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Posts Tagged ‘10th Amendment’

How Do We Get Back to Where We Were?

It’s hard to be a conservative when there’s little left to conserve. The increasing pace of America’s progression from free markets to a command economy has reached such a pace and become so obvious that way back in 2009 the Russian Prime Minister used his spotlight time at the World Economic Forum to warn America not to follow the socialist path. The Russian newspaper Pravda, once the leading communist voice on earth published an article entitled, “American capitalism gone with a whimper.” People around the world can see the individual decisions of producers and consumers are being replaced by the form letters of a faceless central-planning bureaucracy even if the Obama boosters still haven’t swallowed the red pill and watched the matrix dissolve.

Pushed by the breathtaking speed of America’s devolution into a command economy some conservatives have entered the ranks of the radicals. They’re beginning to think about how to cure the systemic political problems precipitating the November Revolution of 2008. One solution some are embracing is known as the Sovereignty Movement. This is a movement of citizens and state representatives attempting to right the listing ship-of-state by appealing to the 10th Amendment which says, “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 10th Amendment addressed one of the most hard-fought points in the establishment of a central government. The States even though they surrendered some of their sovereignty didn’t want to lose it all. Specifically they didn’t want to lose the power to make internal decisions. They did not want to be powerless before a distant national bureaucracy. So as the cap-stone of the Bill of Rights the 10th Amendment was meant to reassure the States they would remain sovereign within their borders. However, since the 1830s, court rulings have garbled the once universally accepted meaning of the 10th Amendment as the Federal Government extended its authority from roads to schools to GM to Health Care to whatever they want.

Now some are turning to a resurrection of the straightforward meaning of the 10th Amendment as a way to mitigate the ever expanding power of centralized-control and social engineering combined with perpetual re-election and runaway pork-barrel deficit spending. But, is this enough?

As a Historian I always believe even a little history might help push back the darkness swirling around us.  In 1787, at the close of the Constitutional Convention, as Benjamin Franklin left Independence Hall a lady asked “Well Doctor what have we got a republic or a monarchy.” “A republic” replied Franklin “if you can keep it.”

Many have the mistaken idea that the United States is a democracy. It’s not. It’s a representative republic. The Framers distrusted unfettered democracy therefore they inserted several mechanisms into the Constitution which added some innovations between direct democracy and the power to rule.

One of the great innovations the Framers built into our system is the federal concept. Since this is an important component of our political legacy that has been overlooked in our contemporary education system let me define what is meant by federal. A federal system is a union of states with a central authority wherein the member states still retain certain defined powers of government.

According to the Constitution the Federal Government cannot mandate policies relating to local issues such as housing, business, transportation, etc. within the States. At least this was how the Constitution was interpreted by President James Madison, the Father of the Constitution. He expressed this clearly in a veto statement in 1817. In that there has never been anyone more qualified to address the original intent of the framers I believe it is important to bring his entire statement into this article:

To the House of Representatives of the United States:

Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

“The power to regulate commerce among the several States” cannot include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause “to provide for the common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill cannot confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it cannot be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

This is an eloquent expression of how the Constitution was meant to be understood. However, through expansive interpretations by activist judges this gradually morphed into almost limitless Federal control of the domestic affairs of the States.

Another vital component of our Constitutional heritage is the protection provided by a system of “Checks and Balances” wherein each level or branch of government acts as a barrier to other levels or branches of government from acquiring too much power. The most important check on the power of the Federal Government in relation to the constituent States was the Senate. In the Constitution the people directly elected the House of Representatives to represent their interests, the various State legislatures elected the members of the Senate to represent the individual states.

The adoption of the Seventeenth Amendment in 1913 mandating the popular election of Senators fatally damaged this system. Since then, the States have been reduced from equal partners with the Federal Government to a group of individual lobbyists. Before this amendment senators remained in office based upon how they upheld the rights of their state. The hot-and-cold winds of populist considerations didn’t compromise the Senator’s ability to serve. This freedom to vote against populist sentiment allowed the Senators to balance the directly-elected House.

Now we have two houses of Congress trying to spend enough of other people’s money to make political profits for themselves. So what do I propose? Resurrect the 10th Amendment, repeal the 17th and while we’re at it we should drive a stake through the heart of the 16th which allows progressive taxation and all that’s still on the conservative side of radicalism.

Restore the balance and save the Republic!

Dr. Owens teaches History, Political Science, and Religion. He is the Historian of the Future @ http://drrobertowens.com © 2015 Contact Dr. Owens drrobertowens@hotmail.com Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens

 

Liberty is Null and Void

Americawas founded as a FederalRepublic.  This means our nation was designed to have two levels of sovereignty.  The States which pre-date the central government and which created the central government is to be one level and the central government they created was to be the second.   The separate States first combined to found a central government when they drafted and ratified the Articles of Confederation in 1781.  This combination was strengthened and expanded in the writing and ratification of the Constitution in 1789.  However, in both of these new beginnings it was always stated and assumed that the States were the building blocks out of which the whole was built.

