Tenth Amendment Center: Patrick Henry’s Warning on “Implied Authority”

TJ Martinell at The Tenth Amendment Center writes about Patrick Henry’s insistence on certain amendments to the proposed Constitution of the United States before ratification in Patrick Henry’s Warning on “Implied Authority”. He argued that it must be explicitly stated that the Constitution did not provide any powers the federal government that were not explicitly stated in the Constitution, lest Congress construe that they did have the power.

Patrick Henry’s impassioned remarks during the final days of the Virginia Ratifying Convention were the culmination of week-long arguments between skeptics of the proposed Constitution and its supporters, such as James Madison.

In modern context, it is easy at first glance to find much of what Henry said to be, unfortunately, pro-slavery. In fact, many modern scholars focus completely on what they might call pro-slavery scare tactics. But this surface understanding of his statements misses the bigger issue at stake for opponents of ratification – whether the new Constitution opened the door for a federal government to invent new authority and subvert state sovereignty.

The convention was closely divided on its support for the Constitution. Henry had hoped the state legislature convening would force the convention to adjourn. Instead, the legislature accommodated, allowing the convention to go on.

After the convention’s presiding officer George Wythe moved to ratify the Constitution, Henry leapt up in protest, adamantly insisting, as he had many times during the debates, that the document required amendments addressing numerous concerns. Chief among them was his fear that the Constitution gave the federal government “implied” powers not specifically stated.

Among other things, Henry demanded that its limited scope of power be specifically stated in the form of an amendment (bold emphasis added):

“With respect to that part of the proposal which says that every power not granted remains with the people, it must be previous to adoption, or it will involve this country in inevitable destruction. To talk of it as a thing subsequent, not as one of your unalienable rights, is leaving it to the casual opinion of the Congress who shall take up the consideration of that matter. They will not reason with you about the effect of this Constitution. They will not take the opinion of this committee concerning its operation. They will construe it as they please.”

He also reiterated his sentiment that the Articles of Confederation was an acceptable government and need not be changed:

“We now act under a happy system, which says that a majority may alter the government when necessary. But by the paper proposed, a majority will forever endeavor in vain to alter it. Three fourths may. Is not this the most promising time for securing the necessary alteration? Will you go into that government, where it is a principle that a contemptible minority may prevent an alteration?”

Further, there was no risk either to undermining what was already included in the Constitution or threatening full ratification by other states due to opposition (bold emphasis added);

“It would be in vain for me to show that there is no danger to prevent our obtaining those amendment, if you are not convinced already. If the other states will not agree to them, it is not an inducement to union. The language of this paper is not dictatorial, but merely a proposition for amendments. The proposition of Virginia met with a favorable reception before. We proposed that convention which met at Annapolis. It was not called dictatorial. We proposed that at Philadelphia. Was Virginia thought dictatorial? But Virginia is now to lose her preminence. Those rights of equality to which the meanest individual in the community is entitled, are to bring us down infinitely below the Delaware people. Have we not a right to say, Hear our propositions!”

The reason Henry devoted so much attention to the issue of “implied powers” is because it was the fundamental issue. If the federal government possessed implied powers, then it could (and would) interpret itself to have the authority to undermine or violate other rights.

Henry’s contention was that the new Constitution did not adequately clarify this, contrary to what the Federalists said.

Henry and other opponents of ratification strongly believed that if the Constitution was adopted without amendments, the ramifications were many and varied. One Henry specifically mentioned was the question of slavery. Under the Articles of Confederation, it was left to the states to decide whether to retain or abolish slavery. However, Henry believed the Constitution would bestow this power to Congress via “implied powers.”

One way would be to call slaves to arms for national defense and offer them their freedom for their participation, as the British had offered American slaves during the War of Independence.

Henry said (bold emphasis added):

“That power which is said to be intended for security and safety may be rendered detestable and oppressive. If they give power to the general government to provide for the general defence, the means must be commensurate to the end. All the means in the possession of the people must be given to the government which is intrusted with the public defence.

“In this state there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States; and yet, if the Northern States shall be of opinion that our slaves are numberless, they may call forth every national resource. May Congress not say, that every black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free.”

Or, if northern states composed a majority in Congress they could simply vote to abolish slavery on the auspices of having the “implied authority,” Henry said. When others at the convention objected to this, he pointed out that the federal government would have the power of granting passports – something specifically prohibited in the Articles of Confederation – even though it doesn’t specifically grant that authority.

“They can exercise power by implication in one instance, as well as in another. Thus, by the gentleman’s own argument, they can exercise the power, though it be not delegated.”

It’s easy to argue that Henry was simply trying to preserve slavery. But his position requires nuance. We don’t have to defend Henry’s comments to place them in the context of the broader constitutional debate.

While saying slavery is “detested,” he added “is it practicable, by any human means, to liberate them without producing the most dreadful and ruinous consequences?”

As he viewed it, the institution of slavery was a Southern issue, and how it was dealt with affected Southerners. His fear was that the matter would be dealt with nationally by people far removed the situation and fundamentally unconcerned with the consequences.

“Every other property of the people of Virginia, is in jeopardy, and put in the hands of those who have no similarity of situation with us,” he said. “This is a local matter, and I can see no propriety in subjecting it to Congress.”

There are a couple of points to consider.

One is that Henry did not advocate for slavery, although he opposed abolition. The institution had been brought in more than a century prior, and by the time of Henry’s birth it had become an indispensable part of the region’s economy. There were also perceived problems with ending the institution that even southern abolitionists acknowledged. Henry referred to this as slavery’s “fatal effects.”

For Henry, it was really about local control. His view was that those directly impacted by slavery – the people in the Southern states – should decide how to deal with the institution. He didn’t want people who had no stake in the issue and little real knowledge of the situation in the southern states to make decisions on their behalf.

Lastly, Henry had this attitude regarding every issue, not just slavery. If it was a local matter, it needed to be handled locally. The peculiarity of slavery’s presence in debates over freedom and individual rights doesn’t undermine Henry’s perspective.

We see this in Henry’s final statement during the convention, which drew such rancor that he was forced to sit down.

“I see the awful immensity of the dangers with which it is pregnant. I see it. I feel it. I see beings of a higher order anxious concerning our decision. When I see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account, on one side or the other, will depend on what we now decide. Our own happiness alone is not affected by the event. All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere.”

Despite his intense rhetoric, James Madison shortly after got up to say he agreed with Henry on the amendments: he favored their inclusion and saw nothing in them that would undercut powers already included in the Constitution.

The convention would ultimately ratify the Constitution, with the inclusion of recommended amendments that eventually lead to the creation of the Bill of Rights.

Considering what transpired just years after, history has vindicated Henry’s worst fears over implied powers.

To give one example, the federal government would soon debate what “necessary and proper” meant in the Constitution and whether that authorized Congress to charter a national bank. Even with the Tenth Amendment making it clear implied powers did not exist, the Supreme Court would aid the Federalists in effectively redefining words to circumnavigate constitutional limitations.

Tenth Amendment Center: Resistance is Crucial to the Advancement of Liberty

In Resistance is Crucial to the Advancement of Liberty, the Tenth Amendment Center discusses the importance of resisting the consolidation of power in government. Consolidation of power is the most destructive danger to liberty. In the United States, the Constitution separated federal power into three branches – the legislative, executive, and judicial – and much power was left to the individual states. Resisting that consolidation is the most important thing a citizen can do to preserve liberty, and the government knows it. The government is so frightened of resistance that they recently declared the electrical symbol for resistance shown above a domestic terrorism symbol, because it fears any threat to the consolidation of power.

As is now obvious to the open-eyed observer, the federal government has absorbed most of the state power and the distinctions between branches are becoming more and more blurry. The various federal administrative agencies are ostensibly part of the executive branch, but watching the previous administration fight with congress over control of the agencies shows just how blurred the lines have become. Congress delegates most lawmaking to these administrative agencies in order to dodge responsibility for laws, and the executive has little control over the agencies actions or even over who heads the agencies.

Additionally, the recent talk about expanding the Supreme Court and limiting the current life tenure of justices to some shorter period, is an attempt not just to politicize the court but to bring it under the sway of both the Congress and national political parties. What better way to control the justices than to control their future job prospects? A limited term justice must find a job after leaving the bench, and it today’s environment of blacklisting, boycotting, and otherwise threatening political opponents, a former justice will have to have toed the party line or otherwise ingratiated themselves with powerful figures in order to get that coveted professorship or corporate law position.

While there are definitely cracks in the federal edifice and signs of failure and opposition, there’s no telling how powerful or destructive the federal government may become before falling apart.

Patrick Henry told us that “government is no more than a choice among evils.”

Thomas Paine held the same view. In Common Sense, he wrote, “Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one.”

What makes government become intolerable?

Consolidation.

That was the term the founding generation used to describe a centralized government with vast power and control – the kind of government we have today.

During the Virginia Ratifying Convention, Patrick Henry warned against consolidation.

“Dangers are to be apprehended in whatever manner we proceed; but those of a consolidation are the most destructive.” [Emphasis added]

He went on to predict that consolidation would, “end in the destruction of our liberties.”

History proved Henry correct.

If consolidation ends in the destruction of our liberties, the key to regaining liberty is “un-consolidation,” or to use an actual word — decentralization.

