The Tenth Amendment

The Tenth Amendment
Powers of the States and People.
Ratified 12/15/1791.

“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.”

We are addressing the Tenth Amendment on The Vigilance Project with the same alacrity that we did the First and Second Amendments. Not because of what it is, but rather, because of how badly it has been ignored. This amendment, more than any other, has been diluted and intentionally misinterpreted by many administrations and those administrations have, to date, found willing coconspirators in the nation’s courts.

Since President Obama has taken the oath of office it appears to anyone outside of his inner circle that they have embarked on the course of massively increasing the scope and power of the Federal Government. The new powers they seek are being highly contested and the speed at which they are attempting to force legislation through Congress suggests that those that are opposed to this “fattening of the Federal hog” do not have the luxury of waiting until the mid-term Congressional elections to seek reasonable restraints. They are seeking to move their agenda forward before the challenges to the Constitutionality of these power grabs can even be launched.

The Tenth Amendment has been looked at by many as the only hope we currently have to restore balance to the union. We created this lumbering giant through our own ignorance and complacency and we are fast approaching a point of no return. If several new and extremely large bills such as Financial Reform, Immigration Reform or the Climate Bill actually pass, the Federal government will be so big and their powers so all encompassing that the chains of the U.S. Constitution may no longer be strong enough to restrain this super agency.

Why did that just sound like I blamed the average American for this? It sounds like I did because I did. Thomas Jefferson warned that Democracy can only work with an informed and educated electorate. Most of the electorate in this nation are not only poorly informed but have been educated with Marxist ideals by Socialists hidden within the education system. We watched the evening news transform from the daily reporting of important events into a scripted endorsement of the political views of the editor at large and we did nothing. We watched as our schools systems began the teaching of revisionist history and promoted the ignorance of the civil legislative process and we did nothing. We watched as Congress passed one questionable law after another and still did nothing. We did nothing and for our efforts, we got what we paid for.

The Federal Government has been engaged in the practice of siphoning powers from the states through random acts of legislation that were ‘tweaked” into existence through a loose interpretation of the enumerated powers that the Federal Government was originally entrusted with. FDR continued Wilson’s legacy and had sweeping powers granted to the Federal government during the Great Depression to empower his attempts to stabilize the economy during a time of crisis. To gain those powers, FDR and the Supreme Court had to stretch reason and the Constitution to the breaking point.

According to the Tenth Amendment, the government of the United States has the power to regulate only those matters delegated to it by the Constitution. Other powers are reserved to the states or to the people (and even the states cannot alienate some of these). The Commerce Clause in Article 1 Section 8 is one of the powers specifically delegated to Congress and how it is interpreted is very important in determining the scope of federal legislative power.

In the twentieth century the complex economic challenges of the Great Depression triggered a reevaluation in both Congress and the Supreme Court. This reinterpretation of the Commerce Clause gave the Federal government the ability to act outside of the enumerated powers in an attempt to correct a faltering national economy. It was after all, a crisis of international proportion. Of course, once you allow a breach of the Constitution for one thing, it sets the stage for further transgressions in the name of precedence.

During the Second World War (1942), the Court ruled that in the case of Wickard v. Filburn, federal regulations of wheat production could constitutionally be applied to wheat grown for "home consumption" on a farm; that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The government’s argument was that a farmer growing "his own wheat" can have a substantial cumulative effect on interstate commerce, because if all farmers exceeded their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market of wheat which justified government regulation under the commerce clause.

After Wickard v. Filburn, many such cases were decided solely on the precedent established in this case. In 2009, the Federal government is confidently using this precedent to declare the constitutionality of its pursuit of regulatory control of the healthcare industry. To say that a man in Peoria visiting a doctor in Peoria to arrange for a medical treatment that will be administered in Peoria somehow falls under the auspices of interstate commerce requires the same stretch of the imagination that was used to regulate wheat grown for personal consumption; wheat that not only did not leave the state, but didn’t even leave the farm it was grown on. Worse yet is the individual mandate in the healthcare bill that would require all Americans to purchase health insurance. For the first time in the history of this country, the Federal government is attempting to force people to purchase a private good against their will; that the act of not buying something is being perverted into a description of commerce that can be regulated by the Federal government.