The Anti-Federalists sought to safe guard the inherent rights of the Sovereign States in the face of a proposed national government which concentrated power and superseded the primacy of the States.  The Anti-Federalists are often dismissed by those of succeeding generations who have been educated by the victorious philosophical descendants of the Federalists, as mere obstructionists and people of no-account.  However, their ranks were filled by some of the greatest names of the Revolutionary times such as Samuel Adams, George Mason, Thomas Paine, and Thomas Jefferson.

Another well-known leader of the Antifederalists, Patrick Henry, questioned the very legitimacy of what are possibly the most famous words in the document: “We the People” when he said, “I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.”

Once the Constitution was maneuvered through the ratification process most of the Anti-Federalists faded into the background.  Forgotten were their war time services and forgotten were their warnings that a central government once established would inevitably grow in power to eclipse the States.

In the early days of the Republic the former Anti-Federalists attempted to keep alive the idea that it was the States which had created the central government and that the States therefore had the authority to determine if the central government had overstepped the authority which had been delegated to them by the States.  They proposed to do this through a process known as Nullification.

Nullification is the process through which they believed a State could suspend a federal law within its borders. In opposition to the Alien and Sedition Acts of the Adams Administration Thomas Jefferson and James Madison first enunciated this concept in1798. The tactic was accepted as a legitimate tool of the States by the Hartford Convention in 1814.  It was seen as a logical and legal protection against the encroachment of the central government upon the sovereign rights of the States.

The idea that a state or a combination of States could nullify what they perceived as unconstitutional laws passed by the central government which exceeded the delegated powers granted to it remained a point of contention until it reached a crisis in 1832.

The enactment of tariffs which were believed to be advantageous to the rapidly industrializing North and injurious to the agrarian South brought the question to a head.  South Carolinaled the way by adopting an Ordinance of Nullification which stated that the tariffs, “are unauthorized by the constitution of theUnited States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State.”  

This was countered by President Jackson’s Proclamation Regarding Nullification, December 10, 1832.  In this proclamation President Jackson stated, “I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.”  

Immediately after the President issued his proclamation Congress passed the Force Act.  This law authorized the use of military force against any state resisting the tariff acts. The President being the man of action immediately sent warships to Charleston harbor and ordered the strengthening federal fortifications there. The situation staggered towards war as both the central government and the government ofSouth Carolina prepared to dispute the Doctrine of Nullification on the field of battle. 

It was at this critical juncture that Henry Clay who had not been able to find any other State willing to join South Carolina earned his reputation as the Great Compromiser. On the same day the Force Bill passed, Clay negotiated the passage of the Tariff of 1833. This law provided for the gradual reduction of the tariff over ten years until it reached the levels which existed in 1816.  Jackson signed both measures thus priming and holstering the Federal power at one time.  In response South Carolina repealed its Ordinance Nullification while at the same time reaffirming its belief in the legality of Nullification by nullifying the Force Bill. President Jackson knew he had won a victory and sought to move on by ignoring this face saving action.

After this crisis the issue of nullification died down.  However, the belief that this was a viable and legal recourse for the States did not disappear, it instead evolved into the belief that the States which had created theUnioncould or should be able to nullify the union itself.  This in turn led to the secession of Southern States beginning withSouth Carolina.

This next crisis precipitated the Civil War.  This most deadly of all American wars destroyed the balance.  The power of the States was crushed by the overwhelming power of the central government.  Since that time the central government has grown, and grown, and grown until today it has become Leviathan.  Not the sea monster referred to in the Bible but the soul crushing all controlling political and social government described by Thomas Hobbs.

Today this debate over the relationship between the central government and the States has resurfaced.  As an administration moves aggressively to transform America beyond any semblance of a federal structure into a centrally-planned and totally controlled socially engineered society citizens from sea to shining sea are searching for ways to return to the limited government won by the Revolution and supposedly safe-guarded by the Constitution.

One of the most revolutionary proposals is a direct descendant of the Doctrine of Nullification.  The Repeal Amendment is supported by citizens and their representatives in every State and in the Federal Congress.  This proposed amendment states, “Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”  As of today, no State has passed the Amendment, and it has not gained enough support in Congress to advance past the proposal stage.

This proposed amendment is designed to restore the validity of the 9th and 10th amendments which have been fundamentally supplanted and submerged by the ever growing power of the central government.

The 9th Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The 10th Amendment states, “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.”

