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

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.

See also EFF’s San Francisco Police Accessed Business District Camera Network to Spy on Protestors

 

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

Chief Justice John Marshall

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 20th 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.

Free Thought Project: Bill Would Bar State Enforcement of Fed. Red-Flag Gun Laws

A Senate bill has been filed in the Oklahoma Senate which would prohibit that state from enforcing any federal “red-flag” laws. The so-called “red-flag” gun laws are widely seen as unconstitutional. Current trends toward both immigration sanctuaries and Second Amendment sanctuaries harken back to the Nullification Crisis of the 1830s. The summary below comes from the Free Thought Project.

Landmark Bill Would Bar State from Enforcing Federal Red-Flag Gun Laws

A bill prefiled in the Oklahoma Senate would prohibit state enforcement of any federal “red-flag” laws, setting the foundation to nullify any such laws in practice and effect.

Sen. Nathan Dahm (R-Broken Arrow) filed Senate Bill 1081 (SB1081) for introduction in the 2020 legislative session. Under the proposed law, the Oklahoma legislature would “occupy and preempt the entire field of legislation in this state touching in any way federal or state extreme risk protection orders against or upon a citizen of Oklahoma to the complete exclusion of any order, ordinance or regulation by any municipality or other political subdivision of this state. “ In effect, only the Oklahoma legislature could pass any type of so-called red-flag law effective in the Sooner State.

The legislation also would declare that any federal red-flag law “which would infringe upon a citizen’s Constitutionally-protected rights including, but not limited to the right to due process, the right to keep and bear arms and the right to free speech, shall be null, void, unenforceable and of no effect in the state of Oklahoma.”

These declarations would have very little effect in practice, but SB1081 includes provisions that would make federal red-flag laws nearly impossible to enforce in Oklahoma. The proposed law would prohibit any  Oklahoma agency or any political subdivision from accepting any federal grants to implement any federal statute, rule or executive order, federal or state judicial order or judicial findings that would have the effect of forcing an extreme risk protection order against or upon a citizen of Oklahoma.

It would also make it a felony offense for any individual, including a law enforcement officer, to enforce a federal red flag law. In effect, this would bar state and local police from enforcing a federal red-flag law.

EFFECTIVE

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 in effect many federal actions. 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.”

Enforcing a red-flag law would be no different.

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.

Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state refusing to cooperate with federal gun control would make federal gun laws “nearly impossible” to enforce.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in the implementation and enforcement of a federal red flag law, states and even local governments can help bring these unconstitutional acts to their much-needed end.”

LEGAL BASIS

The state of Missouri can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.

Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“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 policy making 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”

WHAT’S NEXT

SB1081 will be officially introduced and referred to a committee when the Oklahoma legislature convenes on Feb. 2.

Tenth Amendment Center: The Presidency is Too Powerful

The following article was written by Trace Mitchell at the Foundation for Economic Education, but republished at the Tenth Amendment Center. In The Presidency is Too Powerful Mitchell lays out an explanation for how President after President has drawn more power to the office. And his analysis there is correct – Presidents have sought to increase the power of the office. However, after giving an example of President Trump’s rhetoric over China Mitchell says “That is how we got to where we are today.” This, unfortunately, ignores the fact that Congress on its own initiative has shifted more power to the executive over time through their desire to escape responsibility. Mitchell touches on it when he talks about Congress delegating their power, but he only puts it in terms of a response to Presidential rhetoric. Congress has accomplished this escape from culpability by unconstitutionally transferring their power and duty to pass all laws to various administrative agencies in the executive. The executive branch now writes administrative law which is enforced by executive agents and judged in executive administrative courts.

This problem was being noted as early as 1944 in a Virginia Law Review article titled “Administrative Law: A Threat to Constitutional Government?” There are times when Congress finds itself at an impasse over certain issues. They know that an action must be taken, but it get done in Congress because of political interests. Sometimes they are able to pass this off to independent committees which decide the outcome and Congress decides that they will vote yea or nay on the committee’s decision without subjecting it to further debate. Other times, though, Congress will simply pass a law that authorizes an executive agency to create the laws covering an area. Congress wins because they can tell their constituents that they acted to resolve an issue, but any negative outcomes can be blamed on the executive agency. Representatives are happy because they can’t be held accountable. Presidents are happy because the executive branch has more power. Citizens lose doubly.

An excerpt from The Presidency is Too Powerful:

Even if Trump does not have the power to directly order all U.S. firms to cease trade with Chinese corporations, the discretionary power held by the executive branch is strong—so strong that he may be able to achieve a similar outcome through other means. He could impose massive tariffs so large they essentially act as de facto prohibitions. He could threaten noncompliant firms with harsher regulations or enforcement that is more aggressive. He may be able to achieve his goals indirectly even if he cannot achieve them directly.

