|Issue #119 • September/October, 2009|
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.
“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.”
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.”
“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 Bill 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.
“It’s usually omitted when the Bill 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!‘”
“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?”
“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 Bill 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 Bill 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.
“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.”
“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.”
“What do you mean?” I asked.
“In 1994 Americans threw both houses of Congress to the Republicans on the basis of the promises they made in their Contract with America to rein in big government. But once they had power, with the exception of some of their freshman senators and representatives, the Republican Party turned its back on most of its own ‘contract’ and the federal government continued with business as usual. And what did the voters do? They did what they always do. They reelected them.
“What kind of message does that send to politicians about not keeping their promises?”
Dave said, “If you think about it, Mac, we already have the way to bring about change at our disposal, and we can do it without a Tenth Amendment Movement, without a Constitutional amendment, and without a Constitutional convention.”
Mac nodded. He knew.
“What is it?” I asked.
“If we really want to see power returned to the states, all we have to do is vote almost all of the guys currently in office out. It’s the very men and women We the People are sending to Congress who are leading the charge to empower the federal government even more. If we throw them out, and keep throwing them out when they trample on our rights, we can have the kind of government we’re supposed to have.”
“And because of these things, I’m not too optimistic about the movement’s future,” Mac said.
“But,” he said as he rose from his seat again, “I am optimistic about fishing the Rogue this morning. So, I’m out of here.”
“Wanna go?” Dave asked me.
“Sure,” I replied. And with that, all three of us went out the door.
|More information on the Tenth Amendment Movement:|
|Tenth Amendment Center
The John Birch Society
U.S. Constitution online
The CATO Institute
The Heritage Foundation
The New American
Campaign For Liberty
Stand up for America
State Sovereignty Movement