The school of thought that justifies these actions is to say the least, a gross misinterpretation of the commerce clause and to say the most, a criminal attempt on the part of the Federal government to harvest powers that were clearly denied to them in the Constitution. Now that many States are considering or have already passed legislation to reaffirm their status as sovereign States, the first logical step is to revisit the decisions that give precedence to the Federal government’s drive to obfuscate even more powers belonging to the States and the people under the guise of interstate commerce. That is now under way and cases like Wickard v. Filburn are being tested again to determine if the decisions in those cases were in fact, correct and appropriate.

Another method used extensively by the Federal government to garner State participation in Federal mandates is through the use of funding. This tactic is widely used to obtain compliance for federal mandates where there is no Constitutional authority to enact the legislation in question.

The Federal government had issued directives that would change the maximum allowable blood alcohol level to .08 in an effort to create a uniform legal statute for intoxicated driving nationwide. States that would not adhere to this statutory change would lose eligibility for part or all of the Federal highway funds for road maintenance and expansion as the adoption of this standard became a requirement of the application for funds.

The same tactic was used to enforce the national 55 mph speed limit in an effort to conserve fuel after the fuel crisis of the early 70’s. The National Maximum Speed Law was a provision of the 1974 Emergency Highway Energy Conservation Act signed into law by Richard Nixon. It was revised in 1987 to allow certain highway speeds to rise to 65 mph and was eventually repealed in 1995. During the period of time that it was in force, the maximum allowable speed limit set by the Federal government was written into the requirements for eligibility for any State seeking Federal highway funds.

Now that the Federal government has had such wide ranging success in forcing even unconstitutional legislation upon the States through these tactics they have become bolder through the years. The States are being increasingly burdened by partially funded and even totally unfunded mandates. The legislation may have funding allocated for only the first few years leaving the states to figure out how to pay for the projects after the allocated funds have been exhausted. Some mandates, the high risk pools the States would be required to form by the healthcare bill, do not even pay the total cost to enact the legislation let alone the operating budget to maintain them. The States, like the people living in them have reached a turning point and are now seeking relief from these unfair and unconstitutional practices.

Since August 2009, 37 states have introduced resolutions in support of "state sovereignty" under the 10th Amendment. In seven states the resolutions passed (Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee). Further, two states (Montana and Tennessee) have passed specific legislation exempting residents from certain federal firearms regulations, while Arizona has a proposed constitutional amendment (to be voted on in November of 2010) which would nullify a national health care system from operating in the state.

While the Federal ATF has issued a letter to State officials in Tennessee reminding them that Federal law supersedes State law and that has the net effect of rendering the Firearms Freedom act invalid, no court challenges have yet to occur. I am sure that once the Federal government carries through with their threat of enacting restrictive legislation of the retail sale of ammunition, Tennessee and the Federal government will be seeking their day in the Supreme Court to settle the matter.

I pray that Tennessee wins that case because that will be the first swing of the axe that will begin to whittle the Federal government back to an acceptable size. In the end, if we cannot deflate the Federal government until it fits back into the box it came in, the budgets will continue to climb, the deficits will continue to defy logic, and the national debt will eventually attain a weight that will crush this nation.

Paul

The Ninth Amendment

The Ninth Amendment to the United States Constitution
Construction of Constitution.
Ratified 12/15/1791.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

“It is clear that the first eight amendments classify a list of clearly “enumerated rights”; rights that are identified and at least, basically described. The Ninth Amendment documents the recognition that man posses more rights and liberties than those contained in the eight preceding amendments. The Ninth Amendment provides a general protection of those unnamed rights by prohibiting the Federal government from enacting legislation that would deny any other rights simply because they were unnamed. It is important to note that the Federal government was denied the same statement of unnamed rights, limiting the government to hold only the rights and authorities specifically enumerated in the Constitution. That will be an important part of our discussion on the Tenth Amendment.

