- "It's an attempt by the states to stop the expansion
of the powers of the federal government and to reassert the original intent
of the clauses in Article I, Section 8, and the Ninth and Tenth Amendments
of the Constitution."
-
- "The Constitution allows certain powers to the federal
government, but leaves all other governmental authority with the states.
And for about the first 150 years that's pretty much the way things were.
But that's not what's happening now."
-
-
- O.E. MacDougal, Dave Duffy's poker-playing buddy from
Southern California, had come to town to fish the Rogue, a river that runs
215 miles from the heels of Crater Lake through forest and rapids until
it reaches the small town of Gold Beach, Oregon, a turbulent outlet to
the Pacific but a major inlet for king salmon.
-
- This morning Mac didn't look like he was in a hurry to
get out to the river. He sat drinking his third cup of coffee, chatting
with us about the state of the economy, what makes women beautiful, and
the best recipes for salmon. He's passionate about the last.
-
- When there was a major lull in the conversation, Dave
commented, "We've gotten some mail about the Tenth Amendment Movement.
But, other than the letters, I haven't heard much about it. Are you familiar
with it, Mac?"
-
- "Sure," Mac said. "It's an attempt by
the states to stop the expansion of the powers of the federal government
and to reassert the original intent of the clauses in Article I, Section
8, and the Ninth and Tenth Amendments of the Constitution."
-
- "What do you mean by 'original intent?'" Dave
asked.
-
- "The Constitution allows certain powers to the federal
government, but leaves all other governmental authority with the states.
And for about the first 150 years that's pretty much the way things were.
But that's not what's happening now.
-
- "Today, many people feel as though the federal government
has assumed too much power. The Tenth Amendment Movement is simply an attempt
by the states to restore the balance of power they feel the Founding Fathers
intended when they wrote the Constitution. Sometimes it's called the State
Sovereignty Movement."
-
- "Restoring the balance of power? That's all it's
about?" I asked.
-
- "Pretty much."
-
- "Why is there no discussion in the mainstream media?"
Dave asked. "Especially in the news."
-
- "Because it's the mainstream media!" Mac said.
"It's easier to ignore an issue you don't like; the alternative media,
especially on the Internet, is abuzz with Tenth Amendment Movement discussion."
-
- I chimed in, "There are those who claim the Tenth
Amendment Movement could lead to secession by the states and even to the
disbanding of the United States."
-
- Amendment X
-
-
- 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.
-
- Mac smiled. "That implies that by going back to
the way the United States was 70 years ago, and reasserting the original
balance of power between the states, the people, and the federal government,
we're going to cause the country to dissolve. It's a phony claim, but some
of the movement's opponents want you to see it that way."
-
- "Why?" I asked.
-
- "One way to counter anything is to misrepresent
it."
-
- "What do you mean?"
-
- "Instead of fighting against the real issue in
this case, restoring the balance of power between the people, the states,
and the federal government it's easier to argue against the manufactured
issue, and the manufactured issue is the threat of secession."
-
- "If it really were about secession," Dave said,
turning to me, "the media would be all over it. Secession is too good
a story to pass up."
-
- "That's actually a good point," Mac said.
-
- "But why do we need a 'movement' like this, anyway?"
I asked.
-
- Mac paused and his eyes went to the ceiling for a moment
as if looking for some words.
-
- "Let's go back to the beginning of the story the
beginning of this country, that is. Many of the Founding Fathers didn't
want a powerful centralized government. So, what they did, in 1787, when
they drafted the Constitution, was to define and limit the federal government's
powers in Article I, Section 8. And a few years later, with the adoption
of the Ninth and Tenth Amendments, they felt they had further clarified
the subject.
-
- "But the problem is that, despite the restraints
placed in the Constitution, right from the earliest days of the Republic,
the federal government has tried to expand its power. But it rarely got
very far doing it until the 'big government' era that started with the
Great Depression."
-
- "What happened then?" I asked.
-
- "First, President Franklin Delano Roosevelt, then
the Congress, and finally, after threats from FDR, the courts began to
reinterpret the Constitution."
-
- "What kind of reinterpretation?" Dave asked.
-
- "Those advocating a powerful centralized government
began to circumvent the restrictions placed on the federal government by
putting a new spin on what is called the commerce clause and coupled it
with the necessary and proper clause."
-
- Mac got out of his seat and retrieved Dave's almanac
from the shelf near him.
-
- "What are those?" Dave asked.
-
- "I knew you were going to ask that," Mac said
as he held the book up. Then he sat back down and leafed through its pages.
-
- "Both the commerce clause and the necessary and
proper clause are part of Article I, Section 8, which is that part of the
Constitution that lists the powers the federal government is allowed to
exercise," he said.
