The Ruthless Truth blog

by Michael Boldin

For decades, using a tortured definition of “interstate commerce,” Congress has claimed the authority to regulate, control, ban, or mandate virtually everything – from wheat grown on one’s own land for personal consumption, to weed grown in an individual’s own home for the same purpose, to guns manufactured, sold and kept in state boundaries.

Today, Dave Freudenthal, the Democrat Governor of Wyoming Governor stood up and gave a resounding NO to this by signing into law House Bill 95 (HB0095), the Firearms Freedom Act. Wyoming joins Montana, Tennessee and Utah as the fourth state to make the act law.

The bill states:

A personal firearm, a firearm action or receiver, a firearm accessory, or ammunition that is manufactured commercially or privately in the state to be used or sold within the state is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce.

The bill easily passed the House and the Senate passed it unanimously, by a vote of 30-0.

THE COMMERCE CLAUSE

If, like any legal document, the words of the Constitution (and its amendments) mean today just what they meant when it was signed, then we must understand the original meaning of words in Article I, Section 8, Clause 3 of the Constitution – the “Interstate Commerce Clause.” It give Congress the power to:

“regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

According to Constitutional scholar Randy Barnett, the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose. The original meaning of “to regulate” generally meant “to make regular” -that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make “prohibitory regulations.” “Among the several States” meant between persons of one state and another.

According to Constitutional scholar Rob Natelson, the commerce clause gave Congress power to regulate interstate commerce — not any “matters that have significant spillover effects across state lines.” The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the Federal government regulate any activity with interstate spillover. In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states.

Not included in this power to regulate commerce “across state lines” is the authority to regulate activites that are non-economic or solely INTRAstate, which the language of the Firearms Freedom Act addresses.

NULLIFICATION

Laws of the federal government are to be supreme in all matters pursuant to the delegated powers of U.S. Constitution.  When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are “unathoritative, void, and of no force” from the outset.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state’s citizens.

Implied in any nullification legislation is enforcement of the state law. In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

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.

HB95 includes this principle, and imposes penalties on federal agents for violations of the law:

Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United States government upon a personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a felony and, upon conviction, shall be subject to imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both.

RECLAIMING INTRASTATE COMMERCE

A long train of improper judicial precedents and federal usurpations of power under Article 1, Section 8, Clause 3 are not supreme simply due to the fact they are outside the scope of power delegated to the federal government.

By signing HB95, Gov. Freudenthal places Wyoming in a position of proper authority while pressing the issue of state supremacy back into the public sphere.

In 1942 no state intervened or challenged the federal claim to regulate non-commercial intrastate activity in Wickard v Filburn. This landmark court decision claimed to give the federal government the power, under the guise of “interstate commerce,” to control the growing of a plant in one’s own backyard – and consuming it at home

This ruling marked a reversal of precedent set over the course of more than 150 years where the federal courts had ruled against such loose interpretation. The federal government now claims authority – under the commerce clause – to control or ban what you grow and consume at home, to tell you how big your toilet can be, and quite possibly, whether or not you’re able to decide to not purchase a health insurance plan. Such powers are not what the founders and ratifiers gave Congress in the Constitution.

Today, Gov. Freudenthal helped draw a line that should have been drawn by the states in 1942.

CLICK HERE to view the Tenth Amendment Center’s Legislative Tracking Page for Current Nullification Efforts

Michael Boldin [send him email] is the founder of the Tenth Amendment Center

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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In 1798 Thomas Jefferson secretly drafted another declaration few people know about…

by Derek Sheriff

Most Americans know that Thomas Jefferson was the principal author of “The Declaration of Independence”, the most important of all our founding documents.

Yet few of them have even heard of another document that I would say might be the second most important declaration he ever wrote: The Kentucky Resolutions of 1798. He drafted them secretly while he was serving as vice president. It was written in response to the hated Alien and Sedition Acts which were passed under the Adams administration during an undeclared war with France.

The acts authorized the president to deport any resident alien considered dangerous to the peace and safety of the United States, to apprehend and deport resident aliens if their home countries were at war with the United States, and criminalized any speech which might defame Congress, the President, or bring either of them into contempt or disrepute. You could compare it to the Patriot Act, but really it was much worse. Either way, The Alien and Sedition Acts were probably Thomas Jefferson’s worst nightmare.

Some people are surprised to learn that in response to these acts, Jefferson did not hold up the First Amendment in protest. Rather he invoked the Tenth Amendment, which states 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.”

Essentially, he argued that by passing and enforcing the Alien and Sedition Acts, the federal government had over stepped its bounds and was exercising powers which belonged to the states.

In other words, the Alien and Sedition Acts were acts of usurpation.

James Madison corresponded with Jefferson about these issues, (they suspected that their mail was being secretly opened and read by the way). As a result of their correspondence, James Madison penned another series of resolutions against the Alien and Sedition Acts, which were passed by the Virginia legislature in 1798 and 1799.

