What Happened To The Tenth Amendment?

James Madison, often referred to as “the father of the Constitution,” wrote in The Federalist Papers, No. 45, pp. 292–93, that: ”The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”

The Tenth Amendment is similar to an earlier provision of the Articles of Confederation that states: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Unfortunately, the Supreme Court and the rest of the federal government have used the Necessary and Proper Clause** and the Commerce Clause*** of the Constitution to strip away power from the states and rights from the people almost from the very beginning of the new Republic.

In McCulloch v. Maryland, 17 U.S. 316 (1819), the Supreme Court interpreted the Necessary and Proper Clause to expand the authority of Congress to all areas related to one of its enumerated powers. Since then, the Supreme Court has rarely declared a federal law unconstitutional for violating the Tenth Amendment. To the contrary, Congress and the Supreme Court have used the Commerce Clause to expand greatly the power and scope of the federal government.

For example, in Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court, relying on the Commerce Clause, affirmed a decision that required a farmer to destroy his crops and pay a fine for producing wheat for his own use because his production exceeded a quota set by a federal regulation. Because the farmer’s production of wheat reduced the amount of wheat he bought for chicken feed, and because wheat was a commodity that was traded between the states, the farmer’s production affected interstate commerce and, therefore, could be regulated by the federal government.

Most recently, the Supreme Court used the Commerce Clause in Gonzales v. Raich, 545 U.S. 1 (2005), to affirm the federal government’s right to seize and destroy a California woman’s medical marijuana crop even though she had the right to grow it under California law, grew it strictly for her own use, and never sold any. The Supreme Court based its inane decision on the Commerce Clause because growing marijuana might possibly affect the interstate market for marijuana, even if it clearly was not grown for that purpose. In 2010, President Obama’s administration used the Commerce Clause as the legal basis for its Patient Protection and Affordable Care Act, which requires all American citizens to buy health insurance.

The United States of America—people have lost sight of what that really means. The name is spoken so often by self-proclaimed patriots yet so rarely analyzed by those singing its praises. That name symbolizes the founding of our country and its most important principle. The United States of America was made up of semiautonomous states that banded together for mutual security, trade, and the preservation of certain fundamental rights. Federal law had to override state law in order to enforce the federal government’s limited powers, and the language of the Tenth Amendment made it quite clear how limited those powers were supposed to remain. As Jefferson, the author of the Declaration of Independence and a man who undoubtedly had a dramatic impact on the Constitution, so succinctly put it: “The Tenth Amendment is the foundation of the Constitution.”

Two of the most important protections people have from government are the right to resist tyranny and the right to leave if resistance is unobtainable. States’ rights created both of these abilities. According to the Constitution, each citizen is allowed to bear arms, and each state is allowed to have an independent militia. That provides twofold protection: people can resist their state government if it becomes tyrannical, and the states can band together to resist the federal government.

Citizens need both of these rights, because while they may be able to fight their state government, the people in just one state lack the technological weaponry and the numbers to have a reasonable chance of success against a federal army. Today, gun-control laws symbolize the end of any possibility of a statewide revolution, and the subservience of state militias to the federal government ends any possibility of succession or a national revolution, as the Southern states learned between 1861 and 1865.

Therefore, the only defense against tyranny is the right to move to another state that has laws independent of the federal government. The autonomy of each state provides a diversity of laws and customs to fit every citizen’s social needs and wants. When the United States was founded, it was like having thirteen different countries to choose from. If one state became tyrannical, a citizen could just pack up and move to another. That forced states to compete with each other for citizens. Some states lowered taxes, increased personal freedom, and offered other incentives to attract or retain citizens.

When a number of the states rebelled and withdrew from the United States to form their own “more perfect union,” the federal government launched the Civil War. Historians and educators have rewritten the history to claim that the Civil War was fought to free the slaves, but nothing could be further from the truth. The Civil War was fought over states’ rights. In fact, several states that fought for the Union were slave states, and almost all the Northern states, with only a few exceptions, were more hostile to the black population than the Southern states. In 1860, a runaway slave entering Illinois—Lincoln’s home state—would have been promptly arrested, fined, and jailed along with anyone who harbored him. If he could not pay the stiff fine, he was put to work as a convict and treated substantially worse than any slave in the Southern states.