Either way, rhetoric like this shifts the Overton window further and further. We begin to accept things that seemed entirely unacceptable not long ago. We become desensitized. The dividing lines between the different branches of government become increasingly blurred. That is how we got where we are today.

Executive overreach is not a new phenomenon, but it does have an accumulative effect. Each president is able to get away with a little bit more, typically under the guise of an “emergency.” Slowly they amass greater and greater power. Slowly the concept of strictly limited, enumerated powers deteriorates. While each president since the founding has attempted to increase the scope of their power, this behavior took a new form after Woodrow Wilson.

Wilson was able to take advantage of an overly ambitious president’s best friend: war. As FDR’s Attorney General Francis Biddle said, “The constitution has not greatly bothered any wartime president.” Wilson began by going after one of the most fundamental constitutional guarantees: freedom of expression.

After being inaugurated into his second term, Wilson asked Congress to give him the authority to censor the press during times of war, to criminalize the promotion of America’s enemies, and to combat literature that was “of a treasonable or anarchistic nature.” Congress listened and passed the Espionage Act of 1917, which gave Wilson almost everything he asked for except the ability to censor the press. However, just a year later the Espionage Act was amended with the Sedition Act of 1918, which provided for more government surveillance of its citizens and further limited speech that was viewed as detrimental to the government. Wilson finally amassed most of the power he wanted.

Franklin D. Roosevelt continued this legacy of expanding executive power during times of distress. In fact, during his first week in office, FDR used the Trading with the Enemy Act of 1917—a law granting the president vast economic powers during times of war or national emergency—to order a “bank holiday” in order to prevent bank runs. This was particularly aggressive because the act did not give him the power to regulate the domestic economy. Since FDR, executive power has continued to expand and grow, increasing more and more under each successive president. Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush Sr., Clinton, Bush Jr., Obama, and Trump have each used and built upon the powers seized by their predecessors.

The Founders were afraid of this exact scenario. James Madison, often referred to as the “Father of the Constitution,” wrote that power “is of an encroaching nature” and thought “it ought to be effectually restrained from passive the limits assigned to it.” To combat this tendency, he created a system of checks and balances where each branch has significant authority over their domain and can limit the power of the other branches. Or, in the words of the great modern philosopher Kanye West, “No one man should have all that power.” However, Madison did not predict that branches would delegate their power to the extent they have with legislation like the Espionage Act or the International Emergency Economic Powers Act.

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

Tenth Amendment Center: How Our Constitution Was Supposed to Work

Constitutional scholar and co-author of The Origins of the Necessary and Proper Clause  and The Original Constitution Rob Natelson has written an article based on information from newly re-published essays by founder Tench Coxe about some limitations on federal power that were known and spelled out by the founding fathers.

How our Constitution was supposed to work: new evidence comes to light

Judging by the promises of presidential candidates, you might think the federal government is designed to fix whatever ails us: health care, education, crime, infrastructure, the common cold.

But the Constitution doesn’t grant the federal government such unlimited authority. And neither Congress nor the presidency nor the courts were created to exercise it.

The Constitution fashioned the federal government to address a limited number of activities, contained in the document’s “enumerated powers.” The remainder were exclusively the domain of state and local government and the private sector. This system of divided authority is called “federalism.”

…Despite the Constitution’s federal structure, many in the founding generation didn’t think it limited the central government sufficiently. They wanted to be able to govern themselves in their own states and local communities. They didn’t want Congress or federal judges or officials imposing uniform policies on the entire country.

These members of the founding generation had good reasons for fearing centralized power. They knew their history: Concentrated power usually grows into oligarchy or dictatorship. They questioned whether Congress would have the information or judgment necessary to tailor laws for every nook and cranny in the nation. They recognized that when government remained local, citizens enjoyed more say in how it was run. If someone was severely disaffected with state policies, he always could move to a different state.

This option of moving away is a vital safety valve. Without it, there is no practical way to vent anger among persistent political losers. Anger gives rise to hate: Hate fosters divisiveness and repression and, and in extreme cases, civil war.

Indeed, modern federal efforts to impose uniform “solutions” on the entire nation may be a leading cause of today’s toxic political environment.

…Coxe’s essays itemize many of the activities over which the Constitution granted the federal government little or no jurisdiction. Among them were social services (i.e., care for the poor and health care), education, religion, real estate, local businesses, most roads and other infrastructure, nearly all criminal law matters, and most civil court cases.

When people believed government should regulate those areas, the Constitution mandated that they turn to state and local government. No fleeting national coalition would be permitted to dictate to the entire country…

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