Rethinking the Southern Secession Movement of 1861

SECESSION - Union is Dissolved

by Diane Rufino, July 23, 2017

The question is: Was the Civil War fought over the issue of Slavery?  I won’t deny that slavery was an issue that inflamed the passions of both sections of the country and put each at odds with one another, but it was NOT the cause of the conflict that I will refer to as the War of Northern Aggression, a war which claimed the lives of over 650,000 young Americans.

At the end of 1860, with the election of Abraham Lincoln as president, the Union was on the verge of dissolution. By the time Lincoln was inaugurated on April 4, seven states had already seceded and a new nation had been formed, the Confederate States of America (complete with a new constitution).  Following South Carolina’s lead (December 1860), Mississippi, Florida, Alabama, Georgia, Louisiana, and then Texas formally severed political ties with the Union. On April 4, Virginia held a state convention to consider secession but voted it down, 89-45. (North Carolina would do the same). Lincoln could not allow the Union to be split; he could not lose the tariff revenue supplied by the agrarian South which, in 1859, not only supplied approximately 80% of the federal revenue, but was used to enrich the industrialized North. And so, something had to be done to give Lincoln a “pretext” to restore the Southern states to the Union.

On April 12, 1861, Lincoln tricked South Carolina militia forces into firing on the federal garrison at Fort Sumter, even after South Carolina had demanded, and even tried negotiating for, the transfer of the fort to the Confederacy. The attack on Fort Sumter would provide the pretext he needed. He used the incident to characterize the southern states as being in a state of active rebellion and thus ordering troops to subdue them. On April 15, President Lincoln declared a state of insurrection and called for 75,000 volunteers to put down the rebellion and to defend the capital.  With that proclamation, four more Southern states left the Union. The first was Virginia.

Virginia did not leave the Union because of slavery; same with North Carolina. We should take particular note of this piece of history.

Virginia looked at President’s Lincoln’s Proclamation and demand for troops, and just as her leaders did when President John Adams passed the Sedition Act, she saw serious constitutional violations and contemplated how she needed to respond.

In reading the responses by Virginia’s Governor John Letcher below, you will see that he exercised all the remedies implied in the concept of State Sovereignty, Tenth Amendment, and even the Declaration of Independence:  First, he refused to comply with Lincoln’s decree – Virginia would not supply troops. That is Nullification and Interposition. And then, because the proclamation evidenced the will of a maniac, a tyrant, and an enemy of the Constitution, and evidenced the transformation of the federal government into something Virginia could no longer trust her sovereignty with and no longer wanted to be associated with, her people decided to sever the bonds which held her in allegiance. Virginia seceded.

On April 16, Virginia’s Governor John Letcher made the following dispatch to Lincoln’s Secretary of War, Simon Cameron:

EXECUTIVE DEPARTMENT.RICHMOND, Va., April 16, 1861.

HON. SIMON CAMERON, Secretary of War:

SIR: I received your telegram of the 15th, the genuineness of which I doubted. Since that time (have received your communication, mailed the same day, in which I am requested to detach from the militia of the State of Virginia “the quota designated in a table,” which you append, “to serve as infantry or riflemen for the period of three months, unless sooner discharged.”

In reply to this communication, I have only to say that the militia of Virginia will not be furnished to the powers at Washington for any such use or purpose as they have in view. Your object is to subjugate the Southern States, and a requisition made upon me for such an object — an object, in my judgment, not within the purview of the Constitution or the act of 1795 — will not be complied with. You have chosen to inaugurate civil war, and having done so, we will meet it in a spirit as determined as the Administration has exhibited towards the South. Respectfully,

JOHN LETCHER.

The following day, Governor Letcher issued the following proclamation, which was published for the people of Virginia to read:

Whereas, Seven of the States formerly composing a part of the United States have, by authority of their people, solemnly resumed the powers granted by them to the United States, and have framed a Constitution and organized a Government for themselves, to which the people of those States are yielding willing obedience, and have so notified the President of the United States by all the formalities incident to such action, and thereby become to the United States a separate, independent and foreign power; and whereas, the Constitution of the United States has invested Congress with the sole power “to declare war,” and until such declaration is made, the President has no authority to call for an extraordinary force to wage offensive war against any foreign Power: and whereas, on the 15th inst., the President of the United States, in plain violation of the Constitution, issued a proclamation calling for a force of seventy-five thousand men, to cause the laws of the United states to be duly executed over a people who are no longer a part of the Union, and in said proclamation threatens to exert this unusual force to compel obedience to his mandates; and whereas, the General Assembly of Virginia, by a majority approaching to entire unanimity, declared at its last session that the State of Virginia would consider such an exertion of force as a virtual declaration of war, to be resisted by all the power at the command of Virginia; and subsequently the Convention now in session, representing the sovereignty of this State, has reaffirmed in substance the same policy, with almost equal unanimity; and whereas, the State of Virginia deeply sympathizes with the Southern States in the wrongs they have suffered, and in the position they have assumed; and having made earnest efforts peaceably to compose the differences which have severed the Union, and having failed in that attempt, through this unwarranted act on the part of the President; and it is believed that the influences which operate to produce this proclamation against the seceded States will be brought to bear upon this commonwealth, if she should exercise her undoubted right to resume the powers granted by her people, and it is due to the honor of Virginia that an improper exercise of force against her people should be repelled.

Therefore I, JOHN LETCHER, Governor of the Commonwealth of Virginia, have thought proper to order all armed volunteer regiments or companies within this State forthwith to hold themselves in readiness for immediate orders, and upon the reception of this proclamation to report to the Adjutant-General of the State their organization and numbers, and prepare themselves for efficient service. Such companies as are not armed and equipped will report that fact, that they may be properly supplied.

In witness whereof, I have hereunto set my hand and caused the seal of the Commonwealth to be affixed, this 17th day of April, 1861, and in the eighty-fifth year of the Commonwealth.

JOHN LETCHER.

On April 17, in a newly-called convention, Virginia, the traditional leader of the South, made the decision to secede – 88 to 55, on the condition of ratification by a statewide referendum. Neither Virginia nor any of the other later-seceding states understood the federal government to authorize violence against member states.

Virginia’s ordinance of secession was ratified in a referendum by a vote of 132,201 to 37,451 on May 23.

On April 4, Virginia decided to remain in the Union. How did that decision preserve or extend slavery?  Virginians had been willing to endure a crushing protective tariff under President Lincoln, the likes of the Tariff of Abominations (1828). And they understood that remaining in the Union would mean that slavery would continue to be under attack by his administration. Virginia was loyal to the Union even when the government was antagonistic to her.  No, slavery wasn’t the reason the Southern states of Virginia, Arkansas, Tennessee, and North Carolina (and probably others), left the Union. It would be Lincoln’s demand for troops that would change their minds. To these states, remaining in the Union was to abandon every principle of confederation that they valued. Continued loyalty to a Union that would attack member states and being forced to take up arms against her neighbors was inconceivable and intolerable.

Slavery was the issue that caused the North to become aggressively hostile to the states of the South and to cause the South to question whether the two regions could ever have enough of a common interest to remain joined together with a government that was to serve each equally and fairly. But the independent ambitions of the federal government and the schemes and twisted ideology of its president were the direct cause of its violent course the division would take.

 

Reference:

“Governor Letcher’s Proclamation: His Reply to Secretary Cameron – State of Affairs Norfolk,” New York Times, April 22, 1861.  Referenced at:  http://www.nytimes.com/1861/04/22/news/gov-letcher-s-proclamation-his-reply-secretary-cameron-state-affairs-norfolk.html

 

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Those Who are Tearing Down Confederate Monuments are Forcing Selective Amnesia on Americans

Image

ROBERT E. LEE - in front of door

by Diane Rufino, July 27, 2017

In this era when Southern (Confederate) leaders, symbols, generals, buildings, etc are being erased from our memory and history, and vilified in our conversations because of their connection to slavery, I wanted to take this opportunity to remind folks that they should really do some homework before jumping on this politically-correct bandwagon.  A history lesson is an opportunity for speech, for dialogue, for debate, for learning.  Erase history and you erase much more than the mere reminder than an event happened. Erase the memory of the Confederacy and you erase a time when states had the backbone to stand up for the principles in the Declaration of Independence (“Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness..”). Erase the memory of the Confederacy and you erase a time when states were willing to exert their natural rights of self-determination (aka, secession) rather than allow the federal government to subjugated them completely to its ambitious designs. Erase the memory of the Confederacy and you erase the last time in our nation’s history when states actually believed themselves to be the powerful sovereigns that they thought they would be under the US Constitution.

Be careful how you treat history.

Now many, it seems, are calling for the destruction of the monuments erected to Confederate leaders and Confederate generals, such as the great General Robert E. Lee.  There is no finer gentleman, no finer American, no finer human being than General Lee.  When President Lincoln tricked the South Carolina militia to fire on Fort Sumter on April 12, 1860, therefore giving him the reason he needed to raise troops to invade the South and force it back into the Union, he had some soul-searching to do. He was summoned to serve Lincoln and command the Northern Army, but then he would have to take up arms against the state he loved so much. Back in the day, one’s citizenship and one’s loyalties were first and foremost with one’s state (except, of course if you were a member of Congress). It was Lincoln’s Proclamation of April 15 that made Lee’s decision to fight for Virginia an easy one. Lincoln sent a dispatch to states such as Virginia and North Carolina, demanding that they send 75,000 troops to the Northern Army in order to invade the “rebelling states.”  Taking up arms, killing fellow Southerners, and imposing government force on his neighbors were things his conscience would not allow.  And so, he resigned the standing position he had with the government and joined the Confederate cause (Virginia voted to secede on April 17).

