The Tenth Amendment: A Rallying Point for Patriots
When Barack Obama was elected president of the United States, many citizens understood that freedom was at risk. This was because Obama’s political reputation was already characterized by the pursuit of bigger government, higher taxes, and the kind of “single-payer health care plan” that has led to the medical demise of Britain and Canada.
Thus, shortly after Obama’s inauguration, governors and state legislatures around the country began to talk of states’ rights: a topic that hadn’t been much discussed since the days when approximately 600,000 men, Confederates and Unionists combined, died in the Civil War.
And the focus on states’ rights that began after Obama was sworn into office has not only continued through the first quarter of 2010, but has actually increased. Due in large part to the passage of the stimulus bill and the more recent health care reform, 38 states have passed some type of resolution emphasizing the rights reserved to them in the Tenth Amendment to the Constitution. That amendment reads:
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 Tenth Amendment was meant to guarantee the federal government stayed within its proper sphere. Therefore, it makes it clear that all powers not explicitly given to the federal government belong to the states, and that all powers belonging to the states actually belong to the people.
Within five weeks after Obama’s inauguration, eleven states attempted passage of preemptive resolutions to avoid the financial burden certain to accompany the passage of Obama’s agenda. These states were Washington, New Hampshire, Arizona, Montana, Missouri, Michigan, Oklahoma, Minnesota, South Carolina, Georgia, and Texas.
While most of the eleven states succeeded in passing resolutions, some, like New Hampshire, did not. But even where the resolutions failed to pass they did not fail to send a message to Washington, D.C. The message was that citizens around the country, both Republican and Democrat, had already seen enough of Obama’s hope and change.
A perfect example of the language of these early resolutions is found in an excerpt from the one passed by South Carolina:
The General Assembly of the State of South Carolina, by this resolution, claims for the State of South Carolina 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 United States Constitution. …
Be it … resolved that this resolution serves as notice and demand to the federal government, as South Carolina’s agent, to cease and desist immediately all mandates … beyond the scope of the federal government’s constitutionally delegated powers.
If this keeps up,
Washington DC and California will have to pay their own bills.
With 12 trillion dollars in debt my Confederate money is worth more than their IOUs.
For more info visit the 10th Amendment Center: http://www.tenthamendmentcenter.com/
And read this post, Federalism is Freedom! from Red State: http://www.redstate.com/derkrieger/2009/12/28/federalism-is-freedom/
The lawyerly debates on this subject are amusing,
not just for the attempts to overlook the obvious
meaning of the 10th, but the obvious, deliberate,
subversion of it by the Federal Judiciary, in aid
of an unconstitutional Federal power-grab.
A word to remember during the continuing debate:
Subsidiarity.
Good for the States, but how do we not pay Federal income tax for these mandates if we live in a state that exercises it’s rights under the 10th Amendment?? I think ALL of the states that are in financial trouble should deal with their own problems, they got the goodies now pay for them. On a federal level departments like Health, Education and Welfare have exceeded their authority. In most cases I don’t want the services and I really don’t want to pay for things like 90% of the foreign aid that does no good for the tax payers. Charity has no place in our tax bills re: free health, Haiti’s aid beyond the immediate response, and food to Africa over the last 50 years has not helped Africa feed it’s own people.
Just wait for the costs the make 20 million criminals citizens.
Hawkins, I resent your outright lies about Canada and I demand an immediate apology and retraction.
Canada ran a budget/trade surplus thru 2008; entered the recession last among nations and emerged first.
There is no “demise” in the Canadian financial health or in Canada’s health care system.
The only bailouts in Canada were to keep the auto plants producing and employing in Canada.
The banks in Canada are the envy of the world.
The health care system is the envy of the world to any one who actually looks at its fiscal performance and its ability to deliver service; and keeping its doctors and hospitals state of the art.
Therefore Hawkins, I demand and immediate apology/retraction.
Bruce, I’ve got to say, I lived in Canada for a couple years, in Toronto and L.O., and in that time I met three people, co-workers, who were traveling to the US for medical treatment they couldn’t get in Canada, one person who was crippled and blinded by inappropriate treatment, and saw my cousin in Toronto wait three months for a pelvic exam after a gyn emergency when in the US she would have had the exam before she left the ER.
Maybe.
There is malpractice in the USA/Canada. Shall I quote individual cases of malpractice in the USA?
If you got a pelvic exam in an emergency room (Canada or USA) it was not from a specialist at pelvic exams.
And yes, thousands die from “super bugs” they get in hospitals.
And yes, Canada does not have 10% of its population with no health care; the USA does have 30,000,000 with no health insurance.
My post only related to the absurd/libellous assertion that Canada is suffering from medical demise.
By your own admission, your acquaintance got prompt emergency treatment. You do schedule for non-emergency issues and you may need to call a few doctors to see a specialist sooner…
In the USA there are clearly doctors/hospitals equipped to handle specific issues better than others…same in Canada.
Bruce, of the five cases I pointed out, four of them would be considered malpractice, or at least shoddy practice, in the US, but are not considered malpractice in Canada. There, they’re considered standard procedure. The fifth would be malpractice anywhere, but since the State is to a great extent immunized against malpractice suits, this guy wasn’t compensated anywhere near in proportion to his loss.