-
- "The commerce clause states..." and he began
to read from the almanac "...that Congress shall have the power to..."
and he ran his finger down the page, "To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes."
-
- Preamble to the Bill of Rights
-
-
- Congress of the United States begun and held at the City
of New-York, on Wednesday the fourth of March, one thousand seven hundred
and eighty nine.
-
- The Conventions of a number of the States, having at
the time of their adopting the Constitution, expressed a desire, in order
to prevent misconstruction or abuse of its powers, that further declaratory
and restrictive clauses should be added: And as extending the ground of
public confidence in the Government, will best ensure the beneficent ends
of its institution.
-
- Resolved by the Senate and House of Representatives of
the United States of America, in Congress assembled, two thirds of both
Houses concurring, that the following Articles be proposed to the Legislatures
of the several States as amendments to the Constitution of the United States,
all, or any of which articles, when ratified by three fourths of the said
Legislatures, to be valid to all intents and purposes, as part of the said
Constitution; viz.
-
- Articles in addition to, and Amendment of the Constitution
of the United States of America, proposed by Congress, and ratified by
the Legislatures of the several States, pursuant to the fifth Article of
the original Constitution.
-
- (Emphasis by me, JE Silveira)
-
- "The original intent of the commerce clause was
to regulate trade among the states and to ensure there would be no duties
or tariffs between them. The rest of the clause was meant to regulate trade
with foreign countries and the Indian tribes. However, those parts of it
don't concern us here. So, for the first 150 years, that's how the clause
was used. But for the last 70 years the part that pertains to the states
has been reinterpreted and used in conjunction with the necessary and proper
clause to mean the federal government can regulate almost anything that
takes place between states no matter how remote.
-
- "And the necessary and proper clause...?" Dave
asked.
-
- "That clause states that Congress has the power
'To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or Officer
thereof.'"
-
- "That sounds reasonable," Dave said.
-
- "Some of the Founders, guys like Jefferson, were
afraid the clause was granting the federal government unbridled power."
-
- "Does it?" I asked.
-
- "According to Alexander Hamilton, another of the
Founders, it only provides for the ability to execute the powers already
granted the federal government in the Constitution. But the problem is
that, coupled with the new interpretations of the commerce clause, the
feds have gotten their hands into almost everything."
-
- "What should they be limited to?" Dave asked.
-
- "In most of Article 1, Section 8, the Founders deliberately
provided a list of the enumerated powers for the federal government. Had
they intended to allow pretty much anything under the commerce clause and
the necessary and proper clause they'd have been wasting their time enumerating
the others.
-
- "Is there any other evidence that the Founding Fathers
actually meant to restrict the powers of the federal government?"
I asked.
-
- "Sure." He turned a page in the almanac. "In
the Preamble to the Rill of Rights are included the words:
-
- "The Conventions of a number of the States, having
at the time of their adopting the Constitution, expressed a desire, in
order to prevent misconstruction or abuse of its powers, that further declaratory
and restrictive clauses should be added: And as extending the ground of
public confidence in the Government, will best ensure the beneficent ends
of its institution."
-
- Mac continued, "The restrictive clauses added in
the first ten Amendments are to restrict the federal government, not the
states and, most assuredly, not the people."
-
- "I didn't know there was a preamble," I said.
-
- Article V
-
-
- 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, which, in either Case,
shall be valid to all Intents and Purposes, as Part of this Constitution,
when ratified by the Legislatures of three fourths of the several States,
or by Conventions in three fourths thereof, as the one or the other Mode
of Ratification may be proposed by the Congress; Provided that no Amendment
which may be made prior to the Year One thousand eight hundred and eight
shall in any Manner affect the first and fourth Clauses in the Ninth Section
of the first Article; and that no State, without its Consent, shall be
deprived of its equal Suffrage in the Senate.
-
- "It's usually omitted when the Rill of Rights is
printed," Mac said. "But the wording in the Preamble is very
important. It makes clear that those Amendments are there as further declaratory
and restrictive clauses.
-
- "But, despite the intention for a balance between
the states and the feds, since the era of big government started in the
1930s, the federal government has pushed the envelope expanding and entrenching
its powers and its pervasiveness in our society. This expansion has come
at the expense of the rights of the people and the states. Of course, some
people like it that way. Others have grumbled, but didn't know what to
do about it. And the courts, which once held the federal government in
check, also seem to have taken the attitude that bigger government is better
government.
-
- "However, lately, the feds have become ever more
intrusive. Among the recent acts by the federal government that have finally
triggered the Tenth Amendment Movement is the pending Real ID Act, which
amounts to a national identification system for all Americans. It was to
go into effect in 2008 but because of resistance among the states, starting
with Maine, the federal government has, temporarily, backed off on the
Real ID Act. It is now due to take effect in 2011."