Lincoln had a tortured understanding of the Constitution and the South was right to resist.  Robert E. Lee, like so many other Southerns, was not a supporter of slavery and was looking forward to the day when the institution would either die a natural death (which it was on its way to doing) or would be abolished. He thought it an evil institution.  But slavery was not the cause of the hostilities that brought the War. It was government ambition, the disregard for States’ Rights, and the use of government force against member states (the ones who created the government in the first place) that initiated the violence that would claim more than 650,000 young American lives.  General Lee made the right choice. It may not have been the choice that best served our collective conscience regarding the enslavement of an entire race, but that’s not what the war was about. He made the right choice because only when states have the power to make their rightful decisions, including the decision to separate from an abusive government, can they effectively carry out the essential role that they play in our government system – to check the federal government when it oversteps its constitutional authority.

So, those who clamor to take down the statues of men like General Lee, or to erase his name from buildings and streets, take a moment to read what he had to say about slavery when the war was over: “I am rejoiced that slavery is abolished. I believe it will be greatly for the interests of the South. So fully am I satisfied of this, as regards Virginia especially, that I would cheerfully have lost all I have lost by the war, and have suffered all I have suffered, to have this object attained.”

SAVE THE REPUBLIC! Rethinking the American Union of States for the Preservation of Republicanism

SECESSION - Separate or Die (head, the federal government, is chopped off)

by Diane Rufino (citing Donald Livingston in his book Rethinking the American Union for the Twenty-First Century), July 26, 2016

The purpose of this article is three-fold:  First, I want to be provocative and get readers thinking.  Second, I wish to educate the reader on our founding principles. And third, I hope to encourage the reader to read the book Rethinking the American Union for the Twenty-First Century, written in part and edited by Donald Livingston, founder and president of the Abbeville Institute.  I enjoyed the book immensely and wanted very much to help get the word out.

I think the best way to encourage one to read the book Rethinking the American Union for the Twenty-First Century is to hook him or her using one of the more thought-provoking themes of the book. And so, this article is composed in great part using selected portions from one of the chapters in that book which I found most interesting – “American Republicanism,” authored by Livingston), with a discussion of nullification, interposition, secession, and federalism by myself.  Credit, of course, goes first and foremost to Professor Livingston.

Article IV of the US Constitution guarantees to every State in the Union “a Republican form of government.”  It is known as the “Guarantee Clause.”  It has not been widely interpreted, but constitutional scholars think it ensures that each State be run as a representative democracy or a dictatorship, preventing any initiative to change a State constitution to provide such.  The Supreme Court has essentially acknowledged that it doesn’t have the slightest idea what it means, has been reluctant to specify exactly what a “republican form of government” means and has left the clause devoid of meaning.  Historically, however, republics have had distinct characteristics, namely that its citizens make the laws they are to live under, that there is a Rule of Law, and that the republic itself be relatively small with respect to population and territory, to ensure that representation is meaningful.

The American system of 1789 was not a republic. It was a federation of republics – each state itself a republic – but the Union itself was not a republic. “A federation of republics is not itself a republic, any more than a federation of country clubs is not in and of itself a country club.” Under the Constitution of 1787, the central government could rule over individuals but only under the powers delegated to it by the sovereign States. All other powers of sovereignty belong to the States, expressly reserved through the Tenth Amendment, by the natural law of sovereignty, and contractually by force of the compact theory characterizing the Constitution. Given this framework, the final safeguard for a truly republican form of government for the people in America was, and could only be, some form of lawful resistance to the concentration of coercion in the federal government, which includes state interposition, nullification, or secession. These remedies are included in the “reserved powers” belonging to the States.

Nullification is a legal theory that holds that a State has the right to nullify, or invalidate, any federal law which that State has deemed unconstitutional. If the authority for the federal government only comes from the highly-contested and debated powers that the States agreed to delegate from their reservoir of sovereign powers, as listed in the Constitution, any federal law, policy, action, or court decision that exceeds such grants of power is “null and void” and lacks enforcement power. Since the federal government will always seek to support and enforce its laws and actions, it must be the States, as the parties to the Constitution and the ones which suffer the usurpation of powers with each unconstitutional action, which must rightfully declare “unconstitutionality” and prevent them from being enforced on a free people. Because the right of nullification is not prohibited by the Constitution (nor is it even addressed), it is reserved by the States under the Tenth Amendment.

Interposition is another claimed right belonging to the States. Interposition is the right of a State to oppose actions of the federal government that the state deems unconstitutional by in order to prevent their enforcement.  The very definition of a tyrannical government is one that imposes unconstitutional actions on its citizens. Tyranny is arbitrary rule. Interposition is the actual action, whether legislative or otherwise, to prevent an unconstitutional federal law or action from being enforced on its people. The most effective remedy against unconstitutional federal action, as emphasized by both Thomas Jefferson and James Madison, is nullification together with interposition. Interposition finds its roots in the Supremacy Clause.  While the Constitution and the laws made in pursuance are considered the supreme law of the land, laws (and other actions) not grounded in rightful or legitimate Constitutional powers are not supreme and the States are well within their powers to prevent such usurpation of government power belonging to their sphere of authority.

Secession, like nullification and interposition, is not prohibited by the Constitution (or even addressed), and hence, is a reserved right of the States.

Nullification and interposition were invoked in 1798 by Kentucky and Virginia to identify the Alien & Sedition Acts as unconstitutional and to prevent citizens of those states from being imprisoned essentially for their exercise of free speech and press. Secession was threated in 1815 by Massachusetts after it characterized Jefferson’s embargo against Great Britain and his Louisiana Purchase and then Madison’s War of 1812 as a history of abuses against the North, with an intent to further the interests of the South. All three States’ Rights’ remedies were regularly invoked in the antebellum period, in every section of the Union, to assert State sovereignty and to constrain the central government. As of 1860, the central government was out of debt and imposed no inland taxes. It existed simply off a tariff on imports and land sales. The Supreme Court was tightly constrained in its exercise of judicial review. It challenged the constitutionality of acts of Congress only twice – in Marbury v. Madison (the Judiciary Act of 1789) and the Dred Scott decision (the right of a slave to challenge his status in a non-slave state when brought there by his master). States and localities in almost all States in the North refused to comply with the Fugitive Slave Act (nullification), either by statue or by civil acts of disobedience, and most strikingly, the Wisconsin legislature and the State Supreme Court in 1854 and 1859 outright challenged the constitutionality of the Act (citing coercion of the states and state officials). South Carolina nullified the Tariff of 1828, citing the improper nature of the tariff, changing it from an ordinary tariff (for revenue collection for the government) to a protectionist tariff (to provide direct funding of “improvements” for the North, as well as other enormous benefits), and claiming it was nothing more than a federal scheme to directly enrich the North at the great expense of the South.

Today, it is taught and it is believed that the “checks and balances” in the American system are only those between the president, Congress, and the Supreme Court. We know about the veto procedure, the ratification process for treaties, appointments (including federal court justices) and judicial review (this last check is not in the constitution actually but a creature of the Supreme Court itself!)  The purpose of our Separation of Powers and our series of checks and balances is to prevent the consolidation of power in any one branch of government and any one group of representatives.  But only a very limited number of Americans understand and appreciate that the greatest check on the consolidation of power comes from the unique design feature of our government established by the States and our Founding Fathers in the conventions and debates creating the Constitution – and that is Federalism.  Federalism is idea that real power is shared by the members of the “federation,” which are the States, with the creature they created (the federal government), which is the reservoir of powers expressly delegated to it by the US Constitution.  Federalism is a “sharing” or “division” of power among sovereigns in order to prevent concentration and tyranny.  The idea is that the government, as a sovereign with very limited and expressly delegated powers, and the States, as sovereigns retaining all other powers of government, will jealously guard their sphere of power and will watch, ever-so-vigilantly, the actions of one another.  What more effective check on government power could there be !!  Sovereign versus sovereign, which is what the term “dual sovereignty” refers to.  Or, as I like to refer to this design feature: “Titan versus Titan” (a reference to Greek mythology).  Alexander Hamilton, in a speech to the New York Ratifying Convention on June 17, 1788, explained it this way: “This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”

Sadly, this most effective check on consolidation of power in DC has been effectively eroded – mainly at the hands of the US Supreme Court.  The checks from the States on central authority in the form of nullification, interposition, and secession have now been ruled out.  And this is just another way of saying that the federal government can define the limits of its own powers. And that is what the American colonists and ratifiers of the Constitution drafted in Philadelphia in 1787 meant by “absolute monarchy.”

Ask yourself this:  Which branch of government ruled out the essential and natural remedies of nullification, interposition, and secession?  The answer is the US Supreme Court, supporting the ambitious plans of the federal government and improperly relying on Marbury v. Madison (1803) and the Supremacy Clause of the US Constitution for authority. For a State to treat its decisions with less than full support would bring the full resources of the federal government into its backyard. It’s happened before. Andrew Jackson, Abraham Lincoln, Andrew Johnson, Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower. Rather than interpreting the Constitution, which pretty much is its sole task, the Supreme Court has redefined a new political and government system, one that is quite different from the one entrusted to us by our framers and founders.

When authority taken by the federal government falls outside of the enumerated powers, it makes no sense to ask the federal government to rule on whether the federal government has the power or not. The States, the ones which debated and ratified the Constitution for THEIR benefit, have no umpire on the bench.  As historian Tom Woods points out, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones.