Political decentralization devolves and distributes political power. This promotes competition in the political marketplace, with various jurisdictions opposing and checking growing power in others.

Most people intuitively understand the problems inherent in economic monopolies. With no competition, a monopolist can easily abuse its customers. It can limit selection. It can raise prices. It can get away with crappy customer service.

Now, think of the federal government as a monopoly. Because that’s exactly what it is.

We need to break the monopoly if we want to regain liberty. We need to decentralize, disperse and minimize political power in order to shrink government to, as Paine put it, “its best state … a necessary evil.”

This strategy requires letting go of centralized political power. That includes resisting the temptation to try to wrest control of the overreaching consolidated government and impose liberty from on high.

This is a difficult concept to grasp in an American political culture that operates almost exclusively through the consolidated government in Washington D.C. People always tend to think in terms of grabbing and wielding political power. This will always fail because political power is the problem.

But a lot of people argue that you need political power to force decentralization. As one person put it, “The great paradox is that in order to diffuse power, you must first acquire it.”

This is wrong.

The paradox is that forcing a diffusion of power is actually a centralization of power. In order to diffuse power, you must first resist it.

Lysander Spooner nailed it on resistance.

“The right of the people, therefore, to resist an unconstitutional law, is absolute and unqualified, from the moment the law is enacted.”

He called resistance “a constitutional right.”

“And the exercise of the right is neither rebellion against the constitution, nor revolution—it is a maintenance of the constitution itself, by keeping the government within the constitution.”

At the Tenth Amendment Center, we talk a lot about resisting overreaching federal power through state and local action. This leads people to believe they have to consolidate power at the state or local level. Having political allies in state and local government certainly helps, but it’s not necessary. And it’s certainly not the first step.

It starts with people resisting.

Think about the nullification of federal marijuana prohibition. Before California legalized medical marijuana in 1996, there were a lot of people who were willing to violate the “law” and use cannabis anyway. It was that groundswell of resistance that led to political changes at the state level. Rosa Parks offers another example. Her willingness to say, “No!” to an unjust law sparked more widespread resistance that eventually led to political change.

Necessity forced the American colonist to adopt a strategy of resistance. They had no political power – and there was no way they were ever going to gain any in faraway London. They had two choices – resist or submit.

They chose to resist.

The Sugar Act in 1764 sparked resistance and it ramped up significantly with the passage of the Stamp Act in March 1765.

The Stamp Act required all official documents in the colonies to be printed on special stamped paper. This included all commercial and legal documents, newspapers, pamphlets, and even playing cards. As historian Dave Benner explained in his article on the Stamp Act, the standard American position held that the act violated the bounds of the British constitutional system. Objecting to the notion that Parliament was supreme, and could impose whatever binding legislation it wished upon the colonies, the colonies instead adopted the rigid stance that colonists could only be taxed by their local assemblies. They claimed this principle stretched all the way back to 1215 and the Magna Carta.

Resistance started with protests. Patrick Henry drafted a series of resolutions. In the seventh, He asserted, “the Inhabitants of this Colony, are not bound to yield Obedience to any Law or Ordinance whatever,” outside of those passed by the colonial assemblies.

John Dickinson wrote, “IF you comply with the Act by using Stamped Papers, you fix, you rivet perpetual Chains upon your unhappy Country. You unnecessarily, voluntarily establish the detestable Precedent, which those who have forged your Fetters ardently wish for, to varnish the future Exercise of this new claimed Authority.”

John Hancock was perhaps most emphatic, declaring, “The people of this country will never be made slaves of by a submission to the damned act.”

They didn’t.

Patriots throughout the 13 colonists blocked the distribution of stamped paper, forced stamp agents to resign, and effectively made that act impossible to enforce. Ultimately, mass resistance and noncompliance forced Parliament to repeal the hated law.

Historian Dave Benner summed up colonial resistance this way.

“Rather than hoping the next election will produce preferable results or waiting for the courts to weigh in on controversial law, the patriots took a fierce stand against an odious law. In doing so, they inspired tireless masses to their cause, brought about a reversal of policy without representation in Parliament, and changed the world as we know it.”

The problem is this strategy is scary, hard, and often requires sacrifice. Many people felt the heavy hand of the law in the early days of the movement to nullify marijuana prohibition. Rosa Parks went to jail. And the British ultimately drug American colonists into a war.

On the other hand, politics is relatively easy. You just gain power and then impose your will. But this is the antithesis of liberty. And at some point, the political pendulum will swing away from you as it always does and people you hate will control that power.

There is no easy path to liberty. As Thomas Paine wrote, “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.”

Tenth Amendment Center: The Virginia Declaration of Rights

Setting a Foundation: The Virginia Declaration of Rights from the Tenth Amendment Center discusses how the Virginia Declaration of Rights, which was passed around the time that the Declaration of Independence was beginning to be written, was a basis for both the Declaration and the much later Constitution.

On June 12, 1776, the Virginia House of Burgesses passed the Virginia Declaration of Rights. It is arguably the most important founding document that most people have never heard of.
The Virginia Declaration of Rights laid the groundwork for both the Declaration of Independence and the U.S. Constitution. Most significantly, the first three sections establish the philosophical framework that supports the entire U.S. system of government.
It declares that “all men are by nature equally free and independent and have certain inherent rights,” that “all power is vested in, and consequently derived from, the people,” and that “the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish [government], in such manner as shall be judged most conducive to the public weal.”
These ideas were later reflected in the Declaration of Independence.
History
Months before the 13 colonies approved the Declaration of Independence, Virginia was already operating as a free and independent state. The colonial governor fled in January 1776 after the burning of Norfolk. In his absence, the Governor’s Council (the upper house of the colonial legislature) and the House of Burgesses dissolved themselves into a Convention under the authority “of the people” and assumed control over colonial affairs.
On May 15, 1776, the Convention declared Virginia a free and independent state “absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain. The resolutions included three action steps — drafting a declaration of rights, drafting a constitution, along with establishing confederated relationships with the other colonies and treaty relationships with other countries.
Historian Kevin Gutzman wrote that the entire process drew from precedents set during Britain’s Glorious Revolution.

“Self-consciously following the example of Britain’s Glorious Revolution, in which the Declaration of Rights had been the condition of William and Mary’s joint assumption of the English monarchy, the Virginians put their fundamental statement of political principles first, and then adopted the constitution that would implement it. Virginians thought of their colony as independent from that point.”

The Convention formed a committee headed by George Mason to draft the declaration of Rights.
Mason drew from and expanded on existing English political thought. A close reading of the declaration reveals influences including the English Bill of Rights (1689) and the writings of John Locke.
He begins by establishing the philosophical foundations of government, including separation of powers, and then outlines several specific individual rights, including many that were reflected in the U.S. Constitution’s Bill of Rights. The document affirms the right to a jury trial, protection from excessive fines and bail, a ban on general warrants that authorize searches without “facts,” freedom of the press, and the subordination of the militia to civil authority.
James Madison penned the final article, declaring that “religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”
The Convention adopted the Virginia Declaration of Rights on June 12, 1776.
Gutzman writes, “The influence of the Virginia Declaration of Rights would be hard to exaggerate.”

“Many of its provisions were used in other states. Thomas Jefferson, helping Frenchmen draft their Revolution’s Declaration of the Rights of Man and Citizen, saw to it that some of the Virginia provisions were essentially translated into that document. From France, their language made its way into the charters of several francophone countries, and eventually into the United Nations’ version. From there, it would be transplanted into yet more countries’.”

A Revolution of Thought
In fact, the Virginia Declaration of Rights reflected a revolution in thought. It turned the established British conception of government on its head.
When people today talk about the American Revolution, they generally mean the fight with England. But there was a more fundamental revolution that began long before the first shot was fired and ultimately drove the American colonists to seek independence – a revolution of thought that radically altered the conception of sovereignty. The Virginia Declaration of Rights articulated these ideas.
In an 1818 letter to Hezekiah Niles, John Adams described the American Revolution in just such terms.

“But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations. … This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”

This fundamental change in thought relates to the concept of sovereignty – the question of who holds the ultimate power and authority within a political society.
In the British system, the “King in Parliament” was considered sovereign. In effect, Parliament was sovereign with the king serving as the arm to put its power into action.
In the years leading up to the Revolution, Americans started to question this conception of political power. They began to think of a constitution as something that exists above the government. The colonists began to reject the idea that government formed the constitution and instead conceived of the constitution as something that binds government. They used these kinds of constitutional arguments when challenging British authority, asserting they had longstanding, well-established constitutional rights that the King and Parliament were violating.
We see this shift in the first several articles of the Virginia Declaration of Rights, particularly Section 2, declaring:

“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.”

This was reflected in the Declaration of Independence.

“To secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

The Declaration of Rights makes clear the importance of firmly stating our principles and placing limits on government. The question then becomes, how do you enforce them?

Tenth Amendment Center: When Can an Originalist Scholar Begin with the Constitution’s Text?

Constitutional scholar Rob Natelson at the Tenth Amendment center writes When Can an Originalist Scholar Begin with the Constitution’s Text?