As important as these resolutions were in objecting to the unconstitutional Alien and Sedition Acts, their lasting importance was due to the the fact that they were strong statements in defense of federalism, the sovereignty of the people of the several states, and the authority of state governments to check or resist the tyrannical proclivities of the federal government.

Jefferson began the Kentucky Resolutions by explaining the exact nature of the relationship between the new federal, or general government and the states that predated it:

“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

These resolutions, authored by Jefferson and Madison, and passed by the Kentucky and Virginia Legislatures, came to be known as the Kentucky and Virginia Resolutions, or Resolves, of 1798. The ideas they expressed were later referred to as “The Principles of ‘98″.

Over time, “The Principles of ’98″ would be invoked by many states, for a variety of issues. States invoked them to oppose everything from unconstitutional embargoes in 1807-1809, to the misuse of their militias during The War of 1812, the Second Bank of the United States in 1825, and the Fugitive Slave Acts of 1850.

Even today, The Principles of ‘98 have been rediscovered and are being used by both Republicans and Democrats to address unconstitutional federal laws such as federal firearms regulations, Cap and Trade, REAL ID, Obamacare and Congressional “commerce clause” abuse in general.

The Principles of ‘98, as expressed in Thomas Jefferson’s other declaration, The Kentucky Resolutions, are non-partisan in nature and are just as relevant today in 2010 as they were in 1798. All we have to do is rediscover and reassert them! Start talking to your state legislators about the Principles of ‘98 today!

CLICK HERE – To read or listen to an audio presentation of Thomas Jefferson’s OTHER declaration — the Kentucky Resolutions of 1798!

CLICK HERE – To read more about how the Principles of ‘98 were used by states throughout American history.

This article was originally featured on the website of United We Stand For Americans.

Derek J. Sheriff [send him email] is the state chapter coordinator for the Arizona Tenth Amendment Center. His blog and podcast “Principles of ‘98″ can be found at www.PrinciplesOfNinetyEight.Com

Copyright 2010 by the author, Derek J. Sheriff.

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by: Steve Palmer

J. Robert Smith writes A Curious Dalliance with Nullification at American Thinker today.  By using three citations from a single page in a single book, he determines that the idea of nullification is mistaken and that those of us who support nullification as a remedy to federal overreach are misguided.  Here are the the article and the comments.  Personally, I found many of the comments to be more enlightening than the article itself.

Mr. Smith’s main points against nullification seem to be:

1.) No support for nullification can be found in the Constitution or Declaration of Independence.

2.) According to one author, Madison said that the Virginia Resolution of 1798 was misinterpreted by people who claimed that it supports nullification.

3.) Nullification is potentially dangerous, as states may also try to use it to nullify “good” laws.

Mr. Smith also says,

The primary argument used by nullification advocates is that the American nation is an association of states, not a union of the people. This argument for an association of states is also used by some to justify secession. In essence, the argument is that the states entered into a contract agreement with one another. In so doing, states surrendered some of their powers to a national government while retaining others for themselves. Where the contract is breached — specifically, where the national government acts beyond its perceived constitutional scope — then a state has recourse to nullify national laws in a declination to submit.

I don’t necessarily agree about primacy, but that argument strikes me as sound.  Since Mr. Smith makes no effort to counter it, I think he has effectively undermined his own premise.  But let’s look at his other points anyway.

With regards to the first point, in his own article Mr. Smith cites the Declaration of Independence, where it says

“That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.  That whenever any form of government becomes destructive to 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. [emphasis his]“

By thinking carefully about those words, we might realize that nullification is exactly a way to alter a government which has become destructive to those stated ends.  Thus, we find the support for nullification which Smith overlooked in the Declaration of Independence.  Further, although he did provide a link to the Tenth Amendment Center, Mr. Smith managed to make his entire argument against nullification without actually mentioning the Tenth Amendment even once.  Either he is unaware that the Tenth Amendment is the corner stone which has already upheld nullification efforts or he chooses to ignore it because he knows that he doesn’t have a counter-argument.

Either way, the Tenth Amendment is the constitutional support that Mr. Smith was unable to find.  Also, as several of his commenters point out, even if support were absent as Mr. Smith claimed, the Constitution defines the role of the federal government.  It does not give permission to the states.  Anything which is not explicitly prohibited to the states is allowed.  We can consider the first point nullified .

With regards to the second point, I will simply paste a comment from American Thinker commenter, “Johnny Appleseed”

The Kentucky Legislature nullified the un-Constitutional Alien and Sedition Federal Laws within its own borders. Who has it right: J. Robert Smith or Thomas Jefferson?

Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes – delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force… Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798… also the act passed by them on the – day of June, 1798… are altogether void, and of no force… that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits” Thomas Jefferson – 1798 Kentucky Resolution

“where powers are assumed which have not been delegated, a nullification of the act is a rightful remedy“.  So if we are to believe Thomas Jefferson, Mr. Smith’s second point is also found to be lacking merit.

