Posted on 06/27/2003 5:29:27 PM PDT by Djarum
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As the federal government continues to unlawfully expand its powers beyond those granted by the Constitution and transform itself into the national form of government rejected by the Founders, many constitutionally astute Americans are asking "what happened to the Tenth Amendment?" Since its adoption in 1791, the Tenth Amendment has been viewed as a barrier to any attempt by the federal government to overstep its constitutional authority. The Amendment states: 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. If the Amendment reserves every power not delegated to the federal government to the States or the people, then it follows that the Constitution established a federal government of limited enumerated powers. This system of government, coupled with the additional restraint enumerated in the Tenth Amendment, was designed as an impregnable shield to protect the States and the American people from any abuse of power by the federal government. Federal politicians, driven by the acquisition and retention of power, discovered that the prohibition enumerated in the Tenth Amendment only applies when the federal government attempts to exercise a power not delegated by the Constitution. It cannot be invoked to prohibit Congress from exercising a lawful power granted by the Constitution. This gave the politicians an idea. If they could get their political appointees in the federal judiciary to redefine or expand the scope of existing provisions in the body of the Constitution, they could circumvent the additional limitations placed on their power by the Tenth Amendment. This is precisely what has happened. During President Franklin Roosevelt's "New Deal" assault on the Constitution, his administration did not want to expose its power grab to the scrutiny of the States and the American people. He needed to find a way to acquire more power without resorting to the amendment process outlined in Article V of the Constitution. His administration, using the threat of a Court packing scheme, succeeded in getting the United States Supreme Court to judicially amend two key provisions in the body of the Constitution. The unconstitutional modification of one of these provisions has given the federal government virtually unlimited power over every aspect of human existence in the United States and all but nullified the Tenth Amendment. Commonly known as, the Commerce Clause, this provision grants Congress the power to "regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes…" In his 1913 book, The Framing of the Constitution, Max Farrand explained, in part, why this provision was incorporated into the Constitution: Pending a grant of power to congress over matters of commerce, the states acted individually. A uniform policy was necessary, and while a pretense was made of acting in unison to achieve a much desired end, it is evident that selfish motives frequently dictated what was done. Any state which enjoyed superior conditions to a neighboring state was only too apt to take advantage of that fact. Some of the states, as James Madison described it, 'having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, through whose ports their commerce was carried on.'... The Americans were an agricultural and trading people. Interference with the arteries of commerce was cutting off the very life-blood of the nation and something had to be done. During the debates in the Federal [Constitutional] Convention, Oliver Ellsworth stated: The power of regulating trade between the States will protect them against each other. James Madison reiterated this point in the Convention as follows: [P]erhaps the best guard against an abuse of the power of the States on this subject, was the right in the General Government to regulate trade between State and State. The purpose of the words "regulate commerce…among the several States" was to establish a free trade zone between the several States. This provision granted Congress the power to make regular, commerce between individual State and individual State. The power enumerated pertains to the several States. It did not grant Congress the general power to control individuals or private business engaged in commerce. The emergence of the Commerce Clause as a "new" source of federal power was addressed in a speech by Alfred Clark before the Oregon Bar Association on September 2, 1943. Mr. Clark stated, in part: Today, in a very real sense, law no longer governs the American people. They are governed by regulations, orders and directives issued by one or the other of our multiple Federal bureaus. I am not now referring to war regulation and the like, but to conditions existing before the war, and which, unless the trend is checked, are likely to continue and to intensify after the war is over. This has been accomplished, to a very large extent, through a new and, in many aspects, a startling interpretation of the commerce clause of the Federal Constitution, which is now being used to obliterate the States and convert our system into a highly centralized form of government, exercising uncontrolled police power in every State, over all, or nearly all, local affairs and industries. The commerce clause of the Constitution is now pressed into service as the basis for asserting the power of unlimited control and all regulation of all local and State affairs. Mr. Clark stated that through a startling new interpretation of the Commerce Clause, the federal government was attempting to obliterate the system of limited government established by the Constitution and regulate every aspect of human existence throughout the United States. What was this new interpretation he was referring to? In order to answer this question, it is necessary to return to Mr. Clark's speech. After discussing several decisions by the Supreme Court, Clark explained the chain of causation, as defined by the Court, to be followed in determining what is interstate commerce under the "new" interpretation. He used the following example to illustrate the danger of the decisions by the Court: This may sound to you like a soporific nursery rhyme. Not so. On the contrary it is modern judicial logic… Indeed, if Junior decides to emulate Popeye and insists upon a double portion of spinach at the dinner table, thus increasing the demand on the market, and lessening the supply to meet the demand, his act may so affect interstate commerce as to bring him within the ambit of Federal control. The simple act of consuming food, according to decisions by the United States Supreme Court, can be used by the federal government as a