So, it is no surprise that the Supreme Court consistently and steadily handed down decision after decision to strip the States’ of their natural remedies against the Titan seeking to subjugate them – the federal government. Again, the Supreme Court is itself a branch of the very government that seeks to benefit from the consolidation of power it wants by weakening the States.  What better way to get the States to calm down and get in line?

Thomas Jefferson was skeptical of the federal judiciary and warned that they had the greatest potential to undermine republican government. In 1823, he wrote: “At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

If you believe, as most Americans seem to believe (because of government indoctrination), that States no longer have the rights of nullification, interposition, and secession because of the action of one man, a virtual dictator, Abraham Lincoln, then you must reconcile the fact that no State any longer enjoys a republican form of government, as guaranteed in Article IV. That is, they no longer enjoy a republican form of government under any historical understanding of what such a government is nor under the vision of our founders. That notion has now decayed into a legal fiction.

But if the States are not republics, what are they?  Donald Livingston argues that the answer was given by Alexis de Tocqueville in his assessment of the French Revolution. According to de Tocqueville, the French revolution was intended to overturn the monarchy and return power to the people by creating a republic but in reality, it fundamentally changed nothing. The coercive government of the monarchy was simply replaced by a different type of coercive government.  The monopoly over government and land created by Kings (Divine Right of Kings) is a doctrine that embodies two bodies of the king. This duality is symbolized by this famous phrase: “The King is dead! Long live the King!” The first body of the king was the flesh and blood; the mortal body.  The second body was the monopoly, or the artificial corporation, established by birth-right and familial ties. Both bodies are coercive in nature since they are not “of the people” and can never truly represent them. When de Tocqueville said that the French Revolution fundamentally changed nothing, he meant that all that it did was kill the first body of the king. It left the second body of the king intact, merely changing its name from the “Crown” to the “Republic.” The revolution merely replaced the person of the king with a fictitious “nation-person.” In other words, what was created after the French Revolution was an absolute monarchy without the monarch; a regime that had all the major defects of a monarchy but none of the benefits. The post-French Revolution era of “republics” would increase government centralization beyond the wildest dream of any monarch. The German economist, Hans Hoppe, estimates that before the mid-nineteenth century, monarchs, as bad as they might have been, were never able to extract more than 5-8 percent of the gross national product (GNP) from the people, whereas “republics” have been able to exploit over 60 percent.

In his war to prevent Southern independence, Lincoln and the perversely-named “Republican” Party destroyed the two American institutions that had made true republicanism possible in a region on our continental scale – State nullification and secession. Without these rights, there can be no practical check to centralization and oppression of government, and hence, no practical way to ensure that the People of the several States are guaranteed a republican form of government.

Is it possible to have an exceedingly large republic, such as the size of our current-day United States?  British philosopher David Hume once considered the question of a large republic. He proposed the first model of a large republic in his essay “Idea of a Perfect Commonwealth,” which was published in 1792.  Hume’s model did not physically seek to divide territory up physically into individual sovereigns but rather to decentralize government power so as to preserve the human scale demanded of republican self-government. The question is whether this can realistically be done.

Hume agrees with the republican tradition that “a small commonwealth is the happiest government in the world within itself.” But Hume’s model of a large republic, in contrast to the historically small republic, would be to order the large republic in such a way as to have all the advantages of a little republic. The question is whether Hume’s model is translatable to the real world: Can the size of a republic be expanded without destroying those values unique to republican government (self-government and the rule of law) that require a human scale.

Hume’s idea of a large republic is something of the size of Great Britain or France. (Remember his essay was written in 1792!)  As a comparison, Great Britain is approximately equivalent in size to Wyoming and France is approximately equivalent in size to Texas. In Hume’s model, the republic is divided into 100 small republics, but with a national capital. Each of these small republics is then divided into 100 parishes. The members of each parish meet annually to elect 1 representative. This yields 100 representatives in each small republic’s legislature. The legislature selects from among its members 10 magistrates to exercise the executive and judicial functions of the republic and 1 senator to represent the republic in the national capital. That yields 100 senators, from among which 10 are chosen to serve as the national executive and judiciary.

Laws would be proposed by the national senate and passed down to the provincial republics or ratification. Each republic has one vote regardless of population, and the majority rules. To free the provincial legislature from having to vote on every trivial law, a bill can be sent instead to the ten provincial magistrates in each republic for ratification.

How does Hume’s large republic compare to the “highly-centralized regime” that the United States has become today?  Hume’s republic has 100 senators in the national capital representing the individual States, as we do. But the legislative body representing the nation of individuals is located in the several capitals of the provincial republics. This provides three essential advantages.  First, it provides a better and more republican ratio of representation to population. Hume’s republic is the size of Britain, which in his time had some 9 million people; yet his regionally dispersed legislature jointly yields 10,000 representatives.  [100 x 100].  By contrast, the United States has 305 million people, which is 34 times as many inhabitants. Its representative body contains not 10,000 representatives but only 435 representatives – a number that Congress capped by law in 1911.  Hume’s large republic provides a ratio of 1 representative for every 900 people, and so it is of a republican scale.  This is very important !!  The United States’ system provides 1 representative for every 700,000 people, which is not even remotely within a republican scale.

And if you are thinking that this unrepublican character of the United States can be remedied by abolishing the law setting the cap at 435 and increasing the number of representatives in the US House, you will need to understand that judging by the size of legislatures around the world, 435 is just about the right size for a lawmaking body. Everything in nature has a proper size for optimum functionality. A cell can only grow to a certain size (a certain volume-to-cell-surface ratio) so that it can absorb nutrients, eliminate waste, and respire most efficiently. A jury of 12 is perfectly suited to determine the facts of a case; a jury of 120 would be dysfunctional.  When the first US Congress met in New York in 1789, there were 65 representatives. There was 1 representative for every 60,000 people. James Madison thought that was an inadequate ratio to adequately represent the people in a republic. When the number of representatives was capped at 435 in 1911, the population in the United States was 93,863,000. That means that there was 1 representative for every 215,777 inhabitants. If we were to use the same ratio that was used in 1789 – 1: 60,000 – there would be over 5,000 members in the House of Representatives. This would be impossibly large for a lawmaking body. Size does matter.

So, if the number of representatives in Washington DC cannot be increased as the population increases, then we have clearly reached the point where talk of republican self-government is utterly meaningless.  We are merely a republican in name only. In the not too distant future, the population of the United States will reach 435 million. This would yield one representative for every million persons.  Who could honestly believe a regime under this system could be described as a republic?

The point is that a country can literally become too large for self-government.  It becomes unresponsive to the people because its representatives cannot possibly represent the interests of all its constituents.

If the United States has indeed reached the point of political obesity, then the only remedy would be to downsize. The United States will need to be downsized either through peaceful secession movements or through a division into a number of federative units forming a voluntary commonwealth of American federations – an idea that Thomas Jefferson was fond of.

For the moment, let’s put peaceful secession aside (which would divide the Union into distinct territorial jurisdictions or would create individual, independent sovereigns).  Suppose that the United States adopts such a model as Hume’s large republic. This would require abolishing the House of Representatives in Washington DC (Yay!) and transforming the State legislatures into a joint national legislature. The Senate would propose legislation to be ratified by a majority of the States, each State having one vote.

Consider trying to enact the unpopular legislation passed in 2009 and then 2010 under such a model. Of course, I’m referring to the Bailout bills and the stimulus packages of 2009 and then the Patient Protection and Affordable Care Act (or grossly referred to simply as the “Affordable Care Act’; or aptly named “Obamacare”) of 2010. A strong majority of Americans opposed the bailouts for the monster banks whose corrupt and inept policies caused the financial meltdown in 2009, the economic stimulus packages that they knew wouldn’t work, and Barack Obama’s healthcare plan of some two thousand pages, rushed through after secret meetings and secret deals and with publicly-acknowledged privileges given to some states and not others, and admissions by its leading supporters (Democrats) that they hadn’t even read it.  To this should be added that many believe that Congress has no constitutional authority to bailout businesses, let alone arbitrarily choosing which ones to provide federal aid, nor to impose a national healthcare plan, regardless whether it is good or not and whether or not it would help certain citizens out. Now, had these bills been sent down to the State legislatures for debate and ratification, as required by Hume’s large republic model, their defeat would have been so certain that they probably would never have even been proposed in the first place.

The second advantage presented by Hume’s model is that by dispersing the national legislature among the provincial republics (the smaller republics), he has eliminated the corruption that inevitably comes from putting the House of Representatives and the Senate in the same place. The number of representatives in Washington is 435 in the House, and 100 in the Senate– for a grand total of 535 lawmakers. A majority of this number is only 269. This small number rules 305 million people. And the majority can be even less, since both houses can lawfully operate, and they often do, with a mere quorum. A quorum majority of both houses of Congress is only 135 !!

Consider also that the US Supreme Court, centered in DC, a branch of the federal government, with justices who are appointed according to political and ideological lines – and not for proven understanding and adherence to the Constitution – has usurped the traditional “police powers” of the States, which it exercises for the health, safety (including law enforcement), welfare, education, religion, and morality of its citizens. The police powers exercised by each individual State for the benefit of its own people is the very essence of republican life. Nine unelected Supreme Court justices with life tenure – by only a vote of 5-to-4 – make major social policy for 305 million people. Political issues that are reserved to the States, such as abortion, marriage, and voter integrity laws, have been taken out of the policy arena and magically transformed into “constitutional rights.” This means, in effect, that the Court can rewrite the Constitution at will, entirely by-passing the process specifically provided for in Article V (ratification of any alteration/amendment of the Constitution by a ratification by three-fourths of the States).  Again, to think that five members of a high court can usurp lawmaking authority from the legislature (popularly-elected), can usurp powers from the States, and can transform the meaning and intent of the Constitution from the bench rather than the lawful process specifically put in place for the People themselves to define the limits of their government and we are still a republic is ludicrous.