The Bill of Rights were crafted and added to the Constitution as a concession to the anti-Federalists that did not support the creation of a strong central authority without absolute constraints on its powers. Federalists argued that there was no need to add amendments to protect State and civilian rights since the Federal government would not be allowed to hold powers sufficient to impede those rights. Fortunately, the anti-Federalists won the day and judging by the number of challenges that the Supreme Court has faced over the years on the denial of Constitutional rights, the anti-Federalists have been vindicated in their fear of that power.

There were a number of unresolved issues during the forming of this nation, including slavery, which would nearly destroy the United States as we descended into a bloody Civil War to determine once and for all, the moral course of the country. As we discussed in earlier posts, the Declaration of Independence was nearly scrapped because of the allusions to the barbarous practice of slavery. The Southern States would have let it die then and there if the “offending” remarks were not stricken. The crafters of the Declaration withdrew what the Southern States considered “offensive remarks” knowing that a nation had to exist first and that the opportunity to correct this issue would present itself at a later date if they were diligent in the preparation of the Constitution that would govern this new nation.

The abolition of Slavery was really an eventuality because once the conscience of the nation recognized that the slaves were indeed men and women and not merely property, the Federal government would have to confer and guarantee the same protection of the enumerated rights upon them that the rest of the nation enjoyed. The Ninth Amendment will come into play almost exactly 100 years after the Civil War as the Civil Rights Act of 1964 clarified some of the rights there were not “enumerated” within the first eight Amendments. Again, it is important to note that the Civil Rights Act was not a broadening of Federal power but merely a refinement of the definitions associated with the existing Bill of Rights.

In our discussions of some of the previous Amendments we saw that the Supreme Court had been charged with deciding the specifics details of some of the provisions of the Bill of Rights. What is a speedy trial? What is cruel and unusual punishment? And so on. Those decisions also fall under the Ninth Amendment protection of non-enumerated rights. While those decisions were based primarily on definitions of existing rights, the legalists could have easily argued that those provisions were never written into the Amendments and therefore had no basis in law. It is only because the Constitution includes language that prohibits the government from denying unwritten rights that allows us the ability to argue in the cause of common sense, decency and justice. Without the Ninth Amendment there would be no basis for many of the challenges to the Constitution that have already taken place as those who were in control at the moment would have the discretion to adjust the criteria for things such as “cruel and unusual” and Speedy” to suit the prevailing winds of the social climate.

Prior to the Civil Rights Act of 1964, we saw situations where the justice system of an entire State endorsed and allowed all manner of illegal behaviors only because those acts were perpetrated against blacks. Segregation was the rule, reprisals were encouraged, investigations were thwarted and murderers, when finally apprehended, were released through mock trials. Not that the Civil Rights Act put an end to these practices overnight, but it did provide the Federal government the tools to place the full weight of the nation’s resources against those crimes, to prosecute the responsible under new Federal Statutes free from the interference of local politics in order to preserve the Constitutional rights of all Americans, regardless of race or creed.

The Ninth Amendment may become even more important as no less that 33 States have either proposed or passed legislation that reaffirms the sovereignty of the State as it appears in the Tenth Amendment. This is being done in the face of proposed Federal legislation that would place increasing financial burdens on States to fund mandatory programs that are only partially funded by the Federal government or in some cases, not funded at all. Also, since the healthcare bill has passed, there are Constitutional questions as to whether or not the Federal government has the authority to impose fines to force individuals to purchase healthcare insurance and if one or more of our un-enumerated rights are being violated as our choices for healthcare are impeded by Federal programs.

Then there is the Energy Bill (Cap and Trade) that is designed to force behavioral changes in the area of personal energy consumption through the use of punitive taxes. I would think that any government program designed to effect behavioral changes in the personal consumption of anything should be considered a violation of our un-enumerated rights. If passed, I am sure this will meet the criteria for a challenge based on those rights as well.

