by Timothy Baldwin

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

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

Continue Reading

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

Tom Woods appeared as a guest on Antiwar Radio to discuss his article, The States’ Rights Tradition Nobody Knows, which was recently featured here at TenthAmendmentCenter.com.

He discusses the debt some progressive causes owe to states’ rights, the Kentucky and Virginia Resolutions, state nullification of unconstitutional federal laws, the undue respect given to the Supremacy Clause, and more.

Thomas E. Woods is the New York Times bestselling author of nine books, including Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse.  A senior fellow at the Ludwig von Mises Institute, Woods holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University.

Editor’s Note: In an effort to continually expand the Tenth Amendment Center as a forum for education and research, we are pleased to announce the launch of our “publications” section.  Here, we’ll feature research papers and more from renowned Constitutional scholars.  This first offering, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and “Expressly” Delegated Power,” by Kurt T. Lash, is one of the finest examples of Tenth Amendment scholarship available.

It was published in 2008 in the Notre Dame Law Review, which allows individuals and non-profit institutions to distribute it widely (please see copyright notice on the paper for full details).

Abstract

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland.

According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers.

As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to insert “expressly” into the text. Today, Marshall’s point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is also almost certainly wrong.

James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. According to these Founders, Congress had only expressly delegated power.

Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase “or to the people” to the Tenth Amendment ensured that the Clause would be read as a declaration of popular sovereignty.

According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of “expressly delegated powers” meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities.

Consistently read in combination with the Ninth Amendment’s declaration of the retained rights of the people, the Tenth Amendment was broadly understood to establish a rule of strict construction of federal power - the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

CLICK HERE TO DOWNLOAD THE FULL PAPER
(Adobe Acrobat Required)

Kurt T. Lash is the James P. Bradley Chair of Constitutional Law at Loyola Law School in Los Angeles, CA.  Since joining the Loyola Law School faculty in 1993, Professor Lash has published numerous articles on constitutional law, theory and history.  His work appears in some of the top law reviews in the United States, including Stanford Law Review, Virginia Law Review, Northwestern Law Review, and Texas Law Review.  Most recently, Oxford University Press has published Professor Lash’s book, The Lost History of the Ninth Amendment.  In 2007, Professor Lash served as Chair of the Association of American Law Schools Section on Constitutional Law.

Copyright, Kurt T. Lash, Notre Dame Law Review

by Richard Ebeling, Mises.org

As we prepare to celebrate the 233rd anniversary of the signing of the Declaration of Independence we should recall why the American colonists made their decision to break away from the British Empire. The Declaration, in the enumerated grievances against the British Crown, makes it crystal clear that the cause was Big Government.

I explain this in a new piece of mine, “A Declaration of Independence from Big Government.”

It was a Big Government that violated the colonists’ personal and civil liberties, and denied them economic freedom through the stranglehold of a spider’s web of commercial regulations, controls, and restrictions.

In addition, the hard working people of those thirteen colonies along the eastern seaboard of North America were burdened with numerous taxes that consumed significant portions of their wealth, and were imposed without their consent.

Everywhere, the king appointed various “czars” who were to control and command much of the people’s daily affairs of earning a living. Layer after layer of new bureaucracies were imposed over every facet of life.

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance,” the Founding Fathers explain.

In place of this oppressive system, the Founding Fathers declared the principles of a free people: every individual’s right to his life, liberty and the pursuit of his own happiness. The ground was laid for the noble experiment of a society of free men associating on the basis of voluntary consent and mutually beneficial exchange.

Unfortunately, in our own time we have returned to a system of government controls and fiscal burdens that are far more oppressive than the ones our Founding Fathers revolted against.

Those freedom-loving colonists rose up against a government that taxed a fraction of what the U.S. government plunders the American taxpayer, nowadays.

And the intrusive hand of government in our personal, social and economic affairs is far more pervasive today than anything those American colonists faced 233 years ago when the Declaration of Independence was signed.