Dispersing the legislatures among provinces would not necessarily get rid of government corruption, which is one of the biggest problems with a consolidated government. However, it would not exist on the same scale and of the same intensity that we see in DC today. Hume’s national legislature sits jointly in the 100 provincial capitals.  That means that a lobbying interest must deploy a much greater number of lobbyists and over greater distances. In addition, it would be much more difficult for representatives to coordinate with each other to buy and sell votes, as is routinely done in Congress today. With such a large republic, representatives would be more cautious and frugal in spending taxpayer money. After all, the 10,000 dispersed representatives who live in the same neighborhood with their constituents would have to look them in the eye and would have to answer to them.

Third, Hume provides a number of checks to prevent a faction from dominating the whole. If the senate rejects a proposed law, only 10 senators out of 100 are needed to veto that decision and forward the bill to the republics for consideration. Laws thought to be trivial can be sent from the senate to the ten magistrates of the republic for ratification instead of calling on the whole legislature. But only 5 out of 100 provincial representatives are needed to veto this and call for a vote of their legislature. Each (small) republic can veto legislation of another republic and force a vote on the matter by all the republics.

Should the United States be divided up into provincial republics – into a “federation of republics” – in order to provide a true republican form of government to its people?  Thomas Jefferson thought so.  George Kennan, esteemed historian and American diplomat (crafted the US policy of containment with respect to the Soviet Union) also thought so. In his autobiography, Around the Cragged Hill, Kennan argued that the United States has become simply too large for the purposes of self-government. As he argued, the central government can rule 305 million people only by imposing one-size-fits-all rules that necessarily result in a “diminished sensitivity of its laws and regulations to the particular needs, traditions, ethnic, cultural, linguistic, and the like of individual localities and communities.”  Kennan passed away in 2005.  That the lives, property, income, and fortunes of 305 million Americans should be the playthings of an oligarchy in Washington that can act by a majority in Congress of only 269 (and 135 if acting by a quorum) and that the essence of republican life – religion, morals, education, marriage, voting rights, law enforcement, and social welfare – should be decided by nine unelected Supreme Court justices is something no free, liberty-minded people should tolerate.

Of course, there is the other option – secession and the formation of individual republics, not held together in federation form. It is said that secession should and must be ruled out because it causes war and it will necessarily involve bloodshed.  But that is not necessarily true. Of course it will depend on the ambitions of the administration in Washington DC, in particular, the president.  We would hope that we should never again suffer the likes of another Abraham Lincoln. But there are many examples of states that have seceded peacefully, including a number of Baltic states from the former Soviet Union. Norway peacefully seceded from Sweden in 1905 and Singapore did so from the Malaysian federation in 1965.  Eventually, if things don’t change and freedom’s flame is close to being extinguished, secession may be the remedy to save the American experiment. Additionally, it may be the only way to save the US Constitution – by putting it in the hands of a people who will take care of it and be much more vigilante with its limited powers and its checks and balances than Americans have been.  When 11 Southern States seceded from the Union in 1860-61 and formed the Confederate States of the American, they, as a Union, established a new constitution. This would be the third constitution that Americans made for themselves, and in most respects, it was far superior to the one of 1787 – they backed out of.  It included several provisions which would have made it much more difficult for the central government to concentrate and usurp power. Had Lincoln respected the States’ right of self-determination (as proclaimed in the Declaration of Independence), we would have had the unique opportunity to compare, side-by-side, how each Union of States (North or South) fared under their constitutions.  The point is that secession gave the People (acting in State conventions) the opportunity to correct the defects in the Constitution that caused them to be oppressed by government. The question will be: when that time comes (and maybe it is already here), will we have the Will to Secede!!  Already, between 19-34% of Americans (ranked by State), now believe we would be better if States peacefully left the Union.

Donald Livingston closes his discussion of “American Republicanism” with this summary: “When a healthy cell grows too large, it divides into two cells. It is the cancerous cell that no longer knows how to stop growing. That artificial corporation, created by the individual States over two centuries ago, called the “United States” has, over time, metastasized into a cancerous growth on a federation of continental scale, sucking republican vitality out of States and local communities. The natural chemotherapy for this peculiar condition is and can only be some revived form of State interposition, nullification, or secession. If these are rejected out of hand as heresies (as our nationalist historians have taught since the late nineteenth century), then we can no longer, in good faith, describe ourselves as enjoying a republican style of government.

American secession

 

Again, I encourage everyone to read the entire book – Rethinking the American Union for the Twenty-First Century.  Aside from Donald Livingston, accomplished authors and academics Kent Masterson Brown, Dr. Thomas DiLorenzo, Dr. Marshall DeRosa, Yuri Maltsev, and Rob Williams also contributed chapters.

 

References:

Donald Livingston, ed., Rethinking the American Union for the Twenty-First Century, Pelican Publishing Company, 2013.

Poll:  One in Four of Americans Want Their State to Secede, but Why?  –   http://blogs.reuters.com/jamesrgaines/2014/09/19/one-in-four-americans-want-their-state-to-secede-from-the-u-s-but-why/

Poll: A Quarter of Americans Want Their State to Secede –   http://talkingpointsmemo.com/livewire/poll-seccession

Poll:  One in Four of Americans Want Their State to Secede –   http://dailycaller.com/2014/09/19/poll-one-in-four-americans-want-their-state-to-secede/

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TENTH AMENDMENT KEEPERS: Keepers of the Tenth!

10th Amendment

by Diane Rufino, July 19, 2016

This short article is intended to alert the reader to the importance of the Tenth Amendment and hopefully inspire him or her to join the Tenth Amendment Movement and help bring government power back to the States in those areas historically belonging to them and reserved to them under the Tenth Amendment.

About the Tenth Amendment Movement:

The Tenth Amendment has its roots in the intent of each State to retain its full sovereignty and its right of self-determination. The Tenth Amendment comes from Article II of our very first constitution, the Articles of Confederation: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  So concerned about their right of self-determination and their fear of being consumed by a centralized government under the US Constitution as drafted in 1787 at the Philadelphia Convention, that several crucial states were not willing to ratify it in convention. Virginia and New York would not ratify unless they were given assurances that amendments (for a Bill of Rights) would be added, and indeed they proposed several, including one with the language of the Tenth Amendment. To make their position firmer, they included Resumption Clauses with their Ordinances of Ratification which conditioned their ratification on the explicit right to resume all powers when they desired so. “We, the delegates of the people of Virginia do, in the name and on behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Supporters of big government (such as Abraham Lincoln, FDR, LBJ, Obama, many Supreme Court justices, and today’s progressives) have actively down-played the Tenth Amendment because it embodies States’ Rights and state power.  In the years leading up to the War of 1861 and most certainly with that war and afterwards, the political elites in government understood that the ordinary checks and balances provided in the Constitution could be co-opted and controlled, but the most critical of all the checks and balances that our Founders provided on the federal government – the tension created by sovereign states (“Dual Sovereignty,” “federalism”… or as I like to refer to it: “Titan versus Titan”) – is the one they could not, especially the Southern States. And so began the movement to destroy the concept of States’ Rights, the great movement of Thomas Jefferson.  Indeed, most Americans believe what the victor of the War of 1861 (ie, the federal government) has indoctrinated, which is that the sovereignty of the federal government, in all cases, trumps the States and that the States are powerless to oppose the government or leave the Union.  The Tenth Amendment Movement knows that this indoctrination can be reversed by education and by the willing re-assertion of the Tenth Amendment by the States.  The Tenth Amendment Movement is about educating folks and especially members and candidates for state legislatures about the compact nature of the Constitution, which essentially says that the States, as willing parties, mutually agreed to the terms of the Constitution and assented to be bound by it (forming the Union, with its “creature” – the federal government – providing certain functions on their behalf), so long as the terms were faithfully adhered.  Compacts implicate the laws of contract and to some degree the law of agency.

Unquestionably, the Constitution was created as a social compact. It had all the requisites of a contract. There were parties: thirteen States, to which were added those that similarly ratified the document in the years after 1781. There was mutuality: each State promised to give up some of its sovereignty in exchange for what the Union promised to deliver – for receiving a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade. The Constitution was created by the States and ratified by the States, each acting in Convention. It could only be amended by and between the States. And if there was any doubt about the fact that the Constitution was an agreement entered into by and between the States, Article VII states: “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”  Every one of our Founding Fathers characterized the Constitution as a compact. It was referred to as such in the Constitutional Convention in Philadelphia in 1787, in all the State Ratifying Conventions, Anti-Federalist Papers, the Federalist Papers, in the communications by Thomas Jefferson, in the Kentucky and Virginia Resolutions, written by Thomas Jefferson and James Madison (respectively), in Madison’s 1800 Report, in the several famous speeches by John C. Calhoun, and in the Ordinances of Secession.

It is critical that education by the Tenth Amendment Movement emphasize this compact nature of the Constitution and destroy the constitutional myth espoused by Lincoln to subjugate and consolidate forever the States because only then do certain remedies apply – such as nullification, interposition, and even secession itself.