On the specific point of my cousin, I don’t know what medical school you attended, but at Duke there would have been a OB/GYN on call, and she would have received a pelvic, and other tests like an ultrasound, right then. Since people have the odd habit of having babies outside normal working hours, this is also true of most other hospitals. But in any case, you should read more closely: I said it was a gyn emergency, and that she didn’t receive a full pelvic, not that she didn’t receive a pelvic from a specialist. They packed her up and gave her hormones and said “since this is an emergency, we can get you to a GYN in six weeks.” Which turned into three months.
You also are repeating a common misconception, that no medical insurance means no medical care. At least in the US, this isn’t actually true.
This doesn’t mean there are no problems here. The common assertion, however, that Canada’s medical care is superior to the US, or even really on par with the US, doesn’t stand up to close examination.
Oh, and you might want to look up the word “libel”, as it is rather more constrained than you appear to believe.
According to Hawkins: “single-payer health care plan” that has led to the medical demise of Britain and Canada.
According to the facts, no such “demise” exists in Canada.
The United States spends much more money on health care than Canada, on both a per-capita basis and as a percentage of GDP.[5] In 2006, per-capita spending for health care in Canada was US$3,678; in the U.S., US$6,714. The U.S. spent 15.3% of GDP on health care in that year; Canada spent 10.0%.[5] In 2006, 70% of health care spending in Canada was financed by government, versus 46% in the United States.
Studies have come to different conclusions about the result of this disparity in spending. A 2007 review of all studies comparing health outcomes in Canada and the US in a Canadian peer-reviewed medical journal found that “health outcomes may be superior in patients cared for in Canada versus the United States, but differences are not consistent.”[7] Life expectancy is longer in Canada, and its infant mortality rate is lower than that of the U.S., but there is debate about the underlying causes of these differences. One commonly-cited comparison, the 2000 World Health Organization’s ratings of “overall health service performance”, which used a “composite measure of achievement in the level of health, the distribution of health, the level of responsiveness and fairness of financial contribution”, ranked Canada 30th and the U.S. 37th among 191 member nations. This study rated the US “responsiveness” or quality of service for individuals receiving treatment, as 1st, compared with 7th for Canada. However, the average life expectancy for Canadians was 80.34 years compared with 78.6 years for residents of the U.S.[8]
wiki quoting WHO: http://en.wikipedia.org/wiki/Comparison_of_the_health_care_systems_in_Canada_and_the_United_States
Bruce, there are a couple of other statistics you should look up.
First, look for mortality rate and duration of life post-diagnosis for cancers in the US, Canada, and the UK. This one kind of hits home for me, as I lost someone to a glioblastoma multiformae some years ago. The difference is that she had fairly radical treatment here, and lived a couple of years — long enough to see her oldest graduate from high school, long enough to see many more sunrises. In the UK and Canada, they’d have said she was inoperable, been given steroids and sent home to die, probably in less than 90 days.
Second, look at the difference in the definition of “live birth”: in the US we define as a “live birth” even very early prematures.
An awful lot of the difference in costs can be explained by the US trying to save people that Canada and the UK just let go.
The United States does no have 30 million uninsured due to need. Some citizens choose not to be insured. Some citizens can’t afford insurance, but are treated in hospitals anyway. As for the illegal aliens, who cares if they need medical coverage they should just go back where they came from. We pay far to mush foreign aid now and get nothing in return. no thanks and no respect. The United States does far to much for ingrates around the world and I for one see very little value in spending this money to sustain shitty governments, and ungrateful people.
Just another note on that “30,000,000 uninsured” NONSENSE. That statistic is so completely manipulated as to make it repulsive. To get to that number, those who for whatever reason (unemployment, personal choice, etc.) who were without insurance for even a single DAY in a particular year were added to the role of the “uninsured.”
I find it incredibly disheartening that even Canadians believe and repeat the LIES of our president and congress.
1. There are not 30 mill uninsured US citizens, 10 million citizens 20 million illegals.
2. Your leaders come here for treatment they can not get in Canada.
3. Anyone and everyone can get treatment at a hospital, just say no habla and the tax payers, the 40+% who actually pay taxes, will cover it. Why do you pay less for RX? Because the US pays more, therfore we pay for the R&D for the rest of the world.
4. Health care is not a right escond into the constitution.
5.You are a tard
Bruce
It is true Canada escaped the financial meltdown, through the virtue of having a very good handle on the banking and mortgage system. Canada was fortunate enough not to have allowed rogue operations such as CRA and Fannie/Freddie fuel the subprime mortgage business. Good for you! We should learn from that.
As for healthcare, Canada’s health care is eroding. Access is decreasing as well as most modern technologies. One of the biggest benefits of the Canadian system–the US subsidized drug prices–hopefully will come to an end as the US allows reimportation and group negotiation of prices by entities such as Medicare and Medicaid. The loss of a fat profit margin in the USA will finally force Pharma to change their method of exploiting the USA for the highest prices.
One out of two is pretty good!
We must keep this fire alive. The 10th Amendment is no less than our safe haven.
I can’t believe anyone would question what Hawkins’ said about Canada. Not because Hawkins’ can’t make mistakes but because what he wrote about their healthcare system is widely known to be true. There’s no doubt about it. To be honest, one of my first thoughts after the passage of Obamacare was: “Now where will Canadians go for good treatment?”
Canada offers basic health care to all. If you want additional coverage you are free to buy it including USA policies…
Assuming you live long enough to reach the front of the queue.