I. The question

I recently wrote a post for the Federalist Society Blog, in which I examined the Constitution’s enumeration of who can be impeached and convicted. I concluded that the enumeration, coupled with the rules of construction the Founders intended to accompany the document, created a presumption that ex-officers could not be. But I added that this presumption was rebuttable by extraneous evidence.

Professor Michael Ramsey wrote a notice on the posting. He remarked that most originalist inquiries can proceed as I did—that is:

* examine the text and apply the rules of construction to it, thereby establishing a presumptive meaning, and then

* turn to outside evidence to see of it rebuts, qualifies, or reinforces the presumptive meaning.

I agree with Professor Ramsey. However, his comment got me thinking about the minority of cases where one cannot proceed in that manner. These are instances in which the text remains unclear even after applying the rules of construction. Moreover, sometimes after examining the text it even remains unclear whether that text is unclear. In fact, what seems obvious on initial examination may be entirely wrong.

In such cases, we must consult outside evidence to establish a presumptive meaning.

Fortunately, the impeachment enumeration I addressed in my FedSoc post was clear, at least as far as I needed to go. However, as explained below, on first reading another impeachment phrase—“high . . . Misdemeanors” —is not.

In this post I offer some guidance as to when an initial resort to extraneous evidence is necessary to establish the text’s presumptive meaning. For illustrations, I’ve mined my thirty or so articles and book chapters on the original meaning/understanding of specific constitutional clauses.

II. Dictionaries

In some cases, I have been able to reach a presumptive meaning by examining 18th century dictionaries. Mind, though, that when consulting dictionaries, one must not stop with Samuel Johnson, because his definitions are sometimes archaic or idiosyncratic. I have about 25 18th century dictionaries in PDF form, not counting multiple editions. Some are specialized, such as dictionaries focusing on law, military terms, Latin, or Law French. Most are general-purpose. When writing on original meaning I consult all or most of them. I find I can learn much from how their definitions vary or track each other.

But dictionary searches can prove inconclusive. Sometimes dictionaries offer multiple definitions, so you have to examine extraneous evidence to determine which one the Constitution employs. Sometimes a term appears in a specialized dictionary, but not in others. Sometimes the definition employed by the Constitution does not appear in any dictionary at all.

Results like this compel resort to extrinsic evidence to determine presumptive meaning. Here are some typical scenarios. You will notice that some of them overlap.

III. Some Scenarios

Scenario #1: The dictionaries offer several common meanings of a word or phrase, but it is not clear which one the Constitution employs

I encountered an example when researching my article on the Coinage Clause. The Coinage Clause reads, “The Congress shall have Power . . . To coin Money, regulate the Value thereof, and of foreign Coin . . . ” As is true today, during the 18th century the most common use of the verb “to coin” was to strike metallic tokens. Libertarians long relied on the assumption that this was the Constitution’s meaning, and therefore claimed paper money is unconstitutional. Left-of-center commentators relied on the same assumption to illustrate the impracticality of originalism.

However, no one seems to have noticed a textual problem with interpreting coinage as referring only to metal. That interpretation would leave Congress in the unlikely position of enjoying power to regulate foreign metallic tokens, but bereft of power to regulate foreign paper currency.

The 18th century dictionaries reported a secondary meaning of “to coin:” to fabricate. Today that usage is exceedingly rare: a survival is the expression “to coin a phrase.” But a survey of 18th century databases revealed that the secondary meaning was then much more common. People spoke of “coining” paper money, leather money, and so forth.

Thus began a full-bore investigation into the history of money, especially the extraordinary monetary innovations undertaken in the colonies of British North America. After acquiring this background, my presumptive conclusion was that the Coinage Clause authorized Congress to issue and regulate “coin” in media other than metal. Ambiguous comments during the Constitutional Convention were insufficient to rebut this result, and the ratification-era debates only reinforced it.

When researching my early article statutory retroactivity, I encountered another problem with which the dictionaries offered no help. This was ambiguity of the phrase “ex post facto law.” During the 18th century, the term might refer only to criminal statutes, or it could include retroactive civil statutes as well. The framing and ratification records clarified that the prevalent understanding was the former. A search for contradictory evidence led only to confirmation: James Madison’s and John Lansing’s subsequent drive for Takings and Due Process clauses to limit the scope of civil retroactivity.

Scenario #2: A word or phrase with an ordinary meaning appears in the Constitution, but as a legal term of art

In this scenario, a colloquial meaning may appear in lay dictionaries, but the manner in which the Constitution uses the word appears in law dictionaries or other legal works.

Over the years, I’ve been impressed by how often a puzzling word—or even, at first blush, an unpuzzling one—turns out to be an 18th century legal term of art. It’s not so surprising, if you think about it. The chatter about how the Constitution is written in “plain language” is not quite the truth. The Constitution is a legal document and it was written by a group of people about two-thirds of whom had been practicing lawyers. Most of advocates who explained it to the public were lawyers, Madison and Tench Coxe being the most notable exceptions.

Nor were their explanations necessarily unintelligible to the involved American public, because that public was then unusually well educated in law: As Edmund Burke remarked when urging conciliation with America, “In no country perhaps in the world is the law so general a study.”

Of course, you expect a phrase like “habeas corpus” to embody a legal meaning. You don’t expect the same from a word like “necessary.” Yet in research on the Necessary and Proper Clause, I found that the Constitution uses “necessary” as a signal for incidental powers—a very common approach in 18th century legal documents.

Learning enough to establish a presumptive meaning for the Necessary and Proper Clause required deep initial research into contemporaneous law books, documents, and judicial cases.

Other examples of 18th century legal boilerplate reproduced in the Constitution include “Privilege” and “Privileges and Immunities.” A search through contemporaneous law and legal documents found that they denoted government-created entitlements, including very important ones such as trial by jury and “the Privilege of the Writ of Habeas Corpus.” But as the Constitution used those words, they did not comprehend rights established by nature and nature’s God. They were creations of government. Justice Bushrod Washington therefore got it largely wrong in his famous, and somewhat incoherent, passage in Corfield v. Coryell.

It probably comes as no surprise that “direct tax” was another legal term of art. What did surprise me is that the concept was far more defined and comprehensive than commonly supposed.

Both Britain and American states adopted omnibus tax statutes that provided for assessment of certain items and imposed levies upon them. In Britain and some states these were called “Land Tax” laws. But they levied on much more than real estate. They taxed human beings (capitations on both free and slave); status; wealth; professions (“faculties”) and other activities; wages, interest, profits and other kinds of income; household items, livestock, and other personal property. All the levies imposed by these omnibus statutes, and others like them, were called “direct taxes.” (Other statutes imposed indirect taxes, primarily on consumption or discrete events: excises and other “duties.”)

Thus, the Supreme Court’s much-abused case of Pollock v. Farmers’ Loan and Trust Company was correctly decided, for income taxes are direct taxes after all.

Obviously, arriving at a presumptive meaning of “direct tax” required a great deal of work with extrinsic evidence, including but not limited to 18th century tax statutes.

One final example: For decades commentators had argued over the Constitution’s term “high . . . Misdemeanors” as a ground for impeachment. Apparently only one researcher, Raoul Berger, had considered whether the phrase might be a legal term of art. But his investigation, undertaken without the benefit of modern word-search technology, was cursory and unsuccessful. Too late to prevent me from embarrassing myself in print with another hypothesized definition, I finally thought to check legal sources and certain lay sources (such as encyclopedias) explaining legal terms.

The answer was decisive: High misdemeanors were serious crimes not meriting the death penalty, such as bribery (which the Constitution mentions in this context) and assault. A mere breach of fiduciary duty was not, as I previously had thought, a high misdemeanor.

Scenario #3: The Constitution’s use of a term is not in dictionaries at all

Sometimes the framers employed words and phrases in ways that don’t appear in 18th century dictionaries or similar reference works. Instead, the constitutional meaning arose in a context the lexicographers had overlooked.

I encountered this situation when researching the Constitution’s use of the word “emolument.” The dictionary definitions were very broad: “profit” or “advantage.” Those broad definitions, I found, accurately reflected much lay usage, but for various reasons they made no sense in the constitutional text. Hence it became necessary to consult extraneous evidence to arrive at a presumptive meaning.

It turns out that in political discourse, “emoluments” carried any of three narrower meanings: (1) financial gain or, more commonly (2) gain from salary or wage plus associated fringe benefits, or (3) fringe benefits alone. Placing the Constitution’s emoluments clauses within the wider context of a then-current trans-Atlantic movement to reform how government officials were compensated enabled me to fix on what I believe is correct: An “emolument” as the Constitution uses the term refers to gain from a salary or wage plus associated fringe benefits.

Scenario #4: Some of the Constitution’s words are Americanisms

This is really a subset of Scenario #3, because these are usages that do not appear in the dictionaries, almost all of which were published in Britain.

For example, in researching my article on the Taxation Clause I found that “Eighteenth century British lay dictionaries defined ‘duty’ widely enough to include almost any financial exaction” and commercial dictionaries defined it more narrowly. But in American usage, a duty was “any financial exaction that did not qualify as a direct tax.” Thus, a duty could mean an indirect tax or a non-revenue-producing exaction to regulate commerce or other conduct. Other evidence reinforced this presumed meaning.