Unless we rebuild the reality of a balanced federal system we will soon find ourselves locked in the embrace of an all-powerful central government.  This Leviathan will seek to regulate the smallest details of our lives and the spirit of totalitarianism we spent the last half of the twentieth century fighting will win by default as the change our fellow citizens voted for brings the death of hope.

Keep the faith.  Keep the peace.  We shall overcome.

Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College.  He is the Historian of the Future and the author of the History of the Future @ http://drrobertowens.com © 2012 Robert R. Owens drrobertowens@hotmail.com  Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens

The Constitution Failed

People often ask me, “How could you write a book entitled The Constitution Failed?”  If the Constitution was written to ensure a limited government and if today we have an unlimited central government my question is, “How can anyone contend that the Constitution hasn’t failed?”

We know that for the last 100 years the Progressives have sought progress by changing the Constitution, which was written to establish unbreakable boundaries for government, without recourse to the amendment process.  The Framers knew that without these boundaries government would grow into a millstone around the neck of the American people.  Instead of a document establishing solid limits the Progressives say it is a living document that can be re-interpreted with each passing year evolving into whatever the current leaders may desire.

Our twin headed Progressive party of power expands and twists the General Welfare, the Commerce, and the Supremacy clauses to sanction any executive, legislative, judicial, or regulatory action they wish to impose whether it’s a welfare state, energy policies, or the mandatory purchase of insurance.  However, nothing is more symbolic of the current irrelevance of the Constitution to our leaders than the utter contempt they hold for the 9th and 10th Amendments.

Back during the original debate to ratify the Constitution these two sentinels of limited government were forced upon the proponents of a strong central government by those much maligned patriots the Anti-Federalists.  The Constitution never would have been ratified without an assurance that the first order of business for the new government would be the ratification of the Bill of Rights.  The capstone of these sacred rights is the 9th and the 10th Amendments which state:

The 9th Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 

The 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

I present the following examples of how our Progressive central government infringes upon the rights of the States and the people:

Term limits:

While in almost every instance that voters have had an opportunity to voice their opinion they have overwhelmingly approved term limits, and the courts have just as consistently overturned the will of the people.  Through ballot initiatives and Constitutional amendments to State Constitutions the people have spoken, but instead of the voice of the people we hear the commands of the elites.

The Supreme Court in a classic five-to-four decision in U.S. Term Limits v. Thornton (1995) said the states don’t have the authority to limit the terms of their own congressional delegations.  They further ruled that unless the Constitution is amended neither the states nor Congress has the power to limit the number of terms members of Congress can serve. Dissenting Justice Clarence Thomas pointed out that the majority ignored the clear meaning of the Tenth Amendment.  Since there is no explicit denial of the power to limit terms to the States in the Constitution the 10th Amendment clearly states this power is reserved to the States. 

Immigration:

When the Governor and legislators of Arizona attempted to address the hundreds of thousands of illegal immigrants who are pouring over their borders with Mexico each year they first had to admit that the Federal Government was not enforcing their own laws.   After the central government ignored their petitions and pleas for help for years the government of Arizona acted to protect their citizens.

Immediately, the Justice Department sued to block the law, contending it violates the U.S. Constitution.  The Arizona law was subsequently struck down by the Federal Courts using the Supremacy Clause for their justification.  Judge Richard Paez, said, “By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed [Homeland Security] agents.”  When it reached the 9th U.S. Circuit Court of Appeals a three judge panel said, “Congress has given the federal government sole authority to enforce immigration laws, and that Arizona’s law violates the Supremacy Clause of the Constitution”  The Federal Government has abdicated its responsibility to protect Arizona from invasion and in their opinion a law that requires law enforcement officials to enforce the law goes too far.

The intrusive actions of the Transportation Security Administration (TSA):

Legislators in Texas decided to take action to protect their citizens from what many considered to be overly aggressive pat-downs.  The reaction of the TSA to Texas attempting to protect their citizens from the molestation the Federal l Agency calls a pat-down is indicative of the attitude our central government has towards any infringement of their absolute power.  On their website The TSA Blog the gatekeepers of the air said, “What’s our take on the Texas House of Representatives voting to ban the current TSA pat-down? Well, the Supremacy Clause of the U.S. Constitution (Article. VI. Clause 2) prevents states from regulating the federal government.”  This says it all.  As far as our Federal masters are concerned there is no limit to their power.

Obamacare: Mandating action and penalizing inaction:

The Federal Government is attempting to enforce the mandatory purchase provisions of Obamacare alternately as authorized by the Commerce Clause and as a tax, depending on which argument they think a judge will uphold.  This massive invasion of personal liberty is currently being challenged by 28 States as being beyond the bounds of the Constitution.  Currently two judges have ruled it unconstitutional and three have ruled it constitutional.  If this is provision wherein not taking an action is considered either engaging in commerce and thereby subject to regulation or if a non-action is taxable what is left of our precious freedom?  What other non-actions will now be under the power of the government.  If a government can control our non-actions what does that say about their power over our actions?