In Canada, you can already see the dawning of the next phase of health care; learn to do it yourself if you don’t want your loved ones to die waiting for service.
This is the kind of news that makes me proud of my country once more. Our governor (Rick Perry) understands the importance of the 10th Amendment very well.
And just how will States enforce these resolutions?
How can any of us enforce our opposition to Federal coercion?
Deny them tax revenue? How? Quit your job?
We let the Federal Government get away with Constitutional theft for over 100 years, and now we are going to just wish all that away?
One way to begin dealing with overreach from the federal government is for the States to demand an Article V convention to propose amendments to the Constitution.
In particular, I believe we will need an amendment which redefines and limits the federal government’s ability to use the Commerce Clause to subvert the sovereignty of the States. It is because of this loose interpretation that the 10th Amendment has been largely decimated by the federal courts, and it is time to begin working to correct the abominable authoritarianism of the US Congress and the Executive.
If cap and tax passes you won’t have to worry about a job, you probably won’t have one, you employeer will be taxed out of business.
“…states’ rights: a topic that hadn’t been much discussed since the days when approximately 600,000 men, Confederates and Unionists combined, died in the Civil War.”
Wow, talk about selective memory! It was the #1 topic for southern segregationists during the civil rights struggles of the ’50s and ’60s, and it was the pillar of Nixon’s Southern Strategy.
Yeah, anyone who talks about states rights is so obviously racist it’s absurd.
You forgot the /sarc tag. Or did you actually mean something as foolish as to accuse all individuals who support federalism as racists?
Bravo here Hawkins. There are clear separations of powers, even delegations of powers in the Constitution, we allow our federal government to overstep those to our peril.
If I may quote Thomas Paine, this position is “only common sense.” If we don’t put up some resistance via an appeal to the Constitution then Obama and his administration will run right over us. I believe they plan on running right over us any way: but at least we won’t lie down for it.
Right on Chris. I believe that 90% of the fight is convincing the bullies that we will not go quietly. All we have to do is continue to love our freedom more than they love tyranny.
Well al lest we have 50 State Governors who can seek medical treatment in Canada if we go to a single payer option.
When the Supreme Court finds in favor of the Federal Government, states should act and call a constitutional convention that gives them the power to dismiss Supreme Court Justices and take back their Constitutional Rights.
What part of “United” in “United States” don’t you get? Oh, wait, your advocating more of…hmm, what’s the word I’m looking for…oh, right, a confederacy of states. Which failed miserably, of course, both prior to the current constitution and in the Civil War.
All states have a very clear option if Congress passes legislation (by a little thing written in the Constitution called a majority that all states agreed to abide by) and the states feel it’s unconstitutional: file a lawsuit contesting the constitutionality of whatever your latest complaint is. Oh, wait. You won’t like that either because you only want the Constitution when it suits your agenda. Don’t like a Supreme Court decision? They’re the final arbiter of constitutionality—as ratified by the Constitution.
If ever there was a fight worth waging this is it. And proof of that lies in fact that news channel talking heads are doing their best to downplay governors and legislatures invoking the 10th (as with NASCAR, they downplay these appeals to the 10th by talking of how backwards and ignorant the citizens are who actually love their freedom enough to fight for it).
Not only did the Founders make the 10th A. to reserve the lion’s share of government power to serve the people to the states, not the Oval Office and Congress, but Chief Justice Marshall had appropriately established the following case precedent, now wrongly ignored by both federal and state lawmakers, that Congress can not lay taxes in the name of state power issues.
“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” –Chief Justice Marshall, GIBBONS V. OGDEN, 1824. http://supreme.justia.com/us/22/1/case.html
So not only is Obamacare, for example, constitutionally unauthorized as evidenced by the Constitution’s silence on public healthcare, but based on Justice Marshall’s official words, Congress never had the power to lay taxes to fund Obamacare.
Also, corrupt Congress is wrongly ignoring its Article V requirement to petition the states to ratify amendments to the Constitution which would give Congress the powers that it wants.
What a mess! :^(
The problem is that state lawmakers have not been doing their jobs to protect citizens from unconstitutional federal government interference in their lives, including illegal federal taxes.
What’s going on is that state lawmakers foolishly ratified the ill-conceived, anti-state sovereignty 17th Amendment in 1913, giving up control of the federal Senate. By doing so they unthinkingly gave up the voice of the constitutionally powerful state legislatures in the constitutionally humbled federal government. In the long run, this has made it difficult for state lawmakers to protect citizens from federal government interference in their lives, including illegal federal taxes.
What voters need to do in the midterm elections to help restore state sovereignty is this. Voters need to elect pro-state sovereignty lawmakers to both the federal and state governments. Then pro-state sovereignty lawmakers can use their legislative votes to destroy the phony powers of the Oval Office and Congress, putting the corrupt federal government back on its constitutional leash.
The Commerce clause seems to be the most often cited provision for justifying the expanded use of Federal power. Yet when this clause is so misinterpreted to apply to all commerce (including commerce not among the several states nor between a state and a foreign nation) then the powers of the Federal government are no longer enumerated – they have become enumerable. Thus the 10th Amendment is effectively nullified.
But this is a logical impossibility. The earlier text of the Constitution can NEVER nullify a later constitutional amendment. It works the other way around.
To Rich H.: I’m glad you brought up the Commerce Clause.