The Constitution’s text and history before the War of 1861 did NOT change as a result of the surrender at Appomattox. Contracts do not textually change by the use of brute force; contracts change ONLY by the agreement of the parties. The Constitution was still a “constitution between the States” after the war as it was before. It remains so now.

Years ago, it would have been very rare to find folks who supported such critical doctrines such as Nullification and Interposition.  Even talk of States’ Rights seemed to be unpopular.  Which state would even think of daring to question the federal government?  But over the years, as the federal government has become exceedingly ambitious, arrogant, tyrannical, corrupt, reckless, and out of touch with the American people, I’ve seen things change. I’ve watched in seminars how voices of skepticism turned to support. Instead of people telling me such remedies were illegitimate, unconstitutional, and dangerous, all of a sudden, they started asking how to approach their legislators about using them against the federal government.  States are looking to nullification and interposition to finally define boundaries.  States are passing nullification measures on a wide range of issues – Obamacare, federal gun control, hemp, medical marijuana.

I hope that if you believe in the importance of this movement, as I believe, you will get involved, help educate others, and help elect like-minded representatives to your State legislature.  Whether individual freedom will be secured for “generations to come and millions yet unborn” will depend upon how the States choose to value the Tenth Amendment.  And the path that each State takes can be determined through the voice of its people.

How can you get involved?  Contact the Tenth Amendment Center, through its website.  If you have a chapter in your state, contact any of its members.  If you don’t have a chapter, either volunteer to start one or help recruit someone with the necessary time and skills to organize and run it. If you belong to an organization, such as the Tea Party or any other community organization, request that speakers be invited to talk about the Tenth Amendment, Nullification, Interposition, Judicial Activism, the Constitution and Original Intent, and other such topics.

Educate, educate, educate. The most important thing you can do is become educated!  You will find educational articles and updates on my blogsite (www.forloveofgodandcountry.com), on the Tenth Amendment Center website (http://tenthamendmentcenter.com/), and on the Abbeville Institute website (http://www.abbevilleinstitute.org/)

Finally, follow my blogsite – Tenth Amendment Keepers (https://tenthamendmentkeepers.wordpress.com) and the Facebook site of the same name.

Together, we must Keep the Tenth Amendment relevant.

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RESOLUTION PROPOSING TO ELIMINATE ARTICLE 1, SECTION 4 (“SECESSION PROHIBITED”) FROM THE NC STATE CONSTITUTION

Written and Proposed by Diane Rufino

RESOLUTION TO REMOVE ARTICLE I: SECTION 4 from the NORTH CAROLINA CONSTITUTION

This is a resolution to propose that Article I, Section 4 be removed from the NC state constitution, in part to acknowledge that the federal government unconstitutionally required the provision and in part to reassert state sovereignty

Whereas, Article I, Section 4 of the NC state constitution reads:  “Sec. 4.  Secession prohibited. This State shall ever remain a member of the American Union; the people thereof are part of the American nation; there is no right on the part of this State to secede; and all attempts, from whatever source or upon whatever pretext, to dissolve this Union or to sever this Nation, shall be resisted with the whole power of the State.”;

Whereas, in 1865, under orders from President Abraham Lincoln, North Carolina’s provisional governor, William W. Holden, called a convention to write a new constitution for the state and to submit it to the US Congress for approval as one of the preconditions for re-admission into the Union. Two requirements for re-admission were the ratification of the 13th amendment (to reject slavery) and a provision in the state constitution rejecting the right of secession;

Whereas, North Carolina was put in a seriously compromising position whereby she had no representation in the US Congress but would continue to be governed by its laws and policies.  Re-admission would allow representation;

Whereas, in order to be admitted back into the Union, the provision “secession prohibited” was included in the state constitution,

Whereas, the provision was added against the will of the people (the new constitution was rejected in a popular vote) and hence undemocratic;

Whereas, the US promises a republican form of government in every state (one of the very reasons Lincoln felt justified in waging the Civil War);

Whereas, the provision was added under coercion (and amounts to a “forced confession”);

Whereas, the provision is a badge of shame; it attaches a stigma to the state and the people of North Carolina as a result of being defeated and plundered by the North in the Civil War;

Whereas, the provision continues to punish North Carolina for daring to side with her neighbors in 1861 rather than invade and wage war against them.  [After seven states had already seceded, Secretary of War, Edwin Stanton, sent a telegram to NC Gov. Ellis telling him that North Carolina would be expected to furnish two regiments to make war on the seceded States. The governor closed his refusal with these words: “I can be no party to this wicked violation of the laws of the country, and to this war upon the liberties of a free people. You can get no troops from North Carolina.”];

Whereas, North Carolina had no intention of seceding UNTIL it became clear that she would be required to wage war against her sister southern states (the states she had more in common with), and hence was coerced into secession. [In 1861, after her neighbors had already taken action, NC sounded rejected a convention to vote on secession];

Whereas, while North Carolina voted against a convention and rejected secession, it never gave up its belief in two principles: first, that the Constitution is the supreme law of the land pursuant to the express delegations of power held therein, that those express delegations define the extent of its powers with each state holding reserve sovereign powers (tenth amendment), and that the Federal government could not force one State to fight another;

Whereas, after the Civil War was concluded, the US Constitution was never altered to redefine the relationship of the States to the federal government, and thus, the states continued to retain all its reserved rights of state sovereignty under the tenth amendment;

Whereas, the Preamble to the Bill of Rights continues to emphasize how important each of the rights and privileges expressed in the first ten amendments in the establishment of the Union, the design of government, and the harmony of our federation (united states).  [”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 insure the beneficent ends of its institution”];

Whereas, secession is an inherent right under a state’s sovereign powers, pursuant it its right of self-determination and self-preservation;

Whereas, secession is a fundamental right embodied in the Declaration of Independence [Under the Treaty of Paris, 1783, King George III acknowledged that the state of North Carolina, a sovereign state, had seceded from Great Britain];

Whereas, the right of secession being fundamental and inalienable, it can never limited by the federal government in any way, including by hiding behind the Constitution;

Whereas, the provision amounts to a forced denial of North Carolina’s fundamental right of sovereignty;

Whereas, the provision continues to punish the state for daring to remain loyal to founding principles of sovereignty;

Whereas, the provision acts as a badge of shame;

Whereas, the state of North Carolina, while recognizing all of the above as true, has no intention of abandoning its fellow states and leaving the Union.

Therefore, be it Resolved, that the People of the State of North Carolina demand that Article I, Section 4 be removed from the state constitution.

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As We Recognize the Anniversary of Roe v. Wade

Fetus (face, sucking thumb)

by Diane Rufino, January 22, 2014

On the Anniversary of Roe v. Wade, we take stock of how the high court has repeatedly twisted the Constitution to undermine family values and to negate the benefits of federalism.

More and more we hear people complain of being forced to live their lives according to dictates and mandates by the government that are morally reprehensible to them. More and more we hear entire states suggest that it would be better for their self-interest if they separated from the United States. The values of North Carolina are not the values (thank God!) of New York.  The values of South Carolina are not the values of California. And the values of Texas are not the values of New Jersey. And if the vision of our Founding Fathers, as memorialized in the federal design of government and in the Tenth Amendment, were respected today by the federal government and particularly the Supreme Court, each state would be free to embrace the values that their people chose. We would have 50 different “communities,” each offering their citizens the opportunity to live as they see fit and as would most effectively promote their “pursuit of happiness.”  So, if a family in New York decided that the values in that state were counter-productive to the raising and education of their children, for example, they might have the opportunity to move to another state where conditions and values more closely suit the philosophy that best defines their life.

How did we get this “one-size-fits-all” approach to the several states?  There is only one authority that has the power to do so – the federal government.  The government, through its commandeering of the Court system and its exclusive power to define the provisions and powers listed in the Constitution, has broken down the boundaries that allow each state to remain unique.  The same government that embraces diversity in human beings denies diversity in the individual states. Without a doubt, the Court has used this power to its fullest advantage, not only to centralize more power in its three branches and to weaken the States, but also to engineer a new social order. The new social order has signaled a decline in America. The “one-size-fits-all” approach has caused Americans great frustration because it offers them no alternatives.  In nearly every aspect of their lives, aside from physical address and scenery, people are being told they have only ONE WAY to live their lives. They have to conform to ONE WAY of thinking. Under the guise of tolerance, they are FORCED to embrace policies that offend rights of conscience and offend traditional notions of decency and conduct.

On this 41st anniversary of Roe v. Wade, I thought we might take a look at this case and see how the Court furthered its goal to re-engineer American society and to re-prioritize our national values.

On January 22, 1973, seven non-elected members of the US Supreme Court handed down the Roe v. Wade decision – a decision that rivals, in utter disgust, the holding of Dred Scott.  Both cases determine (or should I say, undermine) the worth of a class of human beings. But aside from that, the question is this:  Was the issue at stake one for the federal government to decide or one for the States?

The question before the Court was whether the US Constitution embraces the right of a woman to have an abortion. Norma McCorvey, known in court documents as Jane ROE, was a single woman who became pregnant and then sought to have an abortion. Texas law at the time (which dated back to 1854) did not allow a woman to have an abortion and terminate a pregnancy, unless that pregnancy threatened the life of the mother. She sued in order to prevent Dallas Attorney General Henry Wade from enforcing that law and hopefully to invalidate the law. Well, that should be clarified.  She didn’t want to sue.  It was only when two lawyers representing a Womans’ Rights activist group approached her and convinced her to sue and challenge the abortion statute that she agreed to be “their girl.”  The ambitious lawyers argued that McCorvey’s ability to control her fertility should be recognized and protected by the Bill of Rights (thereby safe from government action to violate it, and through the 14th amendment, safe from any state action as well).  In other words, they asked the Court to recognize a woman’s right to control her fertility, even after a child has been created.

