Friday, February 15, 2008

The Constitution and States' Rights

(This article is the third in a series. The earlier articles can be read HERE and HERE and HERE.)
Even though the Constitution clearly specified that power was left in the hands of individual states, three colonies/states thought it was necessary to take additional precautions to make this point clear. Thus, the states of New York, Rhode Island and Virginia, each included in their written ratifications of the Constitution statements on the subject of a state’s right to secede from the new union.

New York’s ratification read in part: “That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness…" Virginia’s read in part: ‘…the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them [the Virginians] whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will…

The states which did not pass specific resolutions such as these still operated with the underlying premise. The historian John Dwyer tells us that, “during the 18th and 19th centuries in which these events took place, the term ‘state’ – which was usually captialized as ‘State’ – connoted the idea of a distinct nation or country more than it did a small regional division of a nation as it now does.”

Constitutional Concerns

The Anti-Federalist, Arthur St. Clair, believed that the constitution did not go far enough to preserve freedom. “…he was a strident anti-Federalist, believing that the proposed federal constitution would eventually allow for the intrusion of government into virtually every sphere and aspect of life. He even predicted that under the vastly expanded centralized power of the state, the taxing powers of bureaucrats and other unelected officials would eventually confiscate as much as a quarter of the income of the citizens – a notion that seemed laughable at the time but that has proven to by ominously modest in light of our current governmental leviathan.” (The Patriot’s Handbook, p. 229). St. Clair eventually renounced his American citizenship because he believed that the U.S. constitution, with its emphasis on rights, would be the undoing of the great experiment in liberty. “I foresee the day," he said, "when rights will subsume responsibilities, where the poor and the despised will become wage slaves of the elite and the mercantilism that we have fought against, and the tyranny that we have stood against, will be swallowed by the average American citizen and they will call that freedom.

Patrick Henry (picture below) was a more moderate anti-federalist than Arthur St. Clair. But he still had concerns about the constitution.

Henry was concerned that the ‘general welfare’ clause in the constitution’s preamble might one day be interpreted to authorize more federal power than the framers intended.

Thomas Jefferson wrote to Joseph Priestley in 1802 recollecting similar reservations:

"I was in Europe when the Constitution was planned, and never saw it till after it was established. On receiving it, I wrote strongly to Mr. Madison, urging the want of provision for... an express reservation to the States of all rights not specifically granted to the Union."

To keep that from happening, the 10th amendment was added to the American constitution.

The Tenth Amendment

The 10th amendment reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Put simply, it is illegal for the federal government to exercise power in a state unless the constitution specifically grants the federal government that authority. As Thomas Woods writes,

“The Tenth Ammendment gauranteed the states’ rights to self-government. If the states had not delegated a particular power to the federal government, and if the Constitution had not forbidden the power to the states, then it remained as reserved to the states or the people. For Thomas Jefferson this was the cornerstone of the entire Constitution. Its presence in the Bill of Rights serves to remind us of the importance of self-government in the minds of Americans of the early republic.

"Since the states existed prior to the federal government, they were the source of whatever power the federal government had. Thomas Jefferson determined the constitutionality of proposed legislation on this basis: If he did not find the power spelled out in Article I, Section 8, then it remained reserved to the states. It would be unconstitutional for the federal government to exercise the proposed power. If the Tenth Amendment were stil taken seriously, most of the federal government’s present activities would not eist. That’s why no one in Wshington ever mentions it.”

Madison Bows to Tenth Amendment

On the eve of his departure as president in 1817, President Madison vetoed a bill authorizing federal expenditures to pay for roads and canals. In explanation, Madison said that although he personally thought it was a good idea to use federal money to finance these projects, the constitution had not actually given the federal government this authority. He said that the constitution would have to first be changed and then he could legally agree to use federal money to pay for roads and canals.

The reason it is illegal for the government to use federal money to pay for roads is because the 10th amendment prohibits the federal government from exercising power in a state unless the constitution specifically grants the federal government that power.

One can only wonder what Madison would have thought if he saw the situation today, where most of the federal laws assume authority over areas not delegated to federal government by the constitution. In 1792, Madison wrote,

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress... Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”

The First Amendment

What many people - including conservative people - today do not grasp is that the whole point of the constitution was NOT limited government, but limited federal government. Misunderstanding this basic points leads to further misunderstand about the constitution. For example, how many times have you heard that the Constitution gives citizens the right to free speech, free press and free religion? It doesn’t. The 1st Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While on the surface these words seem to guarantee free religion, at the time it was taken to simply meant that Congress - the federal government - couldn’t interfere with the press or religion of any given state. But the individual states were free to regulate as much as they wanted to in those areas. The same is true of free press. Whether there is a free press or not is something the constitution leaves completely open to the individual states. The constitution does not guarantee free press, it only guarantees that the government in Washington will not pass any laws about it. It was actually assumed that the individual states could restrict free press. As Thomas Jefferson said in a letter to Abigail Adams in 1804: “While we deny that Congress has a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right to do so.” Similarly, it was assumed that the government of individual states would pass laws about religion. The 1st amendment was simply telling the Feds to leave the states alone. As Thomas Jefferson said, referring to religion, “It must rest with the states as far as it can be in any human authority.”

Because the founding fathers had confidence in self-government, they were more worried about the central government becoming tyrannical than the small local government of the individual colonies or states. It was assumed that the individual states, because they were democracies, would always tend towards freedom rather than oppression, but it was not assumed that about the federal government. On the contrary, they were suspicious of large overarching systems that, by virtue of being so large and powerful, tend towards corruption. Patrick Henry summed it up well when he said,

The constitution is not an instrument for government to restrain the people but an instrument for the people [i.e. self-governing colonies] to restrain the government, lest it come to dominate our lives and our interests and everything in our lives and our interests.

Living and Breathing Document?

The founding fathers were worried that future generations of Americans would not allow themselves to be bound down by the chains of a literal reading of the Constitution. The supreme court was intended to safeguard against government interpreting the constitution in a way that was inconsistent with their original aims and intent. One of the purposes of the judicial branch was to prevent someone like Al Gore or Hillary Clinton coming to power and claiming that the constitution is a ‘living and breathing document’ fluid enough to be adapted to the changing values of the contemporary community (which in practice means that the constitution can simply mean whatever you want it to mean). Thus, Thomas Jefferson emphasised that “In questions of power, then, let no more be heard of confidence in man, but bind him down by the chains of the Constitution.” Compare Jefferson's words to those of Al Gore:

You know, I believe the Constitution is a living and breathing document and that there are liberties found in the Constitution such as the right to privacy that spring from the document, itself, even though the Founders didn't write specific words saying this, this, and this, because we have interpreted our founding charter over the years and found deeper meanings in it, in light of the subsequent experience in American life of the last 211 years of our republic, and a strict constructionist, narrow-minded, harkening back to a literalist reading from 200 years ago, I think that's -- I think that's a mistake. And I would certainly not want to appoint any justices that took that approach.” (Al Gore, March 14, 2000)

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