In 1787, the word “constitution” was an Americanism-in-development. In Britain it referred only to the political system, and that is how all contemporaneous dictionaries defined it. That was the American meaning when the Declaration of Independence was written (“a jurisdiction foreign to our Constitution”), and it was still employed that way in Virginia’s 1786 call for the 1787 federal convention. (Contrary to common belief, the convention was called in late 1786 by the Virginia legislature, not by Congress; Congress’s February 21, 1787 resolution merely endorsed the effort after seven states already had accepted Virginia’s invitation.)

However, the meaning was in flux. The “frames of government” adopted in the states often were called “constitutions.” Then came the U.S. Constitution, whose title sealed the change. A new Americanism was born.

Scenario #5: A word may have a constitutional meaning we don’t suspect because that meaning is now archaic

My favorite example of this—in fact, I think a perfect one—is the appearance of “perfect” in the Constitution’s Preamble. Modern Americans sometimes puzzle over how a Union can be made “more perfect.” This is because we almost always use this word to mean “without flaw.” How can something be “more without flaw?”

The answer is that the more common 18th century use of the term was the Latinate meaning of “complete” (Latin: perficere, to finish). The new Union was to be more complete—more tightly woven together—than the union formed by the Articles of Confederation.

Fortunately, there are not many non-legal archaisms in the Constitution—at least not many that sneak up on you. They are more likely to do that when you read other Founding-Era materials.

A good example was Leonard Levy’s mistaken conclusion that the Senate was to be the primary conductor of foreign policy because the framers sometimes referred to the president as the foreign policy “agent.” Levy didn’t realize that there was another, more Latinate, meaning of “agent” then common. Although an “agent” could mean a representative, it also could mean a “doer” or “driver” (from agere, to do or drive). The founders were using the latter sense: The president, not the Senate, was to be the primary driver of foreign policy.

Of course, you might not realize that a word is an archaism and therefore not think to consult a dictionary. That is one reason I recommend that constitutional scholars immerse themselves in 18th century writings and become familiar with the Latin language. (“But that’s time-consuming and hard!” Answer: “You bet it is.”) Latin was the Founders’ second language and significantly influenced 18th century English usage. If you have it, you see much more.

IV. Conclusion

Professor Ramsey is correct to say that we usually can reach a presumptive meaning of a constitutional provision from the text alone. But there are many situations in which you have to consult extrinsic sources before arriving at a presumptive meaning.

If you find yourself in such a situation, I can offer two sources of comfort: First, much of the evidence you explore while seeking the presumptive meaning leads you to evidence that rebuts or reinforces that meaning. Second, the historical journey is usually fascinating.

Tenth Amendment Center: The Anti-Commandeering Doctrine

Mike Maharrey at the Tenth Amendment Center discusses The Anti-Commandeering Doctrine and its use to combat federal overreach.

The anti-commandeering doctrine provides a powerful tool to undermine overreaching, unconstitutional federal power. So, what is this doctrine? What is it based upon? And how can it be used as an effective tool for liberty?

How Do We Confront Federal Overreach?

Most people assume the feds have the final say. When Uncle Sam says jump, states and local government simply ask, “How high?” But given that the federal government was intended to limit its actions to constitutionally delegated powers and all other authority was left “to the states and the people” per the Tenth Amendment, how do we hold the federal government in check? How do we stop it from exercising powers not delegated?

This isn’t a new question. In fact, those skeptical of the Constitution raised it during the ratification debates. James Madison answered it in Federalist #46.

In his blueprint for resisting federal power, Madison offered a number of actions, but most significantly, he suggested that a “refusal to cooperate with officers of the union” would impede federal overreach.

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” [Emphasis added]

What Is the Anti-Commandeering Doctrine?

Anti-commandeering is a longstanding Supreme Court doctrine. In a nutshell, the anti-commandeering doctrine prohibits the federal government from “commandeering” state personnel or resources for federal purposes.

In effect, the federal government is constitutionally prohibited from requiring states to use their personnel or resources to enforce federal laws or implement federal programs. State and local governments cannot directly block federal agents from enforcing federal laws or implementing federal programs, but they do not have to cooperate with the feds in any way. For instance, a local sheriff cannot block ATF agents from enforcing a federal gun law, but the ATF cannot force the sheriff’s office to participate in the enforcement effort.

Which Supreme Court Cases support the Anti-Commandeering Doctrine?

The anti-commandeering doctrine rests on five landmark cases, the first dating back to 1842.

Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it:

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution

New York v. United States (1992) the Court held that the regulations in the Low-Level Radioactive Waste Policy Amendment Act of 1985 were coercive and violated the sovereignty of New York, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.

Sandra Day O’Connor wrote for the majority in the 6-3 decision:

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She later expounded on this point.

While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine. At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”

Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.

Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Independent Business v. Sebelius (2012), the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Robert Kennedy argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

Murphy v. NCAA (2018), the Court held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued:

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Taken together, these five cases firmly establish a legal doctrine holding that the federal government has no authority to force states to participate in implementing or enforcing its acts.

Madison’s advice in Federalist #46, supported by the anti-commandeering doctrine, provides a powerful tool that states can use against federal acts and regulatory programs.

Can’t the Federal Government Punish Wayward States By Cutting Funding?

In simple terms, the federal government cannot use funding to coerce states to take a desired action. Independent Business v. Sebelius directly addressed this issue.

The federal government can withhold funding related to any action that a state refuses to take, but with some significant limitations and caveats. For instance, if the state refuses to enforce federal marijuana laws, the federal government can possibly cut some funding relating to drug enforcement. But it cannot cut unrelated funding to punish the state. In other words, Congress couldn’t cut education funding to punish a state for not cooperating with marijuana prohibition.

How Do We Determine What Is or Isn’t Constitutional? Isn’t that the Supreme Court’s Job?

The short answer is it doesn’t matter. Constitutionality isn’t part of the equation. The anti-commandeering doctrine doesn’t depend on a finding of constitutionality. States can refuse to provide personnel or resources for any federal activity regardless of its constitutionality. The utilization of state recourses, funds and personnel are totally at the discretion of the state government.

Will This Strategy Work?

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Partnerships don’t work too well when half the team quits. By withdrawing all resources and participation in federal law enforcement efforts and program implementation, states, and even local governments, can effectively bring the federal actions to an end.

Consider the 36 states that have legalized marijuana despite federal prohibition.

The legalization of marijuana in a state removes a layer of laws prohibiting the possession and use of marijuana even though federal prohibition would remain in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

The same is true for virtually every federal action, from gun control, to Obamacare, to FDA mandates. The federal government depends on the states. And the states don’t have to cooperate.

Tenth Amendment Center: No Expectation of Privacy? Are You Sure About That?

Mike Maharrey at the Tenth Amendment Center talks about a reasonable expectation of privacy in public and how government is (should be) held to higher standard.

A lot of people just parrot things they hear without really thinking about it. If they did carefully consider what they were saying, they probably wouldn’t say it. This is particularly true when it comes to mass, warrantless surveillance.

The Lexington Police Department covertly uses two cameras that can be hidden in streetlights and one that is disguised as a utility box. Coupled with the fact that documents released by the LPD during legal proceedings reveal lax policies that could be interpreted to allow surveillance virtually any place at any time, I find the use of these cameras troubling.

But I’ve been told I have no basis to oppose the use of these cameras because, “You have no expectation of privacy in a public place.”

This is true in a technical, legal sense. But just because something is legal doesn’t make it just or ethical. And legality has virtually no bearing on how we live our lives.

And when you really did deep, most people don’t really believe this nonsense.

Based on the “expectation of privacy” doctrine, you can stand on the sidewalk in front of my house and take pictures of my daughter playing in the yard all day every day. You can even take pictures of my wife getting dressed through the window if she forgets to pull the curtains closed. Now, I may not have any legal expectation of privacy in my front yard or through my open blinds, but in the real world, I damn sure expect my daughter to be able to play in the yard and my wife to be able to get dressed free from your video-voyeurism.

And I think most reasonable people have the same expectation. It may not be a valid legal expectation, but it is certainly a reasonable human expectation.

The legal notion of “no expectation of privacy” in public is really meant to apply to incidental observation. I can’t come after you for taking a photo of a bird in my yard even if you happen to capture my daughter in the frame. I can’t demand police arrest you if you happen to glance up and see my wife through an uncovered window. I can’t get angry if I start dancing in a public park and you film me and stick it on YouTube.

But even from a legal standpoint, you can’t spy on me. At some point, your behavior crosses the line from incidental observation to stalking. I’m pretty sure if you saw me standing on the street taking pictures of your kids for hours on end, my insistence that you have “no expectation of privacy” would fall on deaf ears.

Government surveillance is more akin to stalking than incidental observation. If a cop positions a camera in such a way as to capture everything that happens in your yard, that’s a little creepy. It may be legal, but that doesn’t make it right.

In fact, government is held to a higher standard than everyday folks. The Fourth Amendment and privacy protections in every state constitution make this clear. For instance, Section 10 of the Kentucky State Constitution declares:

“The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

If government agents are going to watch me, they should have probable cause and get a warrant. Otherwise, they should leave me alone.

The issue of privacy was one of the flashpoints that led to the American War for Independence.