As though the insult of cap and trade was not enough, then let’s look at the proposals for a new tax on “sugary beverages”. In the effort to find more play money for Congress, they are considering placing a penny per ounce tax on any beverage that contains sugar. Of course this is cleverly disguised as a weapon in the war on obesity, but we can see the real intent when the proponents have dollars and cents figures in mind of what this tax will generate in revenue while they have a hard time establishing actuarial figures, what the expected health benefits will be over the same period of time. Again, a tax disguised as a tool to modify our behavior, the Constitutionality of which is in serious question.

Do you see the course this nation is taking? We used to fund public information programs so that people could make informed decisions about how they will live their own lives. Now we are using the tax structure to force behavioral changes simply because the think tanks in Washington believe you are incapable of making reasonable choices on your own. You know, when the punitive cigarette taxes came into play; the smoking opponents cheered. I agree it’s a nasty, filthy habit but provided smokers were courteous and businesses were willing to construct separate and filtered smoking areas, it should have remained a nasty, filthy personal choice.

I warned those that cheered that this was just the beginning. I recognized that when government was involved, that this was only about the revenue and not the cigarette. After all, then as now, the dollars were added up and spent before the heath risk benefits were still being debated. If it was not just about the money then why are the States crying that cigarette tax revenues are drying up as people quit and they may have to cut the programs that benefited from that tax money. No one believed me but now that they want to tax tanning salons and your kids “Hi C”, what do you think of me now? The tax will add roughly fifty-cents to a two liter bottle of soda and a dollar fifty to a 12 pack case of cans. Curiously diet soda will be exempt even though the heath impact of artificial sweeteners is still hotly debated. As these new sin taxes are being thrust on us through the healthcare bill, junk food taxes are already being discussed and aren’t far behind these latest assaults on freedom.

As our choices are slowly being steered by the heavy hand of government to implement additional Federal grabs for the few dollars we have left, I implore you to learn about your rights and fight fiercely to preserve them. Is it a stretch of the imagination to suggest that if Washington feels totally justified in taxing us into compliance with their idea of what a healthy American should be, that they may eventually use the same tactics to gain compliance for other more radical ideas? Maybe the things they believe American’s should “think” are important? Something to consider, huh? Big brother is watching and if you don’t squeal soon, the intrusions will get worse as your silence convinces them that they can do damned near anything.

Paul

A Constitutional Government? What a Concept!

Let’s play a game! I’d like to pretend for a moment that the Progressive movement doesn’t exist; that the subsequent Liberals never discovered Karl Marx or Friedrich Nietzsche. Let’s imagine an America where we had the foresight and courage to block Soviet Russia’s attempts to demoralize America by infiltrating the American press, film industries and educational systems. Let’s ponder the future as if our past had followed a course that more closely resembled the government our founding fathers had meant for us to have. Before we can actually play that game, we must start at the beginning with a review of what that government was supposed to look like. Only then can we remap the last two hundred years and perhaps, speculate on the next two hundred.

The people that founded the American colonies were for the most part, British émigrés, people that sought to escape religious persecution or leave the crowded streets of England’s urban centers and seek new fortunes by settling a vast, new and relatively uninhabited land. There were spacious tracts of land and seemingly limitless resources to be exploited by adventurous men that were fit and industrious. Living in a pre-industrial, agrarian world, uses for many of the “new world’s” resources were still largely unknown but they would certainly come into play later. By the time the British colonies were firmly established in America, the Spanish myths about cities of gold had been disproven and fur trade, fertile lands and natural ports were considered to be America’s greatest assets.

While many still traveled back and forth to England, the American born descendants of the original settlers had mostly taken their father’s places by the turn of the 18th Century. They were beginning to create an identity separate from their British heritage mainly because the British Crown treated them as second class citizens. England had fought several skirmishes with Spain since the inception of the colonies and was actively sparring with France on the borders of the American colonies by the time the mid 1700’s had arrived. England had stationed a number of troops to guard the colonies against French incursion but the British Treasury was under pressure and the cost to maintain a protective force in numbers was becoming prohibitive. The English population was already overtaxed and on the verge of revolt so England turned to her second class citizens in America to carry the financial burden of her own protection.