Why didn’t anyone argue that she already has the power and the right to control her fertility. It’s called “consent or non-consent to sexual intercourse.”  The power lies with her.  She holds the power to have children – thanks to the Laws of Nature.  And she also holds the power as to when she will have those children.  If she decides to engage in sexual activity with protection and that protection fails, she has the option of immediately addressing the situation.  After all, a fertilized egg doesn’t immediately begin its program to create life. Even after 12 hours after conception, the fertilized egg cell still remains a single cell.  Only after approximately 30 hours does it finally begin to divide from one cell into 2 cells.  And then another 15 or so hours after that, it divides again, to yield four cells.  At the end of three days, the conception event is merely a ball of 16 cells. Does that group of 16 cells establish “life”?   (That, fortunately or unfortunately, is not the question of this piece).

Issues of marriage and family are ones rightfully reserved to the States. It has always been so.  The federal government knows this and the justices of the Supreme Court know this too.  But by finding a new provision in the Bill of Rights – one not expressly articulated – the Court was able to make universal policy on abortion. That “invisible” provision is the right to Privacy.  Has anyone read the Bill of Rights lately?  Has anyone found that one listed?  I think if our Founders wanted the bundle of rights embraced by privacy in general, that amendment would have been one of those included.  The Supreme Court rejected the argument that the right to an abortion is one embraced by the Ninth Amendment.  As mentioned above, a woman has always had the right to control her fertility. It’s called consent and non-consent.  That’s why abortion laws have always contained exceptions for cases when the woman has been raped. The right to an abortion is a distinct right.

The bigger issue in Roe v. Wade, as is clear from the decision and later comments by Justice Sandra Day O’Connor and Justice Ruth Bader Ginsburg, was the ability of women to compete equally in the workforce.  Women cannot compete equally if they are continually “held back” by an unwanted pregnancy. That was the issue at the heart of Roe v. Wade – not the definition of life or the right to life. The particulars of how they got that issue to the Court is what makes this case so very disturbing.  Womens’ Rights activists used the issue at stake in the case to sacrifice the lives of unborn children to advance their agenda….  The same agenda that the government also felt compelled to promote.

Here are some of the arguments that the supporters of Roe advocated as being vital to a Woman’s Right to Terminate a Pregnancy:  They said the right to an abortion helps to preserve women’s rights, her personal freedom, and her privacy. A denial of the right, they argued, would be condemn women to compulsory motherhood and ‘involuntary servitude’ in violation of the Thirteenth Amendment.

McCorvey was single at the time of her pregnancy. She was a drug abuser and had left her husband (and two children). After her third pregnancy (at issue in the lawsuit), which ended in the child’s birth (because of the length of the case), she gave up the child for adoption and went on to become a lesbian for awhile.  It’s nice that such people who have such a problem conforming their conduct are the ones that dominate our courts and are responsible for the social engineering that has defined the new America.  Where is the notion that laws are supposed to promote good and productive behavior and discourage bad and unproductive behavior?

How sad that our nation’s highest court was able to “stretch” and re-define the US Constitution to find rights for women to terminate an unwanted pregnancy but continues to refuse to find the same latitude in the Constitution to find that an unborn child has any rights at all.  (Sure the decision holds that the right to an abortion is not absolute and it has to be balanced against the State’s countervailing interests in preserving the health of the woman and in protecting the “potential” life of the unborn child, but for all practical purposes and in light of subsequent cases that emphatically state that obstacles to a woman’s right to an abortion on demand are unconstitutional, the right to an abortion is absolute).  How sad that we have to read accounts of fully-formed babies being aborted and terminated. (that is, KILLED). Termination is what you do to an employee or a contract.  Murder and killing is what you do to a living human being that intentionally deprives it of its life.  How sad that we have to be a country divided among people who value life all life and those who value life except that which grows inside a woman that happens to burden her ambitions or complicate her life.

As it stands today, every woman in the United States has the legal right to obtain an abortion in all 50 states, through all nine months of pregnancy, for virtually any reason at all.  After all, the autonomous decision to have such is built into the Constitution.  And the 14th Amendment incorporates the rights as against the States as well (even though the 14thAmendment requires each incorporated right to be one that is historically rooted in our American notion of ordered liberty).  All of this is the legacy of Roe v. Wade.  As John T. Noonan, senior circuit judge on the Ninth Circuit Court of Appeals, wrote: “Roe v. Wademay stand as the most radical decision ever issued by the Supreme Court.”

If the Court had only the backbone and conviction to respect the Tenth Amendment and the issues that traditionally belong to the individual states, the issue of abortion could have been decided by the individual states.  Chances are that New York and other liberal states would embrace such a right (at the expense of the helpless unborn) while the states populated by people who respect all life would likely take a different approach….  They might likely reserve abortion in instances when the life of the mother is certainly at serious risk, or they might have programs of adoption for those who are unwilling to keep the child they give birth to, or they might have a robust Church communities that develop programs to care for the children of unwanted pregnancies, or maybe, just maybe, hey might have aggressive public school programs and social programs that EMPHASIZE and promote abstinence.

The point is that the people of each state have a right – a reserved right – to determine issues of social policy within their borders. Each state has the right to guide and determine the kind of citizen it would like to live within its borders (that’s why education is so important as an state initiative) and the kinds of communities (absent any glaring true constitutional violations) to support them.

So, on this 41st anniversary of Roe v. Wade, we have to ponder the consequences of the decision.  We have legally declared that a class of human beings has no legal rights (as Dred Scott did to African-Americans) and we have condemned millions to torture and death, simply for the opportunity for women to compete equally with men in the workforce.  As George Bush once said: “The fingers and toes and beating hearts that we can see on an unborn child’s ultrasound come with something that we cannot see… a soul.”  We have to be disgusted at both the decision itself and the legal wrangling that our highest court used to usurp state authority and further create the “one-size-fits-all” degenerate social society that we have now.

A Review of Federalism: The Significance of James Madison’s Report of 1800

States Rights - States Have Rights Too

A Review of Federalism:  The significance of James Madison’s Report of 1800 in Transforming the 10th Amendment into the Predominant Provision Recognized by the Courts in Protecting Federalism 
by Diane Rufino, December 8, 2013

**  This article is taken almost exclusively from a 2005 paper by Professor Kurt Lash, Univ. of Illinois School of Law), published in the Loyola School of Law Report

In a speech opposing the chartering of a national bank in 1791, James Madison argued that only an unduly broad interpretation of federal power would allow Congress to create the Bank of the United States. He would have to remind those in power, which were the Federalists, of the great lengths they went through to create a Constitution of limited powers and to satisfy the States that they would not be giving up any sovereign power that they did not agree to.  Indeed, in their efforts to secure votes in favor of the Constitution, Federalists had assured the State Ratifying Conventions that the Constitution would not be construed in such an expansive manner, and the ratifying states themselves had issued declarations and proposed amendments which established their understanding that the Constitution would not be so construed.  The adoption of the pending Ninth and Tenth Amendments would make this assumed limited construction of federal power an express constitutional mandate.  In that speech, Madison argued:

The explanations in the State Ratifying Conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. (At this point, he read several passages from the debates of the Pennsylvania, Virginia and North Carolina Ratifying Conventions), showing the grounds on which the Constitution had been vindicated by its principal advocates against a dangerous latitude of its powers, charged on it by its opponents.)

     The explanatory declarations and amendments accompanying the ratifications of the several states formed a striking evidence wearing the same complexion.

     And these explanatory (and restrictive) amendments, proposed by Congress itself, should be good authority along with the debates in the State Conventions; all these renunciations of power proceeded on a rule of construction excluding the latitude (the scope) now contended for. These explanations are the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. (He then read several of the articles proposed, remarking particularly on the 11th and 12th, which would eventually become our 9th and 10th amendments).  The eleventh amendment was intended to guard against a latitude of interpretation while the twelfth would excluding every source of power not within the Constitution itself.

     With all this evidence of the sense in which the Constitution was understood and adopted, the bill should not pass. If the bill should pass, then it will be said that the adoption of the Constitution was brought about by one set of arguments and but it is administered under another set and this will give the People cause for concern. 

     If the power were in the Constitution, Congress could exercise it, but it is not and therefore the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation that levels all the barriers which limit the powers of the general government and protect those of the state governments.     

      In conclusion, it appears on the whole, that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristic of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the public; was condemned by the apparent intention of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and I hope it will receive its final condemnation, by the vote of this house.”

A few months after Madison gave this speech, Virginia voted in favor of the last 10 of the 12 proposed amendments and the Bill of Rights became part of the Constitution.  This Bill, like the Constitution itself, begins with a preamble: 

THE Conventions of a number of the States, having at the time of their adopting the Constitution, 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 institutions.

As suggested by the Preamble, some amendments are declaratory clauses while others are restrictive clauses. A restrictive modifying clause is an adjective clause that is essential to the meaning of a sentence because it limits the thing it refers to.  A declaratory clause, on the other hand, merely re-states or re-emphasizes a particular principle.  With that in mind, the Ninth Amendment acts as a restrictive clause while the Tenth stands as a declaration of principle.  The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The Tenth Amendment reads: “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.”  Specifically, as Madison wrote and as he articulated in his speech opposing the chartering of a National Bank, the Ninth Amendment was submitted by the States to “guard against a latitude of construction,” while the Tenth would “exclude every power not within the Constitution itself.”  As a restrictive clause, the Ninth preserves the principle enshrined in the Tenth.  Without such a rule preventing “misconstruction,” of the Constitution, the declaratory Tenth Amendment risks becoming an empty promise.  Together, however, the two amendments prevent the “misconstruction or abuse” of federal power. This was the express intent of the States in adopting the Constitution. Nothing could be clearer. And again, if this message wasn’t clear, the preamble to the Bill of Rights provided a bold, unambiguous, statement of the like.