Prior to the Revolution, the British claimed the authority to issue Writs of Assistance allowing officials to enter private homes and businesses to search for evidence of smuggling. These general warrants authorized the holder to search anyplace for smuggled good and did not require any specification as to the place or the suspected goods. Writs of assistance never expired and were considered a valid substitute for specific search warrants. They were also transferable.

Electronic surveillance is the 21st-century version of writs of assistance. They allow police to go on fishing expeditions and watch our every move. They empower law enforcement to track us, document us and monitor us until they find a reason to come after us.

George Orwell’s 1984 was meant to warn us about ubiquitous government surveillance, not serve as an instruction manual.

I’ve written before about the negative impacts of surveillance on society and this odd mantra of “if you have nothing to hide you have nothing to fear.” I encourage you to review that article if you’re still not convinced.

People who roll out arguments like “you have no expectation of privacy” or “if you have nothing to hide you have nothing to fear” are really telling me they simply don’t believe the government would ever target them with surveillance. This mostly comes from conservatives who value law and order. But you should ask yourself a question: who is going to get targeted by surveillance when the government decides it wants to enforce a mask mandate? Or arrest people for attending a church service? Or when they come after a certain kind of gun? You are only one policy-shift away from having the digital crosshairs on your back.

Never forget, the power you give government over others — it also has over you.

Tenth Amendment Center: There Is No Anti-Commandeering Doctrine when Local Governments Take on a State

Mike Maharrey at the Tenth Amendment Center discusses legal issues related to trying to apply state sovereignty over federal acts (nullification) down to county and city actions against state power in There is No Anti-Commandeering Doctrine when Local Governments Take on a State

The Tenth Amendment Center’s practical nullification strategy relies on James Madison’s blueprint for taking on federal power. Madison advised that “a refusal to cooperate with officers of the union” would create impediments and obstructions to federal acts.

The Supreme Court’s long-standing anti-commandeering doctrine supports this nullification strategy. In a nutshell, this legal doctrine prohibits the federal government from “commandeering” state and local personnel or resources for federal purposes.

In effect, the federal government cannot force state or local governments to cooperate in the enforcement of federal laws or the implementation of federal programs. With the Supreme Court affirming this doctrine in five major cases dating back to 1842, the feds are legally powerless in the face of state noncooperation.

A lot of people want to apply this anti-commandeering strategy to state governments as well. The idea would be for a county or local government to simply refuse to enforce a state law. Activists have specifically pushed this strategy to block enforcement of state gun control laws. But local non-cooperation with state laws poses significant problems from a legal standpoint because the relationship between a city or county and a state is much different than the relationship between a state and the federal government.

By their action, the states created the federal government. Even though they make up part of the union, each state remains a sovereign political society. The states delegated some powers to the federal government and within its constitutional authority, the federal government enjoys supremacy. But outside of the federal government’s delegated authority, the states maintain their fundamental independence. In Federalist #32, Alexander Hamilton explained that under the new Constitution, the states would retain their sovereignty and independence, and would only be subject to the general government in those areas where power was specifically delegated to it.

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

State governments and their local governments have a fundamentally different relationship. Cities and counties are “political subdivisions” of the state. They possess virtually no autonomy unless their state legislatures give it to them. And what the legislature can give, the legislature can take away. In fact, cities and counties exist at the will of the state government. The state legislature can change their borders, split them up, or even dissolve them completely. As a result, counties and cities have a legal obligation to follow the directives of the state government.

From a legal standpoint, no anti-commandeering doctrine exists for cities or counties. They cannot legally refuse to cooperate with state dictates. The state government can commandeer local personnel and resources for state purposes because cities and counties only exist as extensions of the state.

There are some exceptions to this rule. Some states, including Illinois, extend local governments “home rule” privileges, granting them some autonomy. But even in these states, the legislature can override home rule.

In practice, local governments can still refuse to enforce state laws or implement state programs. But unlike states that refuse to cooperate with the federal government, local governments can be punished by the state for their noncooperation. The state legislature can legally cut funding to local governments that refuse to enforce a state law. They even have the power to remove local officials from office or perhaps subject them to criminal penalties.

This makes local non-cooperation with a state government a very difficult strategy to carry out. It could prove successful if enough local entities ban together. But without the anti-commandeering legal doctrine to shield them, it’s much easier for a state to force local and county compliance. The states have legal cover when they refuse to cooperate with the federal government. Local governments enjoy no such legal shield against the state.

From a strategic standpoint, activists should be wary of trying to employ a strategy created for states to use against the feds as a tool for local governments to take on a state. It could be effective if enough local entities work together and create enough political pressure to dissuade the state from cracking down. But you need to be aware that local governments and their employees enjoy virtually no legal protection and the state has significant latitude in how it deals with an uncooperative local entity.

Tenth Amendment Center: The Constitutionality of a National Bank – Hamilton vs. Jefferson

Here another US government history article. From Mike Maharrey at The Tenth Amendment Center, The Constitutionality of a National Bank: Hamilton vs. Jefferson.

The First Bank of the United States was charted for a period of 20 years by Congress on Feb. 25, 1791. Alexander Hamilton championed the bank, but it wasn’t without its detractors. One of the most vocal opponents of the bank was Thomas Jefferson who argued that it was unconstitutional.

The debate was really about more than chartering a bank. At its core, it was an argument about the extent of federal power. Jefferson held to the promise of the ratification debates – that federal authority would remain carefully circumscribed by the enumerated delegated powers. Given that the Constitution doesn’t authorize Congress to charter corporations, much less a national bank, Jefferson argued that it was an unconstitutional act.

On the other hand, Hamilton pivoted from the position he took during the ratification debates and justified his project by invoking the doctrine of “implied powers.” His arguments foreshadowed how federal policies of every imaginable stripe would be justified moving forward. Arguably, Hamilton’s arguments for the First Bank of the United States set the foundation for much of the federal overreach we have today.

Jefferson and Hamilton both wrote documents making their cases for the establishment of the bank. Jefferson wrote his Opinion on the Constitutionality of a National Bank first.

He rested his argument on the Tenth Amendment, writing:

“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.”

He then succinctly stated his conclusion.

“The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.”

Jefferson proceeded to outline the various clauses of the Constitution supporters of the bank used to constitutionally justify and explained why they failed to bear the burden of that power.

The primary justification was the Commerce Clause, but Jefferson argued that “to erect a bank, and to regulate commerce, are very different acts.” Erecting a bank actually creates an institution of commerce, and as Jefferson pointed out, “to make a thing which may be bought and sold, is not to prescribe regulations for buying and selling.”

He went on to argue that if erecting a bank is an exercise of the commerce power, it would be void because it would also impact commerce within individual states.

“For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.”

Next Jefferson tackled the General Welfare Clause, pointing out that Congress cannot lay and collect taxes for any purpose it pleases, “but only to pay the debts or provide for the welfare of the Union.” Likewise, Congress can’t do anything it pleases to promote the “general welfare.” It can only further the general welfare by laying taxes and acting within its enumerated powers.

“In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please. It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lacce them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect.” [Emphasis original]

Jefferson drove his point home by pointing out a very inconvenient fact for Hamilton – the Philadelphia Convention debated and rejected delegating the power to charter corporations.

On one of the final days of the convention, James Madison proposed the federal government be delegated the authority “to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual State may be incompetent.”

Rufus King of Massachusetts objected specifically on the grounds that “It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities (New York and Philadelphia). He also warned that “In other places it will be referred to mercantile monopolies.”

George Mason of Virginia proposed limiting the power to charting corporations for the construction of canals. “He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.”

Ultimately, the convention rejected the proposal completely. Historian Dave Benner wrote, “This casts overwhelming doubt on the notion that the Constitution allowed Congress to form such monopolies. No enumerated power to grant monopolies and corporate charters was ever included in the document, and during the ratification campaign, none of the Constitution’s advocates cited the presence of such a power.”

But Hamilton’s arguments didn’t rely on the existence of any delegated power. Instead, he appealed to the existence of unwritten “implied powers.”

In response to Jefferson’s appeal to the Tenth Amendment and that the federal government can only exercise delegated powers, Hamilton affirmed it, and then effectively nullified its limiting force. He wrote, “The main proposition here laid down, in its true signification is not to be questioned.” But he continued, insisting, “It is not denied that there are implied well as express powers, and that the former are as effectually delegated as the latter.”

But who decides the extent of these implied powers? Who determines their limits? In effect, Hamilton sets up an almost unlimited reservoir of power the general government can dip into in order to take whatever actions it deems appropriate. This was a 180-degree reversal from the position he took during the ratification debates when he insisted that the new general government would only exercise limited powers.

Hamilton primarily based his defense of the national bank on the “necessary and proper clause,” citing it as the source of these “implied” powers. While Jefferson relied on a very narrow definition of “necessary and proper,” Hamilton used the phrase to milk implied powers out of the Constitution.

The debate centered on the meaning of the word necessary. Jefferson took a very narrow view, arguing that the government can carry out all of its enumerated powers without a national bank. “A bank therefore is not necessary, and consequently not authorized by this phrase.”

“It has been urged that a bank will give great facility or convenience in the collection of taxes, Suppose this were true: yet the Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory.”

