clarence B. Carson, The Freeman

Originally published in January, 1983

Several developments have contributed to making the meaning of federalism obscure. Some are old, some recent. Some may be more or less innocent; others are destructive of federalism itself. One of these that may be more or less innocent is the habit of referring to the United States government as the “federal government.” Whether it is innocent or not, it does tend to confuse the unwary. These United States have a federal system of government. The system embraces both the general government and those of the states. Thus, both the United States government and the state government are correctly alluded to as “federal” governments.

When Felix Morley called attention some years ago “to the illogical practice of referring to the central government as the ‘federal government’,” he declared that the confusion was “due to historical accident.” What he had in mind was that the supporters of the Constitution, when it was being considered for ratification, called themselves “federalists,” and the government under examination “federal.” From that beginning, he thinks, the idea of the genera] or central government being the federal government began to take hold. Continue Reading

by Larry L. Beane II, LewRockwell.com

The founders of the American Republic knew their Latin.

That is why they carefully chose the word “federal.” In James Madison’s original draft of a proposed new Constitution (the “Virginia Plan”), the word “national” was used to describe the proposed new Union. However, this word was explicitly rejected by the Constitutional Convention, specifically because the founders did not see the United States as a “nation” but rather as a “federation.” Their vision was for the United States to be a union of sovereign states as opposed to a consolidation of the states into “one nation, indivisible” – and this reality is embedded in the very word “federal.”

Convention delegate Gouverneur Morris addressed this distinction in the debates on May 30, 1787.

The Latin motto “e pluribus unum” also captures the plural nature of the Union. It was never meant to be collapsed and rolled into into “one nation.” This is even evident in common grammatical usage, for while the architects of the Union were still living, the singular verb “is” was not paired up with the plural subject “United States.”

But within decades, the federal government became increasingly heavy-handed with the states. Continue Reading

by Rob Natelson

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

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

by Michael Boldin

Famed legal theorist Randy Barnett has quite an interesting article up in the Wall Street Journal entitled, “The Case for a Federalism Amendment.” In it, he proposes a Constitutional Amendment as a way to stop the federal government from exercising powers beyond that which it is authorized to do by the Constitution.

He begins by writing:

In response to an unprecedented expansion of federal power, citizens have held hundreds of “tea party” rallies around the country, and various states are considering “sovereignty resolutions” invoking the Constitution’s Ninth and Tenth Amendments. For example, Michigan’s proposal urges “the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.”

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

While calls for federalism and anything else that could reduce the size and scope of federal power are good, his proposed way to achieve this has a greater chance of destroying federalism even further, rather than doing anything to achieve it.

First of all, Barnett’s proposed amendment:

Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.

Most troubling in this proposed amendment is Section 5 – which is where this amendment turns towards a destruction of federalism, rather than a guarantor of it, by giving the federal courts even greater power to intervene in the affairs of the states.

Here’s how Kurt T. Lash, James P Bradley Chair of Constitutional Law at Loyola Law School and author of The Lost History of the Ninth Amendment, puts it:

“I agree with Professor Barnett that much of his proposed Amendment reflects principles of federalism which the Founders believed they had engrafted into the text of the Constitution.  However, I think that Section 5 of the proposed Amendment threatens to transform this “federalism” amendment into a provision which would result in the destruction of federalism.

Section 5 appears to grant courts constitutional authority to invalidate any state matter which a court perceives to be a liberty interest.

Indeed, since the amendment is to be interpreted according to today’s public meaning, Section 5 opens the door to judicial invalidation of any number of state regulations which traditionally have been left to the states, but which an individual judge or justice believes “today” should be considered a matter of individual liberty.”

Legislating from the bench on steroids, anyone?  Thanks, but no thanks.

Noted Constitutional scholar, and best-selling author of “The Politically-Incorrect Guide to the Constitution” Kevin R.C. Gutzman weighs in on Section 5 as well:

“In explaining his proposal, [Barnett] calls this section “entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.”