-
- "What's wrong with the Real ID Act?" I asked.
-
- "It creates a surveillance society. Remember when
we were kids and we'd see movies about World War II Germany with Gestapo
officers boarding trains or accosting people on the street and demanding
to 'see their papers'? (We all knew what would happen if you didn't have
your papers.) We recognized that as a sign of tyranny, and we used to say
such an abuse of government authority could never happen here in the United
States. Not in America, not in the land of the free!
-
- "Well, it's here...or almost here, and freedom-loving
Americans see it as one of the early steps to a society in which all citizens
must be trackable by the federal government or suffer penalties under
the law.
-
- "And there are more intrusions that are irking people.
There's the whole Homeland Security thing; the No Child Left Behind Act,
which is a federal intrusion into education; the National Animal Identification
System, otherwise known as NAIS; land use laws; gun control; the Troubled
Asset Relief Program, otherwise known as TARP, that the government has
used lately to regulate the economy; and more.
-
- "It's programs, rules, regulations, and laws, one
after another, and they're in areas where many feel the federal government
has clearly overstepped its bounds. So, after 70 years of federal high-handedness,
the states are finally saying 'No!'"
-
-
- Interpretation
- "You say the increase in federal power has come
about because of new interpretations of these clauses in the Constitution,"
I said. "What's the matter with reinterpreting it? Isn't that what
makes it a living document?"
-
- Amendment IX
-
-
- The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.
-
- "It's living," Mac said with emphasis on the
word 'living,' "only in that it can and should be amended by the rules
set forth in Article V of the Constitution."
-
- "You don't think we should be able to interpret
the Constitution according to the needs of the times?" I asked.
-
- He shook his head. "There is nothing in Article
V that allows the Constitution to be changed or amended by interpretation.
It was expected that changes to it would come from Congress or from a Constitutional
convention and that the states would have to approve them.
-
- "Changes in the Constitution should be deliberated
and decided by the people or their elected representatives, not a special
interest, the Congress, or a President both of whom the Constitution is
supposed to protect us from or some activist judge. Allowing them to change
it through reinterpretation effectively flouts the Founders' intent."
-
- "You could make the case that if the Founders wanted
us to alter the Constitution with simple reinterpretation, they wouldn't
have bothered including anything that's in Article V," Dave added.
-
- "But how do we know what the Constitution is supposed
to mean, anyway?" I asked. "Doesn't it always come down to who's
interpreting it? Even as far as trying to figure out what the Founders
meant?"
-
- "No," Mac said. "The Founders left us
all kinds of documents including letters and essays, among which are the
Federalist Papers and the Anti-Federalist Papers, and they're pretty clear
on what the wording of the Constitution means."
-
- He got out of his seat again and went to Dave's computer
and googled something on the Internet.
-
- "For instance," he said when he apparently
found what he was
-
- looking for, "as to the powers of the federal government,
in number 45 of the Federalist Papers, James Madison, the man often referred
to as 'The Father of the Constitution,' wrote:
-
- "The powers delegated by the proposed Constitution
to the federal government are few and defined.
-
- "Keep that in mind: they're few and defined,"
he said, then continued reading:
-
- "Those which are to remain in the State governments
are numerous and indefinite. The former will be exercised principally on
external objects, as war, peace, negotiation, and foreign commerce; with
which last the power of taxation will, for the most part, be connected.
The powers reserved to the several States will extend to all the objects
which, in the ordinary course of affairs, concern the lives, liberties,
and properties of the people, and the internal order, improvement, and
prosperity of the State.
-
- "Today, the courts, the Congress, Presidents, and
the vast bureaucracy have turned the intent of those who framed the Constitution...our
Constitution...on its head."
-
- "What about a Constitutional Convention?" I
asked. "I understand quite a few states have already called for one.
Wouldn't that be the way to solve the problem? To write new Amendments
that would restore the balance?"
-
- "The last Constitutional Convention gave us the
Constitution we now have," Mac said. "It's a pretty good one,
if we just adhere to it. And today there's a new Convention being proposed.
The call for it came about as a way to get a balanced budget amendment
into the Constitution because it's not likely such an amendment will ever
be proposed by Congress.
-
- "So, let's say the call for a convention succeeds.
Who's going to man it? Who are the delegates going to be? More specifically,
where are the sort of people who gave us the Constitution we now have that's
based on freedom and limited government? Where are the Jeffersons, Madisons,
Masons, Franklins, and Washingtons who founded this country?"
-
- Dave said, "I understand that one of the dangers
of a Constitutional Convention is that, even if instructed by Congress,
or even if a law were passed trying to put restraints on what the convention
could consider, the members wouldn't be obligated to follow the orders
and they could, in fact, rewrite the entire Constitution."