Hamilton found this view too limiting. He wrote, “It is certain that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to.”

“It is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing. … To understand the word as the Secretary of State does, would be to depart from its obvious and popular sense, and to give it a restrictive operation, an idea never before entertained. It would be to give it the same force as if the word absolutely or indispensably had been prefixed to it.”

Jefferson hit the problem with Hamilton’s view on the head. It opens up a door to virtually unlimited government power. This runs counter to James Madison’s assurance in Federalist #45 that “the powers delegated by the proposed Constitution to the federal government are few and defined.” [Emphasis added]

Under Hamilton’s “implied power” doctrine and his loose reading of the necessary and proper clause, there is very little the federal government can’t do. After all, virtually anything could be defined as “needful” or “useful” to the government. During the ratification debates, opponents of the Constitution worried that the necessary and proper clause would be construed exactly as Hamilton read it. At the time, Hamilton swore they had nothing to worry about. In Federalist #33, he wrote, “It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses [necessary and proper and the supremacy clause] were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.” [Emphasis added]

Hamilton pivoted from “specified powers” in 1788 to “implied powers” just three years later.

In his push for a bank, Hamilton also invoked a rule of construction very favorable to the government. He wrote, “This restrictive interpretation of the word necessary is also contrary to this sound maxim of construction, namely, that the powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country, its finances, trade, defense, etc., ought to be construed liberally in advancement of the public good.”

This was not “a sound maxim of construction” at the time.

St. George Tucker was an influential lawyer and jurist, and he wrote the first systematic commentary on the Constitution. Published in 1803, View of the Constitution of the United States served as an important law book, informing the opinions of judges, lawyers and politicians for the next 50 years. He explained that we should always construe federal power in the most limited sense possible.

“The powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively or individually, may be drawn in question.”

This is the exact opposite of Hamilton’s maxim. As “Light Horse” Harry Lee put it during the Virginia ratifying convention, “When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed. Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional.”

When political power resides in the people, the default position should always be to assume the most limited government power possible – not the most liberal reading as Hamilton insisted.

Later in his life, Jefferson made a similar point in a letter to William Johnson.

“On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”

There was no probable construction authorizing charting a national bank.

Reading Hamilton’s arguments for the bank, it becomes clear he was trying to “squeeze” meaning – and power – out of the Constitution. Under the limited general government promised by supporters of the Constitution during ratification, including Alexander Hamilton, there would have been no national bank.

Hamilton’s twisting of the Constitution to wring out new powers set the stage for all the federal overreach that would follow. It was the “foundation” for the “living breathing” Constitution we live under today.

Tenth Amendment Center: The Constitution Wasn’t Written to Protect Your Liberty

From the Tenth Amendment Center comes a short piece on the limited purpose of the US Constitition, The Constitution Wasn’t Written to Protect Your Liberty

One of the most biggest misconceptions I hear about the Constitution is that it was written to “protect our liberty.”

It wasn’t. At least not in a direct sense.

The confusion likely arises from the words of the Declaration of Independence.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

It’s true that the Constitution was written during a time when protecting unalienable rights was widely viewed as the primary role of government. But the Constitution is not a philosophical document. It is a legal document that formed a political union and created a central government.

That’s all it does. Asking it to “protect your rights” is really asking too much. That wasn’t why it was written or ratified.

Now the Constitution does reflect the philosophy espoused in the Declaration in that it established a general government of limited, enumerated powers. The decentralized nature of the political system it created was intended to encourage liberty.

By strictly limiting the authority of the general government, the founding generation hoped it would never possess enough the power to intrude on our rights.

But there isn’t any provision in the Constitution that actually empowers the federal government to protect our liberty. In fact, the founding generation would have almost certainly considered that too much power for a general government to wield.

In practice, this means the federal government really doesn’t have any responsibility to “protect your rights” beyond staying within its constitutionally delegated powers. Its obligation isn’t to act in order to protect liberty, it is to not act outside of its legitimate authority.

In the same way, the Bill of Rights was never intended to empower the federal government to protect your rights. As the preamble to the Bill of Rights makes clear, it was intended to add “further declaratory and restrictive clauses” to the Constitution “in order to prevent misconstruction or abuse of its powers.” I have often said it would be better named “The Bill of Restrictions.”

A lot of people want the Constitution to deliver something it never promised. They want the government to serve as a liberty enforcement squad. This is a dangerous proposition. In order to protect your liberty, the government must define your liberty. The best thing the government can do is stay out of the way. The Constitution created a limited federal government for that purpose.

But it’s ultimately up to us to hold it within its limits. Unfortunately, by insisting that the government “protect their rights” they are doing the exact opposite.

Tenth Amendment Center: Gov’t Worried that Mask Use Thwarts Gov’t Facial Recognition

From the Tenth Amendment Center, DHS Worried Widespread Mask Use Will Thwart Government Facial Recognition.

There has been a lot of controversy over masks, but no matter what you think about the efficacy of face coverings in preventing the spread of COVID-19, there is one advantage to masking up. The U.S. Department of Homeland Security (DHS) has expressed concern that widespread use of masks will thwart facial recognition.

A DHS “intelligence note” dated May 22 came to light in the BlueLeaks trove of law enforcement documents. The DHS Intelligence Enterprise Counterterrorism Mission Center in conjunction with a variety of other agencies, including Customs and Border Protection and Immigration and Customs Enforcement drafted the note. It “examines the potential impacts that widespread use of protective masks could have on security operations that incorporate face recognition systems — such as video cameras, image processing hardware and software, and image recognition algorithms — to monitor public spaces during the ongoing Covid-19 public health emergency and in the months after the pandemic subsides.”

According to The Intercept, the Minnesota Fusion Center distributed the notice on May 26, as protests over the killing of George Floyd were ramping up. “Email logs included in the BlueLeaks archive show that the note was also sent to city and state government officials and private security officers in Colorado and, inexplicably, to a hospital and a community college.”

The note warned, “We assess violent extremists and other criminals who have historically maintained an interest in avoiding face recognition are likely to opportunistically seize upon public safety measures recommending the wearing of face masks to hinder the effectiveness of face recognition systems in public spaces by security partners.”

The note also expresses more general concern about mask-wearing. One header reads, “Face Recognition Systems Likely to be Less Effective as Widespread Wear of Face Coverings for Public Safety Purposes Continue,”

“We assess face recognition systems used to support security operations in public spaces will be less effective while widespread public use of facemasks, including partial and full face covering, is practiced by the public to limit the spread of Covid-19.”

The debate on masking aside, thwarting facial recognition is a good thing because the federal government is aggressively pushing the expansion of its vast and increasingly intrusive facial recognition network.

THE GROWING FEDERAL PROGRAM

A recent report revealed that the federal government has turned state drivers’ license photos into a giant facial recognition database, putting virtually every driver in America in a perpetual electronic police lineup. The revelations generated widespread outrage, but this story isn’t new. The federal government has been developing a massive, nationwide facial recognition system for years.

The FBI rolled out a nationwide facial-recognition program in the fall of 2014, with the goal of building a giant biometric database with pictures provided by the states and corporate friends.

In 2016, the Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.

“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”

There are many technical and legal problems with facial recognition, including significant concerns about the accuracy of the technology, particularly when reading the facial features of minority populations. During a test run by the ACLU of Northern California, facial recognition misidentified 26 members of the California legislature as people in a database of arrest photos.

With facial recognition technology, police and other government officials have the capability to track individuals in real-time. These systems allow law enforcement agents to use video cameras and continually scan everybody who walks by. According to the report, several major police departments have expressed an interest in this type of real-time tracking. Documents revealed agencies in at least five major cities, including Los Angeles, either claimed to run real-time face recognition off of street cameras, bought technology with the capability, or expressed written interest in buying it.

In all likelihood, the federal government heavily involves itself in helping state and local agencies obtain this technology. The feds provide grant money to local law enforcement agencies for a vast array of surveillance gear, including ALPRs, stingray devices and drones. The federal government essentially encourages and funds a giant nationwide surveillance net and then taps into the information via fusion centers and the Information Sharing Environment (ISE).

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

Reports that the Berkeley Police Department in cooperation with a federal fusion center deployed cameras equipped to surveil a “free speech” rally and Antifa counterprotests provided the first solid link between the federal government and local authorities in facial recognition surveillance.

Tenth Amendment Center: A Brief History of the Freedom of Speech in America

Judge Andrew Napolitano writes at the Tenth Amendment Center A Brief History of the Freedom of Speech in America

When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists’ grievances with the British government. Notably absent were any complaints that the British government infringed upon the freedom of speech.

In those days, speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king — as Jefferson’s were in the Declaration — they constituted treason.

Needless to say, Jefferson and the 55 others who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.

Of course, the colonists won the war, and, six years afterward, the 13 states ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights. The first ratified amendment prohibited Congress from doing what the colonists never seriously complained about the British government doing — infringing upon the freedom of speech.

James Madison, who drafted the Bill of Rights, insisted upon referring to speech as “the” freedom of speech, so as to emphasize that it preexisted the government. If you could have asked Madison where he believed the freedom of speech came from, he’d have said it was one of the inalienable rights Jefferson wrote about in the Declaration.