pretense to bring an individual within the scope of federal control. Under this rewrite of the Constitution, the federal government can regulate, or criminalize, any activity that substantially affects, or has the potential to substantially affect, interstate commerce. If this sounds like an outburst from a deranged mental patient, then consider the following statements by Supreme Court Justice Clarence Thomas in a concurring opinion in U. S. v. Lopez (1995): We have said that Congress may regulate not only 'Commerce…among the several states,'…but also anything that has a 'substantial effect' on such commerce. This test, if taken to its logical extreme, would give Congress a 'police power' over all aspects of American life. Under our jurisprudence, if Congress passed an omnibus 'substantially affects interstate commerce' statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional. Justice Thomas went on to state that under the substantially affects interstate commerce test adopted by the Court, "[c]ongress can regulate whole categories of activities that are not themselves either 'interstate or commerce.'" Since it is impossible to discuss all of the legislation that has been passed under the perversion of the Commerce Clause, the author decided to provide a brief example of how the federal government has used this clause to circumvent the Tenth Amendment. The Constitution does not grant the federal government the power to regulate firearms or firearm owners within the several States. Under the Constitution, there are no general federal firearms crimes within the States. Thus, if the federal government attempted to enforce one of these statutes, the offended individual should be able to successfully invoke the prohibitions enumerated in the Tenth Amendment. In the recent Emerson case, that was hailed by the firearms community as a victory for the Second Amendment, Mr. Emerson's attorney attempted to invoke a Tenth Amendment defense. He claimed the federal statute being applied against his client "unconstitutionally usurps powers reserved to the states by the Tenth Amendment." This assertion was constitutionally correct. However, the Court rejected this argument because the Commerce Clause is a delegated power and the Amendment cannot be invoked to prohibit Congress from exercising a power granted by the Constitution. Contrary to the pronouncements from the firearms community, the Emerson case was actually a huge loss for firearm owners because the Court sustained the federal government's power to unconstitutionally impose criminal sanctions on firearm owners through the Commerce Clause. Most firearm owners are unaware of the real issue in the Emerson case. Mr. Emerson was prosecuted because, while under a restraining order issued by the State of Texas, he "unlawfully possessed 'in and affecting interstate commerce' a firearm, a Beretta pistol, while subject to the above mentioned September 14, 1998 order, in violation of 18 U.S.C. § 922(g)(8). It appears that Emerson had purchased the pistol on October 10, 1997, in San Angelo, Texas, from a licensed firearms dealer." If you look at the statement by the Court, Emerson was prosecuted because he was in possession of private property that allegedly moved in interstate commerce years before his "so-called" crime. This should be a wake-up call for the firearms community. If Congress wanted to ban or criminalize the possession of all firearms throughout the several States, it could simply adopt a statute that made it unlawful to possess a firearm that moved in, or affected, interstate commerce. The definition of interstate commerce is now so broad that such a law would affect every firearm and every firearm owner in the United States. If this unconstitutional expansion of federal power through the Commerce Clause is not halted and reversed, the federal government will eventually obliterate the system of limited government established by the Constitution and seize total control of every aspect of life in the United States. And, since the Commerce Clause is a delegated power, the American people will not be able to invoke the Tenth Amendment to protect them. |
I think you need to dig a bit deeper. The particular case cited on this point in Reid is Whitney v. Robertson, 124 U.S. 190 (1888), which is quite clear that treaties are not nearly as omnipotent as you make them out to be...
But, independently of considerations of this nature, there is another and complete answer to the pretensions of the plaintiffs. The act of congress under which the duties were collected, authorized their exaction. It is of general application, making no exception in favor of goods of any country. It was passed [124 U.S. 190, 194] after the treaty with the Dominican republic, and, if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must control. A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance. In Taylor v. Morton, 2 Curt. 454, 459, this subject was very elaborately considered at the circuit by Mr. Justice CURTIS, of this court, and he held that whether a treaty with a foreign sovereign had been violated by im; whether the consideration of a particular stipulation of the treaty had been voluntarily withdrawn by [124 U.S. 190, 195] one party, so that it was no longer obligatory on the other; whether the views and acts of a foreign sovereign had given just occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise,- were not judicial questions; that the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws. And he justly observed, as a necessary consequence of these views, that, if the power to determine these matters is vested in congress, it is wholly immaterial to inquire whether by the act assailed it has departed from the treaty or not, or whether such departure was by accident or design, and, if the latter, whether the reasons were good or bad.In these views we fully concur. It follows, therefore, that, when a law is clear in its provisions, its validity cannot be assailed before the courts for want of conformity to stipulations of a previous treaty not already executed. Considerations of that character belong to another department of the government. The duty of the courts is to construe and give effect to the latest expression of the sovereign will. In Head-Money Cases, 112 U.S. 580 , 5 Sup. Ct. Rep. 247, it was objected to an act of congress that it violated provisions contained in treaties with foreign nations, but the court replied that, so far as the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country; and, after a full and elaborate consideration of the subject, it held that, 'so far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal.'