The proper construction of federal power soon became an issue during the debate over the first Bank of the United States.  In his opinion opposing the creation of the Bank, Thomas Jefferson argued that the “latitude of construction” adopted by the Bank’s proponents would destroy the principle of enumerated powers declared in the Tenth Amendment.  “I consider the foundation of the Constitution as laid on this ground:  that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

Echoing Jefferson’s concerns, Attorney General Edmund Randolph concluded:  “A similar construction on every specified federal power, will stretch the arm of Congress into the whole circle of state legislation. . . . Let it be propounded as an eternal question to those who build new powers on this clause, whether the latitude of construction which they arrogate will not terminate in an unlimited power in Congress?”

Both Jefferson and Randolph read the Tenth Amendment as confirming the establishment of a federal government of enumerated powers, with all nondelegated powers reserved to the states. Unduly broad constructions of enumerated federal power threatened to undermine this arrangement by creating, in essence, a government of unlimited power.  Accordingly, Randolph and Jefferson advocated a rule of strict construction in order to preserve the principle announced by the Tenth Amendment.  The rule preserved the principle.

Madison, of course, read the Ninth Amendment to express just such a rule, and early constitutional commentators agreed.  In the very first Supreme Court opinion discussing the Ninth Amendment, Justice Joseph Story followed the Madisonian reading of the Ninth and used it to support a limited construction of federal power.  In the 1820 case Houston v. Moore, Justice Story wrote that federal power to discipline the militia should not be read as exclusive of the concurrent power of individual states to establish their own rules of militia discipline, so long as those rules did not conflict with any federal statute.  Story declared that, “In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning.”

Madison and Story were not alone in their reading of the Ninth as a federalist rule of interpretation.  In his 1803 View of the Constitution, St. George Tucker likewise presented the Ninth Amendment as supporting a federalist rule of strict construction of federal power, as did constitutional commentator John Taylor. [Tucker wrote: “As a federal compact, it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question (citing the Tenth Amendment).  As a social compact, it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government (citing the Ninth and Tenth Amendments).”  John Taylor wrote, with respect to the Ninth and Tenth Amendments: “The precision of these expressions is happily contrived to defeat a construction, by which the origin of the union, or the sovereignty of the states, could be rendered at all doubtful.”]

Unlike Madison, Jefferson and Randolph, who believed that preserving the Tenth required the addition of a rule of construction, St. George Tucker believed that the Tenth Amendment itself expressed a rule of strict construction. According to Tucker, under the Tenth Amendment, the Constitution “is to be construed strictly, in all cases where the antecedent rights of state may be drawn in question.”  This reading of the Tenth Amendment seems somewhat awkward.  The text of the Tenth simply declares that Congress is granted only those powers enumerated in the Constitution.  The text says nothing about how broadly those delegated powers are to be construed.  Nevertheless, after 1800 and for the next one hundred and fifty years, courts and commentators cited both the Ninth and Tenth Amendments as expressing rules of strict construction of federal power.

This fact may surprise readers used to reading the Ninth and Tenth Amendments in opposition to one another or in reading them as having no real force of constitutional construction.  Since Griswold v. Connecticut, the Court has often read the Ninth Amendment as support for its judicial invalidation of state laws, while the Tenth is most commonly associated with “states’ rights.”  Historically, however, the two amendments were read in pari materia, meaning “acting on the same matter.”  They both represented a limitation on the power of the federal government to interfere with the states. As late as 1948, the Supreme Court continued to apply both amendments as twin guardians of federalism. In Bute v. Illinois, the Supreme Court considered whether allowing a defendant in a non-capital criminal prosecution to represent himself, without inquiring into whether he desired or could afford an attorney, violated his rights under the Fourteenth Amendment.  Because the Sixth Amendment required such an inquiry in federal court, the issue was whether this rule was incorporated against the states.  In a 5-4 decision, Justice Harold Burton rejected the claim and provided an extended analysis of the Ninth and Tenth Amendments and their roles in interpreting the scope of the Fourteenth Amendment’s Due Process Clause. According to Justice Burton:

One of the major contributions to the science of government that was made by the Constitution of the United States was its division of powers between the states and the Federal Government. The compromise between state rights and those of a central government was fully considered in securing the ratification of the Constitution in 1787 and 1788.  It was emphasized in the “Bill of Rights,” ratified in 1791.  In the ten Amendments constituting such Bill, additional restrictions were placed upon the Federal Government and particularly upon procedure in the federal courts.  None were placed upon the states.  On the contrary, the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments.  This point of view is material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states, including Illinois. In our opinion this limitation is descriptive of a broad regulatory power over each state and not of a major transfer by the states to the United States of the primary and pre-existing power of the states over court procedures in state criminal cases.”

In Bute, Justice Burton linked the Ninth and Tenth Amendments to the need to preserve “Home Rule,” or, as earlier courts had phrased it, the right of a state “to determine for itself its own political machinery and its own domestic policies.”  Preserving that right required a rule of construction.  The Court in Bute applied such a rule, noting that the principles underlying the Ninth and Tenth Amendments are “material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states.”

In limiting the scope of the Fourteenth Amendment, the Court’s decision in Bute echoes similar reasoning in the 2000 United States v. Morrison decision, which narrowly interpreted the reach of Congress’s Section 5 powers under the Fourteenth Amendment in order to preserve state autonomy. Specifically, the Court cited the Tenth Amendment in support of its limited reading of federal power.  By the time the Court decided Morrison, however, the Ninth Amendment had already disappeared from the judicial debate (and perhaps civil debate) on federal powers.  In the majority decision authored by Chief Justice William Rehnquist, it was the Tenth Amendment alone that provided the basis for the Court’s rule of strict construction.

This disappearance of the Ninth presents us with a mystery and should give us cause for concern.  Given that it is the Ninth, not the Tenth, which literally expresses a rule of construction, how did the Tenth Amendment come to share an equal role with the Ninth as a rule of limited construction of federal power?

More directly, how did the Tenth come to replace the Ninth Amendment as a limiting rule of construction?  Madison’s public description of the Ninth and Tenth Amendments compounds this mystery.  As Madison drafted both amendments, participated in the Congressional debates, and is considered the “Father of the Constitution, one would think Madison’s description of the Ninth as the relevant rule of construction would carry particular weight.

Ironically, it appears that Madison himself may have played a key, if unintentional, role in refocusing attention away from the Ninth and onto the Tenth Amendment as the textual basis for a rule of strict construction.  In one of the most influential documents Madison ever produced, The Report on the Alien and Sedition Acts, (also known asMadison’s “Report of 1800”), Madison presented the Tenth Amendment as the central constitutional text for constraining the interpretation of federal power.  Although Madison’s reliance on the Tenth Amendment in his Report corresponds to his interpretation of the Ninth and Tenth Amendments in his speech on the Bank of the United States, his “Report of 1800” took on a life of its own – as would the Tenth Amendment.

The Tenth Amendment would undergo this transformation in light of the passage of the Alien and Sedition Acts.  This transformation would also serve to remind states of their obligation when faced with unconstitutional federal legislation. (The terms “Nullification” and “Interposition” would be coined at this time to define that obligation).

In the aftermath of the so-called XYZ Affair, in which French officials demanded bribes from an American peace delegation, and in the midst of heightening tensions with France, Congress enacted the Alien and Sedition Acts (which were actually a series of four statutes: the Alien Act, the Alien Enemies Act, the Naturalization Act, and the Sedition Act).  The Sedition Act made the common law offense of seditious libel a federal crime, and inflaming an already politically charged atmosphere, Federalist judges enforced the Act against critics of the Adams Administration. Defenders of the Sedition Act came dangerously close to claiming that Congress had an unenumerated power to enforce the common law. The author of the “Report of the Minority on the Virginia Resolutions,” commonly believed to be John Marshall, argued that there was a “common or unwritten law which pervades all America, and which declares libels against government to be a punishable offence.”  According to the Report, “to contend that there does not exist a power to punish writings coming within the description of this law, would be to assert the inability of our nation to preserve its own peace.”

As far as seditious libel and free speech were concerned, according to John Marshall, the Federalists, and even President John Adams himself, the freedom guaranteed by the First Amendment did not extend to such “licentious” acts as libeling the government.

By appearing to embrace the unwritten power to enforce the common law, the defenders of the Sedition Act seemed to reject the principle of enumerated federal power.  Although the Ninth Amendment guarded against explansive constructions of delegated powers, it was the Tenth Amendment which declared that all non-enumerated powers are reserved to the States. Accordingly, James Madison and Thomas Jefferson raised the hue and cry that Congress had transgressed the boundaries of federal power established by the Tenth Amendment. They communicated aggressively during this time and contemplated what the proper response would be when the federal government exceeds its constitutional limitations and imposes a palpable violation on the people.  In his Kentucky Resolutions of 1798 (Nov. 10, 1798), Thomas Jefferson wrote:

That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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”; and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states or to the people.”