By ignoring the unambiguous meaning of the 9th and 10th Amendments and by stretching and twisting the meanings of a few vague clauses the Progressive leaders of our Federal government have interpreted our Constitution to mean anything needed to do anything desired.  Once the words lose their meanings, once the sentences can mean anything the Progressives want, what power does the Constitution have to limit government?

Ultimately this is a message of hope because I trust in the ability of the American people to solve any problem they confront.  However, we have to admit there is a problem before we can solve it, and if we refuse to admit there is a problem we have no chance of solving it. The problem is our limited government has become unlimited and does whatever it wants.  How can I say, “The Constitution Failed”?  What I am saying is our system is broken, it is no longer functioning as designed, and we need a re-set button. 

Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College.  He is the author of the History of the Future @ http://drrobertowens.com View the trailer for Dr. Owens’ latest book @ http://www.youtube.com/watch?v=_ypkoS0gGn8 © 2011 Robert R. Owens dr.owens@comcast.net  Follow Dr. Robert Owens on Facebook.

Don’t Not Do That!

Don’t Not Do That!

For the first time the Federal Government has mandated that all citizens must purchase a product: health insurance.  If citizens fail to purchase the product they become law breakers subject to fines and penalties enforced by the IRS although we’ve been repeatedly assured this is not a tax.  According to the Federal attorneys arguing that this ground-breaking regulation is constitutional the Commerce Clause provides the authorization.  In other words, not taking an action is now considered commerce by the Federal Government.  In effect the Federal Government maintains for the first time in American History and perhaps in the History of the world that not doing something is doing something.  It is this type of newspeak, circular logic, and sophistry which destroys the credibility of those who tell us less is more.

Officially known as America’s Affordable Health Choices Act of 2009, this was the first entitlement passed without bipartisan support.  The only bipartisan part about it was that thirty nine Democrats voted with the Republicans against it.  Thus it passed with a slim majority and no Republican votes.  It was also passed over the objections of a majority of the population.  The new entitlement popularly known as Obamacare purports to insure tens of millions of previously uninsured people maintain the benefit levels of everyone else and lower the costs.  But will it stand the tests to which it is being subjected?  Will it ever be implemented?

With the date for full implementation placed years in the future step-by-step the new regulations, fees, and mandates are trickling into our lives.  However, although the President and his party managed to push this through Congress it won’t stand without a fight.  The debate has moved from the legislature and is wending its way through the courts.  So far two judges have ruled it constitutional and two have ruled it unconstitutional.  These rulings also followed party lines.  Judges appointed by Democrats ruled it constitutional and judges appointed by Republicans ruled it unconstitutional.  This will eventually be decided by the Supreme Court. 

If this is decided in favor of the Federal Government it paves the way for a classic 10th Amendment confrontation.  Several states such as Virginia, have passed laws saying that no law can require their citizens to purchase health insurance.  Since nowhere in the document does the Constitution give the Federal Government the power to mandate that citizens purchase anything this would clearly lie with the confines of the 10th Amendment which states, “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.”

In contravention to the States appeal to the 10th Amendment the Federal Government will point to the Supremacy Clause which states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  Using this as their rational as they did in the Arizona Immigration case the Federal Government using the Federal Courts will force states to legally step aside.  Then buying health insurance will no longer be an option because failing to do so will be illegal. In other words, “Don’t not do that!” or face the full force of the law and miraculously not doing something becomes doing something.

Another issue which might surface along the way is the question of waivers.  It seems many of the organizations, unions, and businesses who supported the law and helped lobby for its passage don’t want to live under its benevolent care.  Consequently the Obama Administration has issued hundreds of waivers exempting the President’s supporters from compliance.  This raises the question of the government passing laws that apply to some people but not to others.  Traditionally legislatures have always had the power to suspend the enforcement of laws in special cases.  However this has never been a power wielded by the executive in any except authoritarian states.  This flood of waivers raises another potential constitutional question with reference to the Equal Protection Clause of the 14th Amendment which states that everyone is guaranteed, “the equal protection of the laws” meaning that the state must apply laws equally and cannot give preference to one person or class of persons over another.

In reference to all these matters whatever the courts may say President Obama has already signaled that he will enforce the strictures of the law even if they are found unconstitutional.

Considering not taking an action to be commerce opens the door to many interesting possibilities. I didn’t buy Apple stock when it was $10 a share can I have my profits now? 

Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College.  He is the author of the History of the Future @ http://drrobertowens.com View the trailer for Dr. Owens’ latest book @ http://www.youtube.com/watch?v=_ypkoS0gGn8 © 2011 Robert R. Owens dr.owens@comcast.net  Follow Dr. Robert Owens on Facebook.