The main reason that we’re having major problems with Constitution-ignoring Congress is this, IMO. Activist justices in the 1930s and 40s perverted the General Welfare and Commerce Clauses so that Congress could overstep its constitutional limits. But in order to do so, outcome-driven justices had to ignore Jefferson’s writings about these clauses. Here’s what Jefferson had to say about these clauses.
First, here’s Jefferson’s common-sense clarification of the General Welfare Clause.
“1. To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.
It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.” –Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of a National Bank : 1791. http://avalon.law.yale.edu/18th_century/bank-tj.asp
Note that Jefferson clearly indicated that good intentions on Congress’s part are no substitute for enumerated powers when it comes to making legislation.
Here’s an excerpt from Jefferson’s writings on the Commerce Clause.
“For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.” –Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of a National Bank : 1791. http://avalon.law.yale.edu/18th_century/bank-tj.asp
With terms like “does not extend” and “exclusively,” Jefferson made it clear that Congress has no authority to interfere with intrastate commerce.
The bottom line concerning things like Obamacare is this. The Democratic-controlled 111th Congress is wrongly ignoring its Article V requirement to petition the states to amend the Constitution for new powers for Congress. The state power-usurping Congress is instead relying on the USSC’s perversions of the General Welfare and Commerce Clauses in the 1940s to make illegal legislation like Obamacare, legislation based on constitutionally nonexistent federal government powers.
Finally, voters need to elect pro-state sovereignty lawmakers to both the federal and state legislatures in this year’s midterm elections. Then hopefully, pro-state power lawmakers will work together to put the federal government back on its constitutional leash.
So help me out here. Was Jefferson against the National Bank? How did that work out? Odd guy, FOR the French Revolution, but AGAINST a National Bank and not a great friend of commerce in general…more of a nation of farmers, gentlemen farmers, in his case. Jefferson was a great man, no question, but also because of his era. Today, he would probably be no better, if as good as Bill Clinton. AND you can use one or another of his writings to prove virtually anything.
B. Johnson said:
“To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.”
I agree. The structure of Article I, Sec. 8 is that of a list of Congressional powers, with each enumerated power preceded by the word “To”:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
“To borrow Money on the credit of the United States;
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
“To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
“To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
“To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
“To establish Post Offices and post Roads;
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
“To constitute Tribunals inferior to the supreme Court;
“To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
“To provide and maintain a Navy;
“To make Rules for the Government and Regulation of the
land and naval Forces;
“To provide for calling forth the Militia to execute the Laws
of the Union, suppress Insurrections and repel Invasions;
“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;…”
What is noteworthy is that the “To” setting off each enumerated power is always capitalized, whereas the “to” in the phrase “to pay the debts…” is not. Even in the first sentence “The Congress shall have Power To lay and collect taxes…” uses a capitalized “To” in mid-sentence to refer to collecting taxes, versus lower case “to” in reference to the common defense and general welfare.
This is not a typo. I checked three different publications of the Constitution and the capitalization is identical. What else can it mean except that that general welfare is not itself an enumerated power but rather a proper purpose for exercising the previously enumerated power of taxation?
Perhaps this problem coming out of Washington cannot be solved in Washington — the Supreme Court included as it is part of central government.
The accumulation of power by the central government threatens federalism. It seemed we are heading in the direction of states becoming administrative districts of the central government. This is not the American tradition of the 10th amendment —- a perspective that the states and their people are the originating source of political power in the federal system.
If the ideological balance of the Supreme Court were liberal, it wouldn’t matter how many lawsuits were brought about the constitutionality of Obamacare; there would be no remedy for the continued destruction of federalism. The divinations of constitutional scriptures, by appointed liberal doctors of law, would only will bring pronouncements of what they want the “living constitution” to mean
The political focus on the upcoming elections should be what’s happening at the state level —– the elections in the state houses and governors. Sure, conservatives elected to Congress is very important, but I see this as a larger issue besides what is happening in Washington, and beyond the scope of Washington to resolve.
This represents a real opportunity: states and their people calling for a constitutional convention to reaffirm the Federalist system with its original perspective, that the ultimate source of political power resides with states and its people.
This would be the greatest political show on Earth. Much of the younger generation in America has come to accept the Supreme Court as final authority in the order of an ecclesiastical appointment of infallibility. The intense debate would be the most important achievement because it would bring focus on the constitution and original American traditions. People would start reading the Constitution and consider its historical traditions. I would see a real possibility of a renewal in the perspective by younger generations in our country.
This would also be a great spectacle for the rest of the world— for people of grassroots to rise up and say that this government of the people, by the people, for the people, will make final arbitration what is constitutional and what is not on the issue of federalism. This would be quite disconcerting to autocrats of every stripe.
A bonus accomplishment would be an amendment with some sort of mechanism allowing the states to void the encroachment by the federal government (Supreme Court included) by a 60% vote. However, the power of the federal government (Supreme Court concluded) remains superior to the states in powers delegated by the Constitution to the central government.
Federalism allows the states the prerogative to develop social welfare to the full bankrupting profligacy they wish to — or remain conservative in the small government, free-market perspective.
Note: anomalies in postings is due to using a speech recognition program– my typing proficiency is subpar and my editing hurried.