This is a blatant falsehood.

James Madison proposed an amendment in the First Congress to empower the federal courts to enforce certain (not, as in Barnett’s case, all) individual liberties against the states.

His amendment not only was never ratified, but it was not even sent to the states by Congress.

Barnett has long been on record as an advocate of the Incorporation Doctrine, the Supreme Court’s historically unfounded justification for enforcing certain of its favorite rights against state governments despite the absence of any constitutional ground for doing so.

With the language cited above, Barnett proposes to legitimate this practice.

Like James Madison, then, Barnett is attempting to use the language of federalism to grant the Federal Government new power.

While the idea of following up the tea parties and the Tenth Amendment resolutions with a constitutional amendment has merit, then, Barnett’s specific proposal can in this area only make things worse.”

Worse, indeed.

If the problem here is too much power, how can giving even broader power be the solution?

Some do agree, though, that a constitutional amendment is the way to go.  So why not focus on amendment(s) that would actually limit the size and scope of federal power?

For example, in a post at Electric City Weblog, Professor Robert Natelson, an expert on the framing and adoption of the United States Constitution, recommends the following:

We need to discuss the content of such amendments, but to start the discussion, I’ve suggested amendments to require a balanced federal budget and to impose term limits on Congress – ideas that people are very familiar with, generally like, and that state lawmakers are have shown themselves willing to vote for…

Requiring a balanced budget and kicking people out of office after a specified number of terms do not together make a silver bullet, but they are, undoubtedly, direct limits on the power of the federal government.

As far as amendments go, that makes sense.

But what else can be done to, as Thomas Jefferson put it, bind the government down by the chains of the Constitution?

One word:  Nullification.

Null-i-fi-what?

While not common parlance, the doctrine of nullification has a long history in the American tradition.  It’s the legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional.

This theory has been around since the earliest days of the Republic.  For example, in response to the Alien and Sedition Acts, an anonymous Thomas Jefferson penned what became known as the Kentucky Resolutions of 1798.  These resolutions not only spelled out just what was wrong with the acts, but what the states’ proper and rightful response should be: nullification.  James Madison penned a very similar resolution that was approved by the Virginia Legislature that same year.

Here are some of the Jefferson’s most powerful words:

Resolved, that the several States composing the United States of America, are not united on the principles of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each State to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force…

1798 is far from the only time nullification has been invoked in American history.  For example, South Carolina’s bold nullification of tariffs in 1832, against nearly the entire American establishment, is usually called a failure. But it accomplished its main purpose: to bring down the rate of taxation.

Ok, you might be thinking, that sure sounds great and all, but wasn’t this whole nullification and resisting thing decided by the civil war?

Fast forward to 2007, and you’ll see an effective, practical example of just how well nullification works.

That year, the Maine Legislature overwhelmingly passed a non-binding resolution that refused implementation of the Real ID Act, and demanded that Congress repeal the law.  Shortly after, Utah did so as well, and soon, other states began to follow suit.

What happened?  The feds backed down.

The original deadline for implementation was delayed from May, 2008 to December, 2009.  As more states got on board and resisted through non-binding resolutions, the feds backed down again by extending the deadline to 2011.

What does this tell us?  Nullification works.  While the final nail hasn’t been put in the Real ID coffin yet, we have a great example of getting the federal government to back down through refusals to comply.

Regarding nullification, historian Thomas E. Woods may have said it best:

“The main point that nullification aims to address is that a government allowed to determine the scope of its own powers cannot remain limited for long. This is a lesson we should have learned by now. Moreover, since piecemeal solutions to reducing federal power have accomplished nothing, we can hardly afford to dismiss out of hand the idea of nullification, a remedy that is at once creative and intelligent, and recommended by some of the greatest political thinkers in American history.”

That, and not amendments expanding judicial power, should be our road-map for the future.