Wednesday, November 25, 2009

The Tenth Amendment

I'm a strong supporter of the Constitution and State's rights.  The Constitution is a framework for the Federal government.   The People created the Federal government to handle issues they felt we better handled uniformly throughout the Union.  As always I highly recommend you read the Constitution as it's rather brief and easy to read, at least for a legal document.  You will see that it quite clearly lists the powers of the Federal government, and then states that any power not given to the Federal government is retained by the States and the People.  The exact quote is from the 10th amendment:
"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."

Pretty simple.  If the Constitution doesn't say the Federal government can do something then it can't.  Around this time you may be bringing up the point that the Federal government does in fact do whatever it wants, with little regard for the limited list of powers it legally has.  The reason is simply because it can.  Without question the Federal government is the most powerful and wealthy entity that has every existed.  Every year it spends a few trillion dollars (this is what $1 trillion in hundred dollar bills looks like).

I won't go into more detail as to why the States should have more power than the Federal government.  I've already written about it in great detail.  It's a moot point though, because regardless of what you think, the fact remains that legally the States do retain all powers not given to the Federal government.

If you think the Federal government should have a power which it currently does not then the correct procedure would be proposing a Constitutional amendment to grant it that power.  The easy way though would be for the Federal government to just do it since no one can stop them.

One classic example of the Federal government regulating something it has no authority to do so is the regulation of drugs.  In 1919 the 18th amendment banned alcohol in the US.  The Federal government knew it had no power to outlaw alcohol so an amendment was passed giving it that power (actually the amendment just outlawed it outright).  The 18th amendment was latter repealed with the 21st amendment.  When an amendment is passed it becomes part of the Constitution, and the only thing that can overrule the Constitution is a new amendment.

So what does this have to do with drug laws?  Well there is no amendment giving the Federal government the power to regulate drugs.  The reason is that by the time the US got around to seriously regulating drugs the Federal government had usurped enough power to pass the unconstitutional laws.  Still the Federal government doesn't openly admit it disregards the Constitution, so it claimed that drug laws were justified by the infamous commerce clause.

The commerce clause is a power granted to Congress in Article I, Section 8, which states:
"The Congress shall have Power To... regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

The key here is that Congress can regulate commerce among the several States.  How in the world does that grant it the power to regulate anything which is produced, sold, and used entirly within one state?  Well I'm glad you asked.

"Wickard v. Filburn, 317 U.S. 111 (1942), was a U.S. Supreme Court decision that dramatically increased the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the government's scheme permitted. Filburn was ordered to destroy his crops and pay a fine to the government for being too productive.

The Supreme Court, interpreting the United States Constitution's Commerce Clause (which permits the United States Congress to "regulate Commerce . . . among the several States") decided that, because Filburn's wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn's production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.

This was a dramatic reversal of over 150 years of prior decisions ("precedent") restricting the federal government's power to regulate commerce, which previously had been limited to such areas as transportation across state boundaries on roads and rivers, actual movement of goods between states, and prohibition of punitive taxes imposed by a state on goods from another."

To summarize the Federal governments said it could regulate something that you produce for personal use because by producing it yourself and not buying it via interstate commerce you are affecting interstate commerce.

If this is the first time you have ever heard this I feel you really need to let it sink in.  I recommend rereading the quote from Wikipedia.

A good question to ask now is, if this is a valid argument, what can't the Federal government regulate?  If the answer is nothing, then why is there even a list of powers given to the Federal government at all?  As this is the argument used to justify drug laws another good question is, how you can affect interstate drug commerce when there is no such thing as legal interstate drug commerce?

There has been a recent trend by States to reclaim some of their power from the Federal government.  Which is surprising given the general apathy of everyone to this.  The recent Real ID act is a good example of this.

Another recent trend has been Firearms Freedom Acts which have passed in a couple states.

These state laws say that any firearm manufactured and sold in state is exempt from Federal regulations.  They are carefully worded as they are intended to go to a long legal battle.  When Tennassee passed one of these laws the assistant director of the ATF wrote an open letter in which he wrote:
"The Act purports to exempt personal firearms, firearms accessories, and ammunition manufactured in the State, and which remain in the State, from most Federal firearms laws and regulations. However, because the Act conflicts with Federal firearms laws and regulations, Federal law supersedes the Act, and all provisions of the Gun Control Act and the National Firearms Act, and their corresponding regulations, continue to apply."

It's fun that he brings up laws superseding other laws.  Someone should make him aware of the fact that the Constitution supersedes Federal laws, thus the Federal law is null and void.

I'd like to point out that I purposely choose two topics that many people feel differently about (drug laws and gun laws).  The point is that regardless if you like drugs or guns the Federal government has no right regulating them.  One of the reasons the Federal government has been able to get away with so much is that the people who support the laws are willing to ignore the fact that they are illegal if it gets them what they want.

The fact is that in the short term allowing the Federal government to regulate something it has no right to, but that the population as a whole wants it to, may seem like a harmless way to by pass the difficult process of an amendment or getting 50 separate state laws passed.  The problem is that this slowly gives the Federal government more and more power.  Even if you believe the current Federal government has the People's best interest at heart, history shows that no government remains good forever.  The threat of a government gone bad that has too much power is a greater threat than any of the things that the Federal government gets away with regulating.

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