-
- "That's true," Mac said. "If we have a
second Constitutional Convention, we could see wholesale changes in the
way this country is run and even major changes to the Rill of Rights. Do
we want to risk that? A Constitutional Convention could be a catastrophe.
Here's a partial list of things I think might change if today's politicians
or their minions could rewrite the Constitution:
-
- · Freedom of speech: We may get censorship through
"hate crime" bills and the Fairness Doctrine.
-
- · The right to trials: Prolonged detention without
trial could become the norm.
-
- · The right to bear arms: A repeal of the Second
Amendment is a definite possibility.
-
- · The right of assembly: We may be left only with
the right to free speech zones.
-
- · Property rights: Kiss those goodbye because
they will become collective rights and seizure laws, which are truly unConstitutional,
may become codified.
-
- "Furthermore, the hallmark of the rights the Founders
claimed we have is that they didn't have to be provided, with the notable
exception to the right to a jury trial. But if the Rill of Rights were
rewritten, expect rights to be included such as a right to healthcare,
a job, an income, etc. Unlike the Natural or God-given rights that we all
have naturally, these man-made rights will have to be man-provided, too,
and they will have to be paid for and provided by you and me.
-
- "The only safeguard we would have is that any and
all changes a Constitutional convention might bring would still have to
be approved by three quarters of the states. But who would want to let
it get that far?
-
- "The amendment process should never be taken lightly
and, in today's political climate, a Constitutional convention should not
be considered at all."
-
- "Give me the bottom line," Dave said. "What
would it mean if the Tenth Amendment Movement succeeded?"
-
- "The federal government will have to start behaving
by the terms of Article I, Section 8, the Ninth Amendment, and the Tenth
Amendment. It will mean more decisions can and will be made locally regarding
education, land use, etc. It'll also lead to more individual freedoms.
It will most likely mean an end to the idea of a surveillance society."
-
-
- Who's for it? Who's against it?
- "Who wants it and who's against the Tenth Amendment
Movement?" I asked.
-
- "It's significant that at least three dozen states
have introduced it into their legislatures. So it can't be characterized
as a fringe movement. But if it picks up even more steam, you can expect
that to be one of the accusations made against it.
-
- James Madison was one of the most important of the Founding
Fathers. He is considered the "Father of the Constitution," of
which he was the principal author, and he was one of the three men who
wrote the Federalist Papers which are the best source of what the Founders
intended when they wrote the Constitution. Madison also authored the Constitution's
first ten Amendments, the Bill of Rights. He was an advocate of a government
with checks and balances that would protect individual rights from the
tyranny of the majority. He would go on to become the nation's fourth President.
-
- "It's also been promoted or opposed along party
lines. When the resolution has been introduced into the various state legislatures,
the yea votes have been largely Republican and Libertarian while those
who oppose reestablishing the balance of power between the states and the
federal government have been Democrats. Mind you, the Republicans are not
solidly behind it, nor are the Democrats solidly against it, but that's
pretty much how the votes have gone. Libertarians are solidly behind it."
-
- "So, who else opposes it?" Dave asked.
-
- "The irony is that the very people we send to Congress
our representatives and senators are likely to oppose it."
-
- "That makes sense," Dave said. "They're
the manufacturers of big government. They're the ones who want the new
spin put on the commerce clause."
-
- Mac nodded.
-
- "Members of America's mammoth bureaucracy will also
oppose it," Mac said.
-
- "Their jobs depend on big government," Dave
interjected and Mac nodded again.
-
- "And there are many people in this country who want
a strong central government. It wouldn't surprise me if many wouldn't balk
at the institution of a dictatorship if it could be the dictatorship of
their choosing.
-
- "And a lot of people will buy into the accusation
that the Tenth Amendment Movement is just a mask for a secessionist movement,
so they'll oppose it not so much out of self-interest as ignorance. New
Hampshire's resolution was characterized as such by its opponents, so it
lost when it was introduced to the legislature. But it's likely to be reintroduced."
-
- "How do you think the movement is going to fare?"
Dave asked.
-
- Mac smiled ruefully and said, "I'm cautiously optimistic,
which is another way of saying I hope it succeeds but I don't have much
hope for it. And for quite a few reasons."
-
- "Like what?" I asked.
-
- "When it comes down to the reasons why they are
intruding in our lives, the government argues that it's the only way it
can function efficiently. The logical counterargument is that by doing
so, the government infringes on our rights. But the concept of rights is
becoming more and more abstract for the average voter."
-
- "Furthermore, the average voter doesn't even know
what's in the Constitution, never mind what Article I, Section 8, the Ninth
Amendment, or the Tenth Amendment say.
-
- "Then there's past history and the way the public
behaves."
|