“The accumulation of power by the central government threatens federalism. It seemed we are heading in the direction of states becoming administrative districts of the central government. This is not the American tradition of the 10th amendment —- a perspective that the states and their people are the originating source of political power in the federal system.”
Slight correction, we “were heading in the direction of states becoming administrative districts of the federal government,” 100 years ago. Now I think it’s fair to say we’ve been there for a while. The 10th amendment has been gradually stripped of its meaning by virtually every President since FDR. With literally hundreds of court precedents now supporting a wide interpretation of Interstate Commerce, is it too late for the tenth amendment to be made meaningful again?
A political commentator in disagreement with the Supreme Court on some hot button issue may look to the writings of the Framers for support. If he finds helpful material, he will project his modern values and political arguments onto that Framer and suggest some ultra-constitutional authority for his position based in the Framer’s original intent.
Regardless of what the Framers would have thought about the healthcare law based on their individually held values, one thing is certain: the Framers’ primary motivating value in drafting the Constitution was to construct of a system of government that governs under the rule of law.
Any political argument drawing from the Framers intent to suggest abandonment of the rule of law based on the coincidence of a subsidiary value misunderstands the object of the Framers. A political argument for nullification of a constitutional act of the federal government calls for the abandonment of the rule of law.
The 10th Amendment does not grant state legislatures or governors the right to make constitutional findings. Only judges can do this, and judges are bound to follow the U.S. Constitution. They are also bound to follow the Supreme Court’s interpretations of the Constitution—which all governmental actors in the United States are bound to follow—whether it meets with their own interpretation of the Constitution or not. This protects us from the arbitrary and capricious whims of unchecked governmental actors free to interpret their own boundaries. This is the rule of law.
The Constitutional boundaries come in two forms, separation of powers, and federalism.
The constitution divides the powers of the federal government in the first three articles of the Constitution. The separation of powers addresses the concern that a single institution with plenary powers of government leads inevitably to tyranny. Broadly speaking, Article 1 grants to the Legislature the power to draft laws and collect taxes. Article 2 grants to the President the power to enforce and carry out the laws. Article 3 grants to the judiciary the power to interpret the Constitution and the laws of the federal government. The president may prevent an act of congress from becoming law through the veto power and the legislature may repeal or modify a law already enacted, but only the judiciary may hold a law unconstitutional.
The judiciary’s interpretation of the law is binding on all governmental actors. Without this binding effect, each governmental actor would be free to interpret the Constitution as it suits him, destroying the rule of law. The uniform effect of the judiciary’s interpretation of the Constitution on governmental actors preserves the rule of law by establishing the boundaries of lawful governmental acts. To rob the judiciary of its function in interpreting the Constitution is to rob our system of government of its fundamental value, the rule of law.
The second type of boundary established by the Constitution is federalism, or the relationship between the federal government and the states. Federalism addresses the concern that the central government’s interest in representing the whole population will create policies conflicting with the local interests of states.
The framers of the constitution balanced the need to protect local interests against federal domination, the need protect the greater population against frustration by minority interests, and the need for the government to be stable and uniform. It did this by limiting the powers of the federal government, establishing a hierarchy of laws, and structuring the federal government to provide political safeguards against federal domination of state interests.
The Constitution enumerates the powers of the federal government and leaves the residuary to the states and the people. Although limited in number, these powers are broad in scope, including the regulation of interstate commerce, collection of taxes for the general welfare, and the authority to make all laws necessary and proper to carry out and effect the powers of the federal government. If the federal government acts outside of its enumerated powers, the judiciary is the only governmental institution with the authority to stop it through its power to make binding interpretations of the Constitution.
The supremacy clause of the constitution establishes a strict hierarchy of laws. First, no law or act of government may conflict with the U.S. Constitution, and second, no state constitution, law or act of government may conflict with the laws of the federal government. The supremacy clause extends the judiciary’s role in protecting the rule of law to the actions of the states.
The political safeguards of federalism assure that politicians in the House must be sensitive to the local interests of their home districts, that the president must be sensitive to the local interests of those states with a large population and a close partisan divide, and that each state receive equal representation in the Senate. The enumerated powers in the Constitution establish the parameters for finding an act of the federal government unconstitutional after the fact; the political safeguards in the structure of the federal government frustrate central government action that would irritate local constituencies at home. If the healthcare bill withstands constitutional scrutiny, and it probably will, the political mechanisms available to its opponents are the appropriate means for overturning it. Seeking nullification as a third option displaces the judiciary’s role in government.
Displacing the judiciary’s role here would again lead to various governmental actors interpreting the law as it suits them and throwing the rule of law into disarray. Both state and federal judges have the authority to find laws in violation of the U.S. Constitution, but state legislatures or executives do not have this authority. If governmental actors seize the authority to interpret their own limitations, it would cause damage to our system of government far more grave than any harm the healthcare bill would cause.
Erin, if I understand you correctly, you are wrongly ignoring the following. If Congress wants powers which are not expressly delegated to it in Section 8 of Article I, then Congress must do the following. Congress must exercise its Article V option to petition the states for an amendment to the Constitution which will grant Congress such powers.
But the truth of the matter is that, since the time of Constitution-ignoring FDR, corrupt Congress has been ramming legislation based on constitutionally nonexistent federal government powers. Congress does so with the hope that activist justices will eventually find the powers that Congress is looking for “hidden” somewhere in the General Welfare or Commerce Clauses, and give the green light to Congress’s illegal, state power-usurping legislation.