This 4th of July, each of us should try to remind our fellow Americans about why the Founding Fathers led a revolution against the British government, and why the danger of Big Government is far greater in 2009 than anything they faced in 1776.

by Jack Hunter

When Texas Gov. Rick Perry said last month that his state had the right to secede from the United States, liberals scoffed, laughing at the mere suggestion.

When polls showed that one third of Texans believed in the right of secession, one liberal blogger said it was further proof of “just how whacked out Republicans are becoming during these days of their political exile.”

When various states introduced sovereignty resolutions, including South Carolina and Oklahoma, liberals considered it childish posturing; the Charleston City Paper’s Greg Hambrick wrote, S.C.’s legislature was just “stomping their feet in dissatisfaction” with the Obama administration.

For many, the question of American secession was settled once-and-for-all by Abraham Lincoln’s military victory against the South. Not so, writes Kirkpatrick Sale, author and director of the Mulberry Institute, a pro-secession think tank: “Of course, it is true that the particular secession of 1861-65 did not succeed, but that didn’t make it illegal or even unwise. It made it a failure, that’s all. The victory by a superior military might is not the same thing as the creation of a superior constitutional right.”

Sale raises a good point. If the Founding Fathers had lost the American Revolution to Great Britain, would the colonial’s quest to secede from England have been decided forever, all because of a military loss? The idea that the U.S. could still be an outpost of the British Empire is one that many today would find as laughable as some find secession.

Consider the secessionist movements around the world the U.S. has supported in just the last few decades. When the Soviet Union collapsed, and its 15 satellite nations declared their independence, America cheered. Our military intervention in the Balkans in the 1990s found the U.S. on the side of the Albanian secessionists. On the American Left, support for Tibet’s secession from China remains a popular cause célèbre.

CLICK HERE TO READ THE FULL ARTICLE

by William Buppert, LewRockwell.com

“First they ignore you, then they laugh at you, then they fight you, then you win.”
- Mohandas K. Gandhi

All the mainstream news outlets are laughing at the secession sentiment across the nation, so brace yourself. There are over eight state sovereignty resolutions floating about under the rubric of the Ninth and Tenth Amendments in addition to nearly twenty pending resolutions in other states. The DC embrace of Obamunism is frightening plenty of folks to include state legislators and driving Montana to kick the ATF out of the state in a landmark move to completely ignore the unconstitutional and hoplophobic notions of our rulers in Mordor on the Potomac when it comes to the keeping and bearing of weapons.

Secession has been broached in polite conversation by the Governor of Texas, no less. It is not as if the notion is new since the unfortunate victory of Union/Yankee forces in 1865. New England threatened it decades before Lincoln’s War and the Great Depression spawned a variety of secessionist discontents. Continue Reading

Continue Reading

by Thomas E. Woods, The Freeman

Thinkers in the classical-liberal tradition, to the extent that they support a coercive state at all, speak routinely of the importance of keeping government strictly limited. To that end, the United States has a written Constitution, which enumerates the relatively brief list of tasks entrusted to the federal government and whose Tenth Amendment makes clear that any power not granted to the federal government resides in the states, the authors of the federal compact.

That is all well and good, but how does a theoretically limited government remain so? Some have argued that it is impossible to restrain a government over time. The framers of the Constitution, for their part, were well aware of the tendency for power to concentrate and expand. Thomas Jefferson spoke of the calamity that would result if all power were vested in the federal government. Continue Reading

Guest Commentary from VirginiaConservative

If you have spent anytime at all in the western part of Virginia, you’ll find that monuments dedicated to U.S. Civil War are just about everywhere. For example, there are historical markers, statues, even an occasional flag or two. Generally, a lot of people who are native to the Shenandoah Valley are quite suspicious of the government in Washington due, in part, to the events before, during, and after that conflict. After all, a number of battles took place here and tales of the brutal actions of General Sheridan linger in the minds of many to this very day.

But now time for a bit of history, eh? The idea of secession was integral to the formation of the United States of America. After all, the War for American Independence against Great Britain was a secessionist movement. The thirteen colonies (or states) no longer sought redress or a greater sway in the matter of the government of Great Britain, but instead wished to break free of that government and to rule themselves as they saw fit. Continue Reading