For many, it may seem proper that the beneficiaries of that protection should pay for it but this story could not be written if Britain had not taken that principal too far. Strict limits were placed on the manufacture of American goods so that British made goods would still be in demand. While one new tax after another was levied on colonial trade, the colonies were continually denied the representation in Parliament that British citizens had enjoyed for centuries. The troops sent by England to guard the colonies were slowly assuming the duties of suppressing the anger that was slowly brewing against the unfair restrictions and tariffs. The troops themselves became the center of the controversy as colonists were forced to house and feed the soldiers at their own expense.

All of this would boil over into open insurrection and finally result in a bloody revolt against British rule. The Declaration of Independence would have had no more historical significance than an advertising poster for fertilizing manure had the colonies not defied all odds and emerged victorious. With their independence from England, the colonies would use their proclamation of natural rights and the list of grievances in that declaration to create an entirely new form of government.

The new government would be founded on the principal that man’s fundamental rights descended directly from God and were irrevocable; that these rights had always existed and were not an act of kindness granted by a beneficent government. The basic structure of the government they created borrowed the most historically successful parts from a variety of cultures. It would contain a body of civilian representatives as found in the British Parliament; a Senate as found in the Roman Empire and a democratically elected leader as part of the experiment. All of these would be restrained by law and for the first time in the history of the planet, the word of law shackled the reach government and the citizens retained supreme rule over all of it.

Central to the formation of the new government was the principal that the States remained sovereign and self governing. The Constitution created a governing body that would unify the States while each retained autonomy and that would not be an easy trick. They achieved this through a “bottom up” strategy. The people retained direct control over State government through the electoral process and the State would govern its citizens by laws enacted with the consent of the governed. The individual States would freely enter into a Union of States whose governing body would be comprised of elected representatives from each State and a President elected by the citizens of all of the States in the Union. It would be a Republic, with the electorate selecting representatives based on their principals and those representatives would vote for or against legislation on their behalf.

Each State would have to agree to abide by the United States Constitution in order to enter the Union. The Constitution is a document that not only reaffirms the State’s sovereign rule but clearly defines the powers that the States would delegate to the Federal government; strictly limiting the Federal government to those powers alone. As part of the Union, the States would agree to obey the laws passed by the Federal government so long as those laws pertained to the responsibilities delegated to the Federal government by the Constitution. A Supreme Court was established that would rule on any Federal law that was challenged by a State or citizen that could prove harm.

Curiously, the Bill of Rights were added as the first ten amendments to the Constitution and not written into the original document. It is not that the Founding Fathers considered those rights as an afterthought; indeed they considered those rights supreme. They did not add them because they did not feel they embodied the Federal government with any power sufficient to threaten those rights. We now know the confidence they had in the Constitutional limits placed on the Federal government was overstated and the Supreme Court spends much of its time hearing cases surrounding those sacred rights. While visionaries, the Founding Fathers saw that power is corruptible and did the best they could to see that the Federal government was correctly restrained. What they did not envision were the future generation of Constitutional scholars dedicated to finding pathways around those restraints and that would inevitably bring us to a point where the Federal government it threatening to become the master and not the servant of the people.

The Founding Fathers were geniuses but alas, they were still mere mortals. If they possessed the powers of clairvoyance perhaps they could have avoided the mess we are in today with a simple table of definitions added as an appendix to the Constitution. That would certainly have taken the wind out of the sails of those prominent Constitutional lawyers and closed the loopholes that they are now driving trucks through. Those definitions already exist in the Federalist Papers, a series of letters and correspondence penned by the founders that clearly detail their intent and place the language contained in the Constitution in context. Unfortunately, since those letters are not part of the actual Constitution they bear no weight in the actual review of the law as it is written. Armies of legalist attorneys now argue each and every word written in the Constitution and assign modern interpretations that shatter what were once considered iron chains on the power of the Federal government.

Tomorrow we begin our experiment in earnest. We will imagine that the Founders did include that table of definitions in the actual Constitution and that there is no longer any question as to the role of the Federal government. Make sure you wear a helmet and elbow pads because it’s going to be one hell of a ride!

Paul