In his Virginia Resolutions of 1798, Madison called on the states to join with Virginia and Kentucky in declaring, “That the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each, for cooperating with this state, in maintaining unimpaired the authorities, rights, and liberties, reserved to the states respectively, or to the people.”  He would go on to explain that the proper measure would be Interposition, which is the right of the states to “interpose” – or intervene – between the federal government and the people of the state to protect their rights and liberties and preserve the proper balance of government.

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

A year later, Thomas Jefferson authored another set of resolutions so that Kentucky could re-affirm its position.  In the Kentucky Resolutions of 1799, Jefferson wrote:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said Alien and Sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal…

Madison defended the positions taken in the Virginia Resolutions in his Report on the Alien and Sedition Acts (aka, “Madison’s Report of 1800”)  In his Report, Madison further explained that Congress’s attempt to exercise unenumerated common law powers violated the constitutional principle that “powers not given to the government, were withheld from it,” and that “if any doubt could have existed on this subject, under the original text of the Constitution, it is removed as far as words could remove it, by the 12th amendment, now a part of the Constitution (as the Tenth Amendment), which expressly declares, “that 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.”

Ultimately, the Democratic-Republican Party of Thomas Jefferson and James Madison defeated the Federalists in the election of 1800, due in no small part to popular reaction against the Alien and Sedition Acts.  Madison’s celebrated “Report of 1800,” which Spencer Roane referred to as the Magna Charta of the Republicans, became a foundational document for 19th century advocates of states’ rights.  The Report was so influential that Madison’s Tenth Amendment-based argument against the Acts had the effect of eclipsing the Ninth as the core constitutional provision requiring the strict construction of federal power.

It is difficult to overstate the influence of Madison’s Report of 1800 among states’ rights theorists in the decades between Jefferson’s election and the Civil War.  St. George Tucker referred to Madison’s Report numerous times in his 1803 constitutional treatise, A View of the Constitution of the United States, repeating in particular Madison’s claim that Congress had exceeded the bounds established by the Tenth Amendment. When Jonathan Elliot compiled the materials for his great compilation (1836), The Debates in the Several State Conventions on the Adoption of the Federal Constitution, among the few post-adoption sources that he added was “The Report on the Virginia Resolutions, by Mr. Madison.”  It was not unusual for nineteenth century courts to refer to what was known as Madison’s “Celebrated Report” in discussing the scope of federal law.

In fact, courts in later decades viewed the struggle over the Alien and Sedition Acts and the election of 1800 as a referendum on the proper interpretation of the Constitution.  Writing in the 1860’s, Judge Bell of the Texas Supreme Court described the event as a titanic struggle over an unduly expansive interpretation of federal power:

I take it for granted that we will not . . . go back to that latitude of construction, and to the reasoning by which the federalists of 1798 claimed for the congress of the United States the power to exercise a censorship over the press, as a means necessary and proper to carry into effect the power to suppress insurrections. We have been accustomed to read, with the interest that attaches to the drama, the history of the great struggle which elevated Mr. Jefferson to the presidency. It is the first conspicuous landmark in the history of the government of the United States under the constitution. It has always been claimed that the republican party performed a patriotic service in resisting the tendency to a rapid consolidation of powers in the general government, and that their illustrious leader was the faithful sentinel who saw the danger to the constitution, and met it with a noble devotion to the cause of liberty. . . . and in every step which has been made towards a strict construction of the constitution, the people have hailed the triumph of sound principles and felt renewed confidence in the stability of republican institutions.”

States’ rights advocates in particular relied on Madison’s Report of 1800 as a critical guide to state autonomy and proper interpretation of the Constitution.  Virginia Chief Judge Spencer Roane cited Madison’s Report in support of his contention that the Supreme Court had no authority to reverse the decision of Virginia’s highest court.  When Chief Justice John Marshall upheld the Second Bank of the United States in McCulloch v. Maryland(1819), Roane published a series of essays critical of the McCulloch decision in the Richmond Enquirer under the pseudonym “Hampden.” Repeatedly referring to the odious precedent of the Alien and Sedition Acts and Madison’s “celebrated Report” of 1800, Roane argued that Congress and the Supreme Court had once again invaded the reserved powers of the States:

It has been our happiness to believe, that in the partition of powers between the general and state governments, the former possessed only such as were expressly granted . . . while all residuary powers were retained by the latter. . . . This, it is believed, was done by the constitution, in its original shape; but such were the natural fears and jealousies of our citizens, in relation to this all important subject, that it was deemed necessary to quiet those fears, by the 10th amendment to the Constitution.”

Tying the hated Sedition Acts to Marshall’s opinion in McCulloch, Roane argued that “the latitude of construction now favored by the Supreme Court, is precisely that which brought the memorable Sedition Act into our code.”  In a famous paragraph, Roane declared, “that man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power, and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.”

Consider this question:  Has the Supreme Court’s application of the Tenth Amendment rendered it particularly vulnerable to criticism?   In 1941, in a case defining the boundaries of the federal Commerce Clause, United States v. Darby, the Supreme Court declared that it would uphold federal regulation of purely intrastate commerce if Congress reasonably concluded that the activity in question affected interstate commerce.  In doing so, the Court gave the federal government great latitude in defining the scope of its powers.  The Court rejected the idea that the Tenth Amendment required strict construction of federal power. According to Justice Harlan Stone, who authored the majority opinion:

Our conclusion is unaffected by the Tenth Amendment . . . . The amendment states but a truism that all is retained which has not been surrendered.  There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.  From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”

Indeed, even at the moment of its adoption, Madison acknowledged that the Tenth Amendment was unnecessary and the Clause was criticized in the State Ratification Conventions as having no “real effect.”  As one can imagine, this disclosure is quite popular with those most interested in an energetic and concentrated federal government and those interested in restricting federal power.

Despite these criticisms, however, current federal jurisprudence (current rule of constitutional construction), holds that the Tenth Amendment has both a textual basis and historic application.  The accidents of history that led to the rise of the Tenth Amendment and the fall of the Ninth have resulted in the invocation of the right principles in the wrong context.  Originally, the Ninth and Tenth Amendments were meant to work together: The Tenth declaring the principle of reserved non-enumerated power, and the Ninth ensuring that the powers reserved to the states would not become a null set through the overly broad construction of enumerated federal authority.  Both principles were thought necessary in order to guarantee the people’s retained right to local self-government.  In other words, without the Ninth Amendment, the Tenth Amendment does indeed become a mere truism.

Understanding the proper source of this rule of construction and how it became associated with the Tenth Amendment vindicates the jurisprudence of the Tenth even as it refocuses attention back to the Ninth Amendment.  Absent this refocusing, the Tenth Amendment and its attendant federalist jurisprudence remains vulnerable to criticism and, ultimately, reversal.

In other words, understanding the history of the Ninth and Tenth Amendments is necessary, if only to save the Tenth Amendment from itself.  A renewed appreciation of the textual (contextual) roots of federalism seems particularly relevant as both sides of the political spectrum now have come to embrace the value of state autonomy and as the doctrine of Nullification becomes more popular.

Refocusing the rule of construction back to the Ninth Amendment does not reduce the Tenth to a mere truism. The Tenth Amendment not only denies unenumerated powers to the federal government, it also forbids placing any unenumerated restrictions on the states.  According to the text, “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.”  Just as the first portion of the Tenth Amendment limits the powers of the federal government to no more than those enumerated in the text, the second portion limits restrictions on the states to no more than those enumerated in the text; all other powers are reserved to the states or to the people.

The Tenth Amendment, just as the Ninth Amendment, establishes “further declaratory and restrictive clauses, in order to prevent misconstruction or abuse of its (federal government) powers.”  (Preamble to the Bill of Rights).  Not only is the federal government further limited in its powers under Constitution, but it is expressly limited from stepping into the sphere of reserved rights held by the People and the States.  

Restoring the Tenth Amendment to its proper place in the arena of constitutional interpretation does nothing to endanger federalism.  Rather, it places federalism – as well as liberty, and the guarantees in the Declaration of Independence – on firmer ground.

The key, clearly, to restoring the proper balance of government power and restoring power to the parties from which it rightfully originated and to which it rightfully belongs is to return to the critical jurisprudence of original intent and strict construction. Unfortunately, big government proponents and liberal law school professors like to demonize judges who adopt this approach and indoctrinate both law school students and low-information and uneducated Americans. They like to declare that the US Constitution is outdated and incapable of addressing the issues of today’s America and in direct contradiction and willful disregard of the men who wrote and defined the document and the duly-assembled institutions that debated and ratified it, they classify it incorrectly as “a living breathing document.”  The longer we allow the indoctrination to take place, the more firmly the notion will become entrenched with a people who no longer knows what their rights are or how, procedurally and ideologically, they are secured and protected.

The task we face is EDUCATION, EDUCATION, and more EDUCATION.  We need to take on the liberals and progressives at every turn and debate them on the merits, with the ultimate goal being the preservation of a government system so properly divided among sovereigns and so richly pitted with reliable checks and balances that the rights and liberties of mankind, so forcibly asserted and fiercely defended throughout the ages, will be secured for the ages and will not begin that dark descent into oppression that robs them of that divine spark and that exercise in freedom that moves civilization forward and makes us a more successful and exemplary nation.

Reference:  The article above is almost exclusively comprised of Professor Kurt Lash’s 2005 Loyola Law School article on James Madison’s Report of 1800:

Kurt T. Lash, “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment,” Loyola School of Law, Legal Studies Paper No. 2005-30, November 2005.  [Kurt T. Lash is a professor at the University of Illinois School of Law]