Stated differently, each of the signatories of the Declaration and ratifiers of the Bill of Rights manifested in writing their unambiguous belief that the freedom of speech is a natural right — personal to every human. It does not come from the government. It comes from within us. It cannot be taken away by legislation or executive command.

Yet, a mere seven years later, during the presidency of John Adams, Congress enacted the Alien and Sedition Acts, which punished speech critical of the government.

So, how could the same generation — in some cases the same human beings — that prohibited congressional infringement upon speech have enacted a statute that punished speech?

To the some of the framers — the Federalists who wanted a big government as we have today — infringing upon the freedom of speech meant silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.

To the antifederalists — or Democratic-Republicans, as they called themselves — the First Amendment prohibited Congress from interfering with or punishing any speech.

Adams’ Department of Justice indicted and prosecuted and convicted antifederalists — among them a congressman — for their critical speech.

When Jefferson won the presidency and the antifederalists won control of Congress, the Federalists repealed the speech suppression parts of the Alien and Sedition Acts on the eve of their departure from congressional control, lest it be used against them.

During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North who were critical of his war efforts. During World War I, President Woodrow Wilson — whom my alma mater Princeton University is trying to erase from its memory — arrested folks for reading the Declaration of Independence aloud or singing German beer hall songs.

Lincoln argued that preserving the Union was more important than preserving the First Amendment, and Wilson argued that the First Amendment only restrained Congress, not the president. Both arguments have since been rejected by the courts.

In the 1950s, the feds successfully prosecuted Cold War dissenters on the theory that their speech was dangerous and might have a tendency to violence. Some of the victims of this torturous rationale died in prison.

The government’s respect for speech has waxed and waned. It is at its lowest ebb during wartime. Of course, dissent during wartime — which challenges the government’s use of force to kill — is often the most important and timely speech.

It was not until 1969, in a case called Brandenburg v. Ohio, that the Supreme Court gave us a modern definition of the freedom of speech. Brandenburg harangued a crowd in Hamilton County, Ohio and urged them to march to Washington and take back the federal government from Blacks and Jews, whom he argued were in control. He was convicted in an Ohio state court of criminal syndicalism — basically, the use of speech to arouse others to violence.

The Supreme Court unanimously reversed his conviction and held that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut it. The same Supreme Court had just ruled in Times v. Sullivan that the whole purpose of the First Amendment is to encourage and protect open, wide, robust, even caustic and unbridled speech.

The speech we love needs no protection. The speech we hate does. The government has no authority to evaluate speech. As the framers understood, all persons have a natural right to think as we wish and to say and publish whatever we think. Even hateful, hurtful and harmful speech is protected speech.

Yet, in perilous times like the present, we have seen efforts to use the courts to block the publication of unflattering books. We have seen state governors use the police to protect gatherings of protestors with whose message they agreed and to disburse critical protestors. We have seen mobs silence speakers while the police did nothing.

Punishing speech is the most dangerous business because there will be no end to it. The remedy for hateful or threatening speech is not silence or punishments; it is more speech — speech that challenges the speaker.

Why do folks in government want to silence their opponents? They fear an undermining of their power. The dissenters might make more appealing arguments than they do. St. Augustine taught that nearly all in government want to tell others how to live.

How about we all say whatever we want and the government leaves us alone?

Judge Napolitano: Repeal the Patriot Act

From Judge Napolitano at the Tenth Amendment Center – Repeal the Patriot Act.

I have been writing for years about the dangers to human freedom that come from government mass surveillance. The United States was born in a defiant reaction to government surveillance. In the decade preceding the signing of the Declaration of Independence, the villains were the Stamp Act and the Writs of Assistance Act. Today, the villain is the Patriot Act.

Here is the backstory.

In 1765, when the British government was looking for creative ways to tax the colonists, Parliament enacted the Stamp Act. That law required all persons in the colonies to purchase stamps from a British government vendor and to affix them to all documents in one’s possession. These were not stamps as we use today, rather they bore the seal of the British government. The vendor would apply ink to the seal and for a fee — a tax — impress an image of the seal onto documents.

All documents in one’s possession — financial, legal, letters, books, newspapers, pamphlets, even posters destined to be nailed to trees — required the government stamps.

How did the British government, 3,000 miles away, know if one had its stamps on one’s documents? Answer: The Writs of Assistance Act. A writ of assistance was a general warrant issued by a secret court in London. A general warrant does not specifically describe the place to be searched or the person or thing to be seized. It merely authorized the bearer — a civilian or military government official — to search where he wished and seize whatever he found.

The use of writs of assistance ostensibly to search colonial homes for stamps produced an avalanche of opposition that often turned to violence against the stamp vendors. The sheer cost of invading private homes fueled fears that the true purpose of the tax was not to generate revenue — though the king always needed cash — rather, it was to remind the colonists that the king was sovereign and his agents and soldiers could enter colonial homes on a whim.

Parliament repealed the Stamp Act in 1766, but it had caused lasting harm to the king. Harvard Professor Bernard Bailyn has estimated that by the late 1760s, one-third of the colonists favored secession from Great Britain, either peaceful or violent.

In 1789, six years after the American Revolution was won, the 13 colonies that had seceded combined into the United States of America under the Constitution. Two years later, the Bill of Rights was ratified, the Fourth Amendment of which was expressly written to prohibit general warrants — to assure that the new government would not and could not do to Americans what the British government had done to the colonists.

That assurance was manifested in the amendment’s requirements that only judges can issue search warrants, which must be based on probable cause of crime and which must specifically describe the place to be searched or the person or thing to be seized.

The history of the United States is the history of the growth of government and the loss of personal liberty. Thankfully, we eradicated slavery and recognized the equality of all people, irrespective of race or gender. Yet, in times of crisis, we have supinely permitted the federal government to invade our privacy on a scale never approached by the folks who brought the Stamp Act to our ancestors.

After 9/11, the George W. Bush administration offered the Patriot Act to Congress. It was crafted in secrecy and enacted in infidelity to the Constitution. Members of the House of Representatives had 15 minutes to read is 300+ pages and no time for serious floor debate. The one senator who spoke out against it was driven from office.

Section 505 of the Patriot Act permits federal agents to bypass the requirements of the Fourth Amendment and to issue their own search warrants. Those agent-written warrants are not based on probable cause of crime but rather on a representation by one agent to another of governmental needs — the same lame standard used by the secret London courts that issued writs of assistance.

Since 2001, federal agents have issued more than 300,000 of these search warrants — which they call National Security Letters — to custodians of financial records. In 2004 alone, 56,507 agent-written search warrants were issued. Those custodians include financial institutions, telecom providers, computer service providers, supermarkets, credit card issuers, health care insurers and providers, legal service providers, local and state governments, and even the Post Office.

The very concept of one federal agent authorizing another to seize records is antithetical to the Fourth Amendment and repugnant to the American Revolution.

I am writing about this now because a section of the Patriot Act will expire on March 15, and many congressional liberals and libertarians — even a few conservatives still bruised at the governmental surveillance of candidate Donald Trump in 2016 — have been contemplating structural changes to this pernicious law.

Section 215 — which is about to expire — is as fatal to freedom as is section 505. It permits designated federal judges to issue general warrants based on the old writs of assistance standard of governmental need. One of those judges signed a search warrant for the telephone records of all Verizon customers in the U.S. — at the time, 115 million of them.

Both 215 and 505 are weapons of mass surveillance and should be repealed. They are instruments of a totalitarian government, not of free people. They defy the Constitution. They presume that our rights are not natural but come from a government that can take them back. Mass surveillance produces a state that knows more about us than we do about it — one that will slowly consume our freedoms in the name of governmental needs. It already has.

Tenth Amendment Center: Oppose a Disease at its Beginning

On restraining government, from the Tenth Amendment center:

If you give politicians an inch, they’ll take a mile.

The Founders warned us about this over and over.

Take John Dickinson, for example. Known as “the Penman of the Revolution,” he was one of the leading writers in the early days of the conflict. He insisted that the colonists needed to “oppose a disease at its beginning,” before the sickness could spread.

Dickinson published a series of essays now known as Letters from a Farmer in Pennsylvania in a local newspaper. He used his pen to vigorously oppose the Declaratory and Townshend Acts.

The American colonists had effectively nullified the hated Stamp Act by refusing to enforce it and actively resisting its implementation. They defeated the mighty British empire utilizing virtually every strategy and direction available – from resolutions and declarations, to protest, resistance and even non-compliance by government officials. But the British weren’t about to concede their authority over the colonies. When Parliament repealed the Stamp Act, it passed the Declaratory Act declaring its absolute political superiority over the colonies. This Declaratory Act asserted that Parliament could make any laws binding the colonies “in all cases whatsoever.”

A year later, Parliament put its words into action with the passage of the Townshend Acts. These laws imposed new taxes on the importation of paper, paint, lead, glass, and tea, and expanded the British government’s power to fight smuggling. The Townshend Acts included the New York Restraining Act. suspending the Assembly of New York’s legislative powers as punishment for failing to fully comply with orders from the crown.

Dickinson warned that failure to confront this assertion of British power then and there would lead to dire consequences and loss of liberty down the road. In the sixth Letter from a Farmer, he argued that letting the government take on even a little bit of new power would eventually lead to bigger and bigger usurpations in the future.