B.Johnson:
I’m not sure you understand my argument correctly, because I did not address the mechanisms for changing the text of the Constitution.
I discussed the mechanisms for determining an act of the federal or state governments unconstitutional through certain limits on governmental power. (I discussed separation of powers and federalism; I didn’t address individual rights because its not relevant to this debate.) Primarily, I discussed the constitutional regime where the judiciary interprets the Constitution as protecting the Framers’ primary motivation of protecting the rule of law. The alternative, posed by those supporting nullification, is a system where state governmental actors make binding interpretations of the limits of federal power, and by necessary extension their own power, which I argue puts the rule of law in extreme jeopardy.
You are correct that if Congress wants to expand the realm of the federal government’s constitutional authority beyond what the constitution provides, it must amend the constitution pursuant to Article 5. My post was confined to arguing against the nullification proposition of displacing the judiciary (the body vested with the authority to interpret the constitution) and asserting an independent “right” for government actors to give binding effect to their own interpretations under the auspices of the 10th Amendment.
The 10th Amendment grants to the states and the people those powers not delegated to the federal government. It does not independently limit any of the powers that are delegated to the federal government. A later-in-time argument is inappropriate as the basis for such a limitation because the language of the 10th Amendment clearly avoids limiting the powers already delegated in the Constitution to the federal government. One such power is the supremacy of federal government. The Supremacy Clause precludes state governments from raising the 10th Amendment as the source of a right to nullify federal law. The Supremacy clause delegates the authority to nullify laws to the courts, not to state legislators and governors.
Based on your characterizations of FDR, Congress, and the courts, I think you are making some faulty assumptions that prevent you from clearly analyzing this issue.
First, you seem to believe that the rise of the administrative state under FDR happened without constitutional authority. I agree that the nature and scope of the federal government significantly changed during this period, but the Supreme Court has consistently held the commerce clause to be broad and the limitations of the 10th Amendment to be narrow when the regulated activity affects commerce. The legal fight is long since fought and lost for those who would prefer a severely limited federal government. Eighty years of Constitutional precedent is hard to ignore.
The political process remains available to those who want to continue this fight. Repealing or modifying the institutions of the administrative state takes only an act of congress and the signature of a president. Constitutional amendment is another political process that can effect the change you are looking for. The rub here is that these democratic processes require wide coalitions and it seems doubtful that the required number of people will consent to this vision of severely limited federal government.
Second, you seem to confused about the operation of the Constitution as a legal, as opposed to a political, instrument. As a political document, the Constitution, together with the declaration of independence, espouse our values as a free society. As a legal instrument, the Constitution sets the ground rules for the operation of our governments. As time goes on, our political values change and the way we relate to the political ideas of the Framers changes also. But the ground rules do not change easily, they protect the rule of law.
As a political matter, many of the Framers supported a diminutive federal government. As a legal matter, they established a system of government based on the rule of law, and vested the interpretation of the Constitution in the judiciary. Madison’s support of limited government is a good political argument to be made against passage of the healthcare law. Suggesting that we ignore the Supreme Court’s interpretation of the laws in favor of a governmental free-for-all where each governmental body decides what the Constitution requires of it on an ad hoc basis is a completely invalid application of the Framers’ intent, considering that the primary goal was establishing the rule of law.
By way of illustration, I suggest you examine the economic and social well being of populations governed by executives who are free to interpret the laws that nominally bind the government, or where no such laws exist. I submit that you will find significant disparities if you compare them to the standard of living enjoyed by people whose governments are bound by the legal interpretations of an independent judiciary.
Erin: “First, you seem to believe that the rise of the administrative state under FDR happened without constitutional authority. I agree that the nature and scope of the federal government significantly changed during this period, but the Supreme Court has consistently held the commerce clause to be broad and the limitations of the 10th Amendment to be narrow when the regulated activity affects commerce. The legal fight is long since fought and lost for those who would prefer a severely limited federal government. Eighty years of Constitutional precedent is hard to ignore.”
First, thank you for your patience with this discussion.
Next, I agree with the point you make about states arbitrarily (my word) nullifying federal government laws. Doing so essentially defeats the reason for a state becoming part of the Union.
However, your remark that the USSC has consistently interpreted the commerce clause is indefensible, IMO. Are you aware of the “cold war” concerning the interpretation of the General Welfare and Commerce Clauses that has been going on in the states since before the ink on the Constitution had dried?
More specifically, there was a fight in President Washington’s administration over how narrowly / widely the General Welfare and Commerce Clauses should be interpreted, Hamilton arguing for wide interpretations to get Congress to establish a national bank, Madison and Jefferson arguing for narrow interpretations. Regarding the Commerce Clause, Jefferson noted the following.
“For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.” –Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of a National Bank : 1791. http://avalon.law.yale.edu/18th_century/bank-tj.asp
With terms like “does not extend” and “exclusively,” Jefferson made it clear that Congress has no authority to interfere with intrastate commerce.
In fact, before FDR’s puppet justices nuked the Commerce Clause, the USSC had reflected on Jefferson’s “narrow” interpretation of the Commerce Clause, deciding that Congress had no business sticking its big nose into the medical practice.