(Whereas in an ideal world every jury in America would make such judgements...with appeal, of course.)
The informed jury is indeed an ideal; especially if we could chuck the exclusionary rule.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
ahhhh....
I understand, and wish you luck!!
This unconstitutional treaty (the Convention on Nature Protection) is the root of the proliferation of “sub-species.” It is the cited authority for the powers exerted by Federal Agencies through the courts. Proponents for such multilateral treaties claim that they supercede the Constitution, per Article VI, Clause 2:Note that the bolded phrase directs the scope of treaty authority to the Constitutions and Laws of the States, not the Constitution of the United States.“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
This claim of treaty authority ignores that treaties are authorized UNDER the Constitution. Therefore, any treaty that violated it would be void, because:I know, since when has that stopped them? Well, since when have property owners learned how to set up a test case in such a way as to make sure that the constitutional case, and the appeals, are correctly structured and conducted as to make for such a test?1. The Constitution and the Declaration of Independence acknowledge property rights as unalienable and stated that the purpose of government is to secure those rights.
2. The officers who negotiate and ratify treaties take an oath to abide by the Constitution. They do not have the legal authority to negotiate, ratify, or enforce an illegal document.
Supreme Court decisions have prohibited treaties that violate Constitutional provisions because government lacks the authority to conclude an agreement that violates Constitutional rights.
The Constitution grants limited powers to a Federal Government of the States. The framers did not envision treaties among an unspecified group of governments, each capable of post facto reservations (effectively changes in the terms of the treaty after ratification). The government is thus exceeding its authority when it concludes such an agreement.
It doesn't happen. That's the problem. Consider how long we waited for a case that was a decent test of the Second Amendment.
And, of course, treaties do not necessarily trump federal law, as Whitney and Reid make clear - the issue of which prevails is based simply on the old rule about new law prevailing over old. If a federal law is passed that conflicts with prior treaty provisions, the law prevails - if a treaty is ratified that conflicts with prior law, the treaty provisions prevail, when they are self-executing. And when treaty provisions appear to conflict with the Constitution itself, then and only then will the courts involve themselves in the dispute, and will hold the Constitution to supersede any treaty provision that conflicts with it, as per Reid.
This is all fine and dandy with the exception of the fact the Constitution is inadequate to prevent the growth of the state (as we've bitterly learned) and Congress and the Courts have no damn interest in limiting their own powers!!
See the problem?
That's my point. The Constitution did not come from Mount Olympus and is profoundly and most likely, given the intelligence of the Founders, Deliberately Flawed.
Well, since when have property owners learned how to set up a test case in such a way as to make sure that the constitutional case, and the appeals, are correctly structured and conducted as to make for such a test?
Good luck!
It doesn't happen. That's the problem. Consider how long we waited for a case that was a decent test of the Second Amendment.
That's what I'm screaming !!!
But Congress and the courts still listen when the people speak. The trick is getting the people to speak in ways that you find palatable, and there is no law and no court case that can make that so - hearts and minds are where the real battleground for the nation is...
Surely you've noticed.
The only route left open was total corruption of the fed, which could easily be corrected if the majority cared to do so.
Really, what's the largest percentage of the Senate that can be voted out at one time?
As the founders intended, 0. That doesn't negate the fact that, still, the States selected all members of Congress in one way or another.
Do you think this is an accident?
Kinda like its an accident tax day is 6 months away from election day !
But you're right there is an opening there.
Note that the bolded phrase directs the scope of treaty authority to the Constitutions and Laws of the States, not the Constitution of the United States.
That's exactly right!
I've read Article VI dozens of times but I completely overlooked it.
Also, treaties are made under the Authority of the United States. United States means the Federal government in the Constitution.
The Authority of the United States (the Federal government) is Limited by the Constitution, including the Bill of Rights.
Do you think this is an accident?
I think it's a good idea to stagger the Senate terms. Especially since the entire House runs every two years.
Also, electing 100 Senators every six years could cut both ways.
The original method of Senate appointments by State legislatures served as a better check on Federal power than the popularly elected Senate since the early 1900s.
Kinda like its an accident tax day is 6 months away from election day!
Which wasn't in the Constitution until the early 1900s.
They even took away booze after instituting the income tax. That's cold.
What the hell were they thinking in the early 1900s?
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