“All artful rulers, who strive to extend their power beyond its just limits, endeavor to give to their attempts as much semblance of legality as possible. Those who succeed them may venture to go a little further; for each new encroachment will be strengthened by a former. ‘That which is now supported by examples, growing old, will become an example itself,’ and thus support fresh usurpations.”

He continued with this theme in the ninth essay, chronicling the ways that the British Parliament, the Crown, and English judges were expanding their authority over the colonies. He concluded the essay with a warning in the form of a Spanish history lesson.

Spain, Dickinson said, was once free. Its governance was similar to that of the colonies. No money could be raised without the people’s’ consent. But an ongoing war against the Moores required funding. The king received a grant of money to fund the fight, but he was concerned it might not be a sufficient amount to pay for the war effort long-term. So, the king asked that “he might be allowed, for that emergency only, to raise more money without assembling the Cortes.” The Cortes was the Spanish representative body — similar to the Parliament.

Dickinson noted that the proposal was “violently opposed by the best and wisest men in the assembly.” But the majority approved the measure. And thus began a slide down a slippery slope. As Dickinson described it “this single concession was a PRECEDENT for other concessions of the like kind, until at last the crown obtained a general power of raising money, in cases of necessity.”

The legislature gave an inch and the king took a mile.

Dickinson wrote:

“From that period the Cortes ceased to be useful—the people ceased to be free.”

He closed the letter with these Latin words of instruction:

Venienti occurrite morbo.

Oppose a disease at its beginning.

John Adams made a similar argument also using a Latin phrase: “Obsta principiis.” which means withstand beginnings, or resist the first approaches or encroachments. Colloquially, we would say, “nip it in the bud,” which is exactly the phraseology Adams used.

“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.”

Adams and Dickinson both recognized an important truth. When you allow a government to chip away at the limits on its power, eventually the dam will burst. You will end up with a government exercising virtually unlimited authority – arbitrary power. At that point, it becomes difficult, if not impossible, to rein it back in. Adams wrote:

“When the people give way, their deceivers, betrayers, and destroyers press upon them so fast, that there is no resisting afterwards.”

You can’t tear down a fence and then expect the animals to stay in the field. Once the fence is gone, the animals will wander. The same thing happens when we tear down fences around government power. The government will wander further and further away from its restraints and accumulate more and more power for itself. As Dickinson wrote, “Each new encroachment will be strengthened by a former.”

Politicians love to use emergencies as an excuse to expand their own power. But once the new policy is in place, it never goes away – even after the emergency has long passed. In fact, the new policy almost always becomes a springboard to expand government power even more. The Patriot Act is a perfect example. Nearly two decades after 9/11 the federal government is still using that act to justify spying on all of us all the time.

This is why we must hold the line on the Constitution: Every issue, every time. No exceptions, no excuses.

Tenth Amendment Center: Ignoring the Constitution

A couple days ago we posted an article that Jacob Hornberger had written for the Future of Freedom Foundation on the First Amendment. In Ignoring the Constitution at the Tenth Amendment Center, he reminds us of other parts of the Constitution that have been eroded and ignored over time. A constitution exists as a conveyance of authority to a government from the people it governs. It strictly limits the powers exercisable by that government. Some people believe that a constitution should be “a living document” in that the words should be re-interpreted over time to mean whatever the rulers think it should mean in the present day. This is the same as having no constitution at all. It means nothing to write things down on paper if it then becomes okay for people to “re-interpret” the text as the opposite of what was written. This is what we have today in the United States. We have a Constitution, but it has been ignored, re-interpreted, and swept under the rug. There are effectively no limits on the power of the US federal government. If you haven’t already noticed this, you haven’t been paying attention.

Constitutional violations have become so commonplace in American life that when they occur, the reaction among many Americans is ho-hum.

There are two classic examples of this phenomenon: the declaration of war requirement and gold and silver as legal tender.

Article 1, Section 8, enumerates the powers of Congress. It states in part: “Congress shall have Power To declare war.”

Article 2, Section 2, enumerates the powers of the president. It states in part: “The President shall be Commander in Chief of the Army and Navy of the United States.”

Thus, while the president is given the power to wage war, he is not given the power to declare war. The decision on whether to go to war lies with Congress. Unless Congress declares war, the president is constitutionally prohibited from waging war.

Yet, we all know that presidents ignore this constitutional restriction with impunity. They exercise both the power to declare war and wage war. There has never been a constitutional amendment authorizing this revolutionary change in our governmental structure.

Moreover, the change has come with the full knowledge and implicit consent of Congress, which has never impeached a president for illegally abrogating Congress’s power to declare war.

Additionally, despite the oath that U.S. military personnel take to support and defend the Constitution, they all blindly obey the president’s order to wage war without the constitutionally required congressional declaration of war.

Article 1, Section 10, states in part: “No state shall make any Thing but gold and silver Coin a Tender in Payment of Debts.

It goes without saying that every state in the Union blithely ignores that constitutional provision. Rather than making gold and silver coin legal tender, they all have made paper Federal Reserve notes, which promise to pay nothing, legal tender. Many Americans, including state and federal judges, act like that constitutional provision doesn’t exist.

Article 1, Section 8, states in part: “The Congress shall have Power To coin Money, regulate the Value thereof.” There is no power given to Congress to print paper money.

Yet, here we are, living under a monetary system that is based on irredeemable paper notes issued by the federal government. Many Americans, including state and federal judges, act like all this is perfectly normal, as if these restrictions on power within the Constitution don’t matter or don’t really exist.

If public officials are empowered to ignore constitutional provisions whenever they want, then what’s the point of having a Constitution? When the Framers used the Constitution to bring the federal government into existence, their aim was to establish a limited-government republic, ones whose powers were limited to those enumerated in the document. The reason they did that was to ensure that federal officials could not destroy or abridge the freedom of the American people. The Constitution was intended as a higher law that the American people imposed on their government officials. If public officials wanted to change or expand such powers, they would be required to secure an amendment of the Constitution.

Federal officials expect us to comply with their laws. Why shouldn’t they be expected to comply with our law, the law of the Constitution?

Tenth Amendment Center: McCulloch v Maryland Supreme Ct Did NOT Support Expansive Federal Power

This article at the Tenth Amendment Center discusses the McCulloch v Maryland case. Harvard Law Today earlier this year said that the 1819 case paved the way for the modern administrative case. But Constitutional scholar Rob Natelson here says that this was not the intent Chief Justice John Marshall’s opinion at the time, but rather that the case in point was a much narrower ruling.

Why McCulloch v. Maryland – now 200 years old – is not a “big government” manifesto

…There are at least two well-grounded reasons Marshall’s opinion in McCulloch is important. The first is that it clarified some basic facts about the constitutional system.

McCulloch explained that the people, not the states, created the federal government and granted its powers. As a young lawyer, Marshall had been a leading spokesman for the Constitution, particularly in Virginia. In McCulloch, Marshall explained—as James Madison had before him—that the Constitution’s legal force comes from approval by popularly-elected state ratifying conventions meeting from 1787 through 1790.

It follows that the first rule of constitutional interpretation is the understanding of the ratifiers. It is not, as some conservatives say, the “intent of the framers” or “the original public meaning.” Nor should we, some liberals contend, construe the Constitution through “evolving social standards” or novel interpretive theories.

Moreover, McCulloch clarified that under the Constitution state and federal governments operate fairly independently of each other. Neither level of government should try to dictate to the other nor obstruct the other’s core functions. Because Congress designed the national bank to assist Congress in carrying out its core functions, McCulloch voided a state attempt to tax the bank.

The second reason McCulloch is so important is Marshall’s use of established law and legal methods—rather than tailor-made theories—for interpreting the Constitution. This is noteworthy in his discussion of whether the national bank was valid under the Constitution’s Necessary and Proper Clause.

The Constitution lists the powers of Congress. These include such functions as national defense, borrowing money, taxing, postal system, the monetary system, and regulating foreign and interstate commerce. In addition to these explicit items, the Constitution adds that “The Congress shall have Power . . . To make all Laws, which shall be necessary and proper for carrying into Execution” its listed powers.

The Constitution list of explicit powers does not include chartering a national bank. In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carrying out Congress’s explicit powers.

Marshall, like other lawyers of his time, was familiar with documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments, and statutes. The phrase “necessary and proper” was common in such documents.

As used in the Constitution, the “necessary and proper” phrase meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers. These were lesser powers intended to accompany the listed ones. Lesser powers usually were incidental if they were customary or necessary to carrying out the listed functions…

…In the 20^th century, the Supreme Court cited McCulloch to uphold unprecedented federal spending and regulatory programs. Law school constitutional law courses sometimes treat McCulloch the same way.

But with all respect, this approach is the product of historical ignorance. Those who depict McCulloch as a “big government” decision generally are unaware of how the Founders understood the Necessary and Proper Clause and how the bank debates of 1791 focused on the details of incidental powers law. They usually are unaware of critical changes in the English language—such as the fact that when Marshall’s used the words “convenient”and “appropriate” they embodied narrower and tougher standards than they do today. Without that kind of historical perspective, McCulloch is a difficult case to understand…

Click here to read the entire case at the Tenth Amendment Center.