“Direct control of medical practice in the states is obviously beyond the power of Congress.” –Linder v. United States, 1925. http://supreme.justia.com/us/268/5/case.html
But FDR’s outcome-driven justices seem to have overlooked Jefferson’s words about the Commerce Clause when deciding cases like Wickard v. Filburn in the 1940s. In fact, justices treated 10th A. protected state sovereignty in Wickard as if it were a wives’ tale, IMO, as evidenced by the following.
“In discussion and decision, the point of reference, instead of being what was “necessary and proper” to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood.” –Justice Jackson(?), Wickard v. Filburn, 1942. http://supreme.justia.com/us/317/111/case.html
So you are wrong, IMO, to claim that the USSC has consistently interpreted the Commerce Clause.
“The 10th Amendment does not grant state legislatures or governors the right to make constitutional findings. Only judges can do this, and judges are bound to follow the U.S. Constitution. They are also bound to follow the Supreme Court’s interpretations of the Constitution-which all governmental actors in the United States are bound to follow-whether it meets with their own interpretation of the Constitution or not. This protects us from the arbitrary and capricious whims of unchecked governmental actors free to interpret their own boundaries. This is the rule of law.”
The original articles of Confederation by the 13 colonies was too weak to hold the colonies together, thus the Constitutional convention. The states and people established the laws that founded the central government (the Constitution). Even so, a number of colonies were loath to give power to the central government and could only be persuaded to do so with additional amendments such as the second and 10th amendment.
The overarching law is that the states and the people are the rulemaking committee, and the judiciary are the only the umpires. The traditional perspective would have been that the Supreme Court would only adjudicate central government laws within the parameters of the powers delegated to the central government.
Since the states and their people comprise the rulemaking committee, they have the perfect right to call a convention and make an amendment with a mechanism to void the adventures of the central government outside of their designated powers.
This would justifiable because the single most important force of history is the intoxication and will to power by the ruling political elite — men becoming as gods controlling the lives of millions. The Supreme Court is not infallible; they are mere mortals with ever-present temptation to become philosopher kings. This amendment would protect us from arbitrary and capricious whims of unchecked governmental actors (Supreme Court judges) who feel free to interpret the own boundaries.
That would be the rule of law
Arch Conservatives in the 50.s and 60.s played the states’ rights game to avoid granting civil rights, specifically with regard to public educational institutions. It did not work, but eventually states did get around the law in their own way. However, in this case, your article certainly brings up some very interesting points. I am no law expert, but with regard to health care itself, as purely a law passed with a mandate to the states to carry it out..then…I cannot see any real legal equal protection clauses to be considered, hence, unless the only precedent would have to be the constitution itself. I can only see that the constitution has to win, therefore, you must be correct (equal protection is among all 50 states). If a state argues that is has the “constitutional right” to carry out federal law “as it sees fit” then that state, under the constitution, has the right to do so. Any federal challenge to what and how the state itself carries out the law is up to that individual state, hence, a legal case would be dismissed before it even reached the feds. The “protection” in this case is the states right’s to administer a law. Good article, thanks.
And we are responding, with organization and force. The Missouri Sovereignty Project. We have no intention of stopping.
http://www.mosov.org.
TG
…and Gerald Celente, Igor Panarin and Thomas Chittum are still nuts, eh? LOL.
Hang on to yer hats, kids. It’s gonna be a helluva ride…
Astonerii has it right!
And lets also restrict the franchise to the virtuous and intelligent.
Al
T Erin: What a scholarly article!
Howsomever: The constitution is not a closed circuit suicide pact. Just because those in control at present are the worst of the worst; satanic personalities, one and all, doesn’t mean that we cannot find legal, moral ways to remove them from office and execute them.
Some of us suppose that the proper way to do this is to agree that we will all live by the New Testament. That would eliminate war, crime and poverty. A nice start. That would not allow evil people to even vote, let alone hold office. A nice start. That would require all men, everywhere, to proactively love one another. A great start. Shall we go for it?
The loss of Constitutional Rights is seen clearly in this show:
http://www.youtube.com/watch?v=by1SIMspdOo
Photos from Founding Bloggers Chicago gathering to voice concern.
Arthur Brown’s “FIRE” accompanies photos to express meaning.
Will Nov. Elections occur? or will they be counted from the ballots found in the back of a trunk – MN Senate steal.
If the States are really serious about the issue of Federal powers, they should not look solely to the 10th Amendment. There is a more direct way of confronting the Federal government. It is the amending process of Article V of the Constitution: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments …” It would require just 34 states to call a convention to amend the Constitution as they saw fit. The State could return the commerce clause to its original meaning (and while they are at it, eliminate the 16th and 17th Amendments) and that would go a long way to reining runaway Federal power.
The usual argument against such a constitutional convention is that the entire constitution could be rewritten. This possibility is (should be) so frightening to the federal government leaders that they move to remove the pressure for such a convention through the traditional amendment process.
An amendment circumscribing the Commerce Clause might well avoid the worst of federal overreach.
On the one hand, someone says that states and governors do not decide constitutional questions. On the gripping hand, what happens after all the foofarra of petitions, appeals etc. and Scotus says ‘We are the deciders. We side with BATFE. And BATFE has oversight power over those weapons”. And the governor of Montana says, “To all the citizens of Montana, you can attend your local sheriff’s office to be sworn in as a peace officer of the state of Montana, provided you swear to uphold the Constitution of the State of Montana, and the Constitution of the United States. To the Justices of the Supreme Court: Molon Labe.”