On his final point, that nullification has the potential to be dangerous, I find agreement with Mr. Smith.  Any tool can be used or abused.  Nullification is no different.  It is odd, though, that after recognizing the potential “double edged sword” from nullification, Mr. Smith proceeds to state that as a last resort, we may alter or abolish the national (not federal?) government.  Is abolishing the national government less dangerous than recognizing that the sovereign states have the right to nullify unjust or unconstitutional laws?  Not in my opinion.  In my opinion, nullification seems a far safer course of action than Mr. Smith’s preference.  Regardless, the fact that nullification can be misused says nothing about whether it is an option which is available for use by the states.

Let us now move from the theoretical realm to the practical realm.  Johnny Appleseed pointed out that Virginia and Kentucky used nullification against the Alien and Sedition Acts.  This blog has shown how 18th Century Pennsylvania used nullification to counter the Federal Fugitive Slave Acts.  More recently, Real ID and Federal Marijuana Laws have been successfully nullified by numerous states.

In both a theoretical and a practical sense, nullification has been firmly established as a proper course for a state pursuing a just cause.  For all of these reasons, although I have enjoyed several of Mr. Smith’s past articles, I profoundly disagree with this one.

Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

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by Chuck Norris

Not surprisingly, a CNN/Opinion Research Corp. survey released last Friday revealed that 56 percent of Americans think the federal government has become so large and powerful that it poses an immediate threat to their rights and freedoms.

Particularly apropos here is the feds’ health care violation of the 10th Amendment, which is part of our Bill of Rights and was ratified Dec. 15, 1791. The amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Thomas Jefferson explained the pre-eminence of this amendment in 1791: "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.’ 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."

The point is that based on the 10th Amendment, when it comes to legislating and controlling our health care, the federal government doesn’t have a constitutional leg to stand on. And even its past violations of the 10th Amendment by implementing government health care services have proved to break more national legs than they have to mend them. The proof is in the pudding. How many times does it have to be pointed out to Washington? Medicare is going bankrupt. Medicaid is going bankrupt. Case closed.

The government is inept to run America’s health care system. And now it wants to expand its programs (its health care business) to oversee what equates to one-sixth of the gross national product? What rational board anywhere in the world would rightly appoint a CEO who had a string of miserable business failures and major corporate bankruptcies in his dossier?

I agree with Dr. Scott W. Atlas, a senior fellow at the Hoover Institution and a professor at Stanford University Medical Center, and South Carolina Gov. Mark Sanford, who put it best in their article a few months back, titled "Alternatives to government health takeover." They said this: "We think it’s critical that power shifts to the American consumer and away from government, employers and insurers, as evidence shows medical care prices come down when patients pay directly. Government should offer tax relief, such as refundable tax credits, to encourage private health insurance purchasing — especially for low-income families. Similar ideas, like those in the Patients’ Choice Act … are important for Americans to consider. We would do well also to consider creative ideas such as changing federal payments to state-based medicaid plans to individual vouchers or expanding health savings accounts, as has been done in South Carolina."

Returning the onus of solving health care issues to families, local communities and states would not only return a balance of power to our federal government but also help with America’s economic recovery and build up communities at the same time.

The abuse of federal political power to intervene in areas such as Americans’ private health care could exist only in a nation that no longer holds its leaders accountable to its constitution and that has governmental leadership that regards itself as above its people and its constitution. Sadly, I was listening to an interview the other day in which President Barack Obama described the U.S. Constitution as "an imperfect document … a document that reflects some deep flaws … (and) an enormous blind spot." He also said, "The Framers had that same blind spot."

In so doing, the president established a rationale and justification for disregarding the Constitution. Even worse, he placed himself above the Constitution and those "blind Framers," who just couldn’t see the big picture as he does today. After all, he’s the constitutional scholar, and the Framers were just, well, the creators of the document!

Our 44th president would do well to learn from America’s third president, Thomas Jefferson, himself a source greater than any living constitutional lawyer. Imagine Jefferson sitting there at the health care summit, a ripe sage at roughly 80 years of age. After listening to all the clamoring of both Republicans and Democrats, he politely but sternly utters these words, which he also wrote to Supreme Court Justice William Johnson in 1823: "The States supposed that by their tenth amendment, they had secured themselves against constructive powers. They (did not learn from the past), nor (were they) aware of the slipperiness of the eels of the law. I ask for no straining of words against the General Government, nor yet against the States. I believe the States can best govern our home concerns, and the General Government our foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the constitution for the limitation of both; and never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold as at market."

It couldn’t be any clearer or wiser than that.

I encourage you to go to TenthAmendmentCenter.com and learn more about your 10th Amendment rights, and then fight for those rights by holding all your representatives accountable to them.

Chuck Norris is a columnist and impossible to kill.
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http://townhall.com/columnists/ChuckNorris/2010/03/02/obama_vs_the_10th_amendment?page=1

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