During the Civil War, Lincoln usurped executive powers to an unprecedented extent. Under him, the government instituted the income tax and numerous other laws that expanded the power of the federal government. Abraham Lincoln also suspended habeas corpus and took other measures to diminish civil liberties substantially. Due to his assassination, Lincoln wasn’t able to return states’ rights after the war was over. His successor never did either. And each president afterward followed Lincoln’s example by giving more power to the federal government at the expense of the states, which became more like counties than autonomous entities in an alliance for security and economic prosperity.

Once the federal government began to pass tax laws and other laws that encroached on the powers reserved for the states, Americans lost the ability to choose to live in different semiautonomous states. Of course states have different laws, but federal laws have come to dominate and diminish them. Given the dramatic expansion of the federal government’s powers, it should be no surprise that its budget has grown from almost nothing into a monster that dwarfs the budgets of state governments.

In order to feed the beast, the federal government passed tax laws that are on average five times higher than the tax rates of the individual states. To enforce these onerous laws, the government created the Internal Revenue Service—the very symbol of oppression and tyranny for any citizen who has had the misfortune to deal with it.

When any rebellious state wishes to exercise even a limited amount of independence, the federal government uses its massive fiscal power to coerce it to toe the federal line. The federal government is never hesitant to withhold grants for education or subsidies for highway construction projects and law enforcement on which the states have come to rely. The shift from state power to federal power destroyed the Founding Fathers’ plans to keep the federal government from becoming excessively powerful and oppressive.

Given the elimination of the Tenth Amendment in all but name, The Federal Democracy of Part of North America would be a far more appropriate and accurate title for our country than the United States of America. US citizens claim that the Constitution is the rule of law yet pay no attention to its words. They hold up the Founding Fathers’ wishes as the most important direction for their country yet disregard them at will. The founders of the United States of America recognized the faults of government. They understood that the greatest danger to the people is posed by their own government.

Not only has the federal government curtailed the ability of states to attract citizens of other states by eliminating many of the differences between them, but it has also passed laws that severely limit a citizen’s ability to renounce his American citizenship and move elsewhere. If a citizen wishes to renounce his American citizenship, the United States will not recognize his act unless he files forms with the Internal Revenue Service and subjects himself to a 30 percent exit tax on high net–worth individuals choosing to renounce their US citizenship or give up their green cards. Many legislators refer to anyone choosing to leave the United States as a traitor.

The federal government has also pressured other nations to modify or eliminate immigration laws that enable an American citizen to renounce his American citizenship and become a citizen elsewhere. If an American citizen is prohibited from becoming a citizen elsewhere, he cannot renounce his American citizenship. This private, quiet war has been very effective. There are only two nations left on the planet that allow Americans to become citizens in less than a year, and both are tiny Caribbean countries that are under increasing pressure by the United States to revise their immigration laws.

A great nation attracts the best citizens of other nations and retains its own not by erecting onerous barriers to departure but by offering a place to live that is better than the rest. The America of our Founding Fathers did not have to make it difficult for people to leave, because America was the “land of the free.” For most of its history, it was the best place on earth to live, so no one wanted to leave. Any nation that does all it can to prevent its citizens from leaving cannot possibly call itself a free nation. And any nation that has to browbeat other nations to help it keep its own citizens prisoners is pathetic.

*McDonald v. City of Chicago, Ill.,—S.Ct.—, 2010 WL 2555188. In addition to the main opinion written by Justice Alito, two concurring and two dissenting opinions were written by Justices Scalia, Thomas, Stevens and Breyer. Justice Breyer’s dissenting opinion was supported by Justices Ginsburg and Sotomayor.

**US Constitution, Article I, Section 8: Powers Granted to Congress. “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

***US Constitution, Article I, Section 8, Clause 3. One of the enumerated powers of the federal government is known as the Commerce Clause: “To regulate Commerce with foreign