Just how many BATFE agents would you think would want to try seizing ‘those weapons’ the next day….
Of course, none of them have read ‘Unintended Consequences’ by John Ross, so the answer may well be ‘a number of them’.
Hmm, sideshot legal question: can a *STATE* institute proceedings for treason?
To Bruce Stein – Just want you to know that the statistics you cite need very careful interpretation:
Life expectancy: The US has a higher percentage of African Americans who have outsized homicide rates (more than half the homicide in the US are African-American on African-American); that by itself would reduce life expectancy in the US; but further – African-Americans tend to have higher rates of diabetes and hypertension, again reducing life expectancy; also, to the extent that immigrants from third world countries that come here die early but get into our demographic statistics would also tend to reduce American life expectancy as measured; then Americans I believe tend to drive more than Canadians ans so tend to have a greater proportion of fatal auto-accidents, again reducing American life expectancy; and, finally, Americans may freely choose more dangerous life styles than Canadians and that would tend to reduce American life expectancy.
Then you mention infant mortality – the US tries to save very premature babies, and when the baby dies that increases our infant mortality; other countries just write off the baby as a spontaneous abortion.
As for the 2000 World Health Organization ratings – I remind you the WHO is an arm of the corrupt UN, so anything coming out any organization associated with the UN must be looked on skeptically (remember the IPCC and climategate?). Having said that, I point you to your own words which ranked heavily in how nations were ranked: “the level of responsiveness and fairness of financial contribution …”
In the end, the question is, what are the outcomes for sick people? For that, I would point you the Simon Fraser Institute in Canada and all the studies they have completed showing just how deficient the Canadian health system is.
To Bruce Stein – Just want you to know that the statistics you cite need very careful interpretation:
Life expectancy: The US has a higher percentage of African Americans who have outsized homicide rates (more than half the homicide in the US are African-American on African-American); that by itself would reduce life expectancy in the US; but further – African-Americans tend to have higher rates of diabetes and hypertension, again reducing life expectancy; also, to the extent that immigrants from third world countries that come here die early but get into our demographic statistics would also tend to reduce American life expectancy as measured; then Americans I believe tend to drive more than Canadians ans so tend to have a greater proportion of fatal auto-accidents, again reducing American life expectancy; and, finally, Americans may freely choose more dangerous life styles than Canadians and that would tend to reduce American life expectancy.
Then you mention infant mortality – the US tries to save very premature babies, and when the baby dies that increases our infant mortality; other countries just write off the baby as a spontaneous abortion.
As for the 2000 World Health Organization ratings – I remind you the WHO is an arm of the corrupt UN, so anything coming out of any organization associated with the UN must be looked on skeptically (remember the IPCC and climategate?). Having said that, I point you to your own quote from the WHO report which weighed heavily in how it ranked nations: “the level of responsiveness and fairness of financial contribution …”
In the end, the question is, what are the outcomes for sick people? For that, I would point you the Simon Fraser Institute in Canada and all the studies it has completed showing just how deficient the Canadian health system is.
The leftist enemy entrenched in DC is not going to give up power he grabbed after 100 years of ceaseless striving–by hook or by crook. Certainly not because you folks protest, hold rallies, states pass resolutions, etc. Nor is NOV the answer.
If we stop kidding ourselves about the nature of the enemy, we CAN stop the beast.
In march last year, i was telling an honest ‘liberal’ (a rare thing, that), how Obamanation reminded me of Peron in Argentina, she said, “oh i don’t think Obama is a fascist in disguise” … To that, i said, “the problem with fascists, and other sundry tyrants is that they show their true colors in direct proportion to the resistance they experience from the people (or from the opposition).” Well, it has been one year since then. The resistance has grown. So has the tyrannical methodology. At least three more years of this. And if the past 100 years of the enemy’s history is any indication, seven years—more likely, 70 years. The question we need to ask ourselves—are we willing to go through what the people of soviet union went through for 70 years? Because that is exactly what awaits us if we think that a little booklet written over two centuries ago is going to save us from the tyrant. Instead, it is precisely that booklet that needs to be saved from the tyrant. And the only power that booklet had in shaping this country came from the blood of the patriots who made it a sacred document.
What we have in this country is creeping totalitarianism, in the form of the mindless beast in washington DC. It erodes liberty slowly, taking advantage of every little crisis to tighten the screws of tyranny. This is not a conscious effort (at least up until Bush\ Obama), but the effect is the same. Slowly, oh so slowly at first, then faster down the slippery slope; a right gets turned into a privilege (exampe: concealed firearms carry) to be administered by some bureaucrat, and taken away at whim. Think of it as being analogous to how a python “crushes” its prey. It doesn’t really crush, but suffocate. First it throws its coils around the victim and tightens. The victim breathes out and the snake takes up the slack. Now the victim can’t breathe as deeply. The next time the victim breaths out, the snake again takes up the slack. By this process, the snake, without expending any substantial effort, finally suffocates its prey. So to with the federal government and liberty. Every time an opportunity arises, the monster senses the nation exhaling, it tightens up, stealing just a bit more of our liberty. This process only goes in one direction, because liberty once lost is never given back. Tighter and tighter, little by little, and one day you wake up in an openly totalitarian state, with no rights, and no way to get them back.
Some patriot will step-up and seriously slow the momentum of the Marxist/Socialist movement in America.