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 a 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 the agenda forward before the Constitutionality of this power grab can even be determined.

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 the Climate Bill and the Healthcare 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 poorly informed and improperly educated. 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 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 in 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.

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 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.

As of 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 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