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What happened to the Tenth Amendment?
By Robert Greenslade

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.


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When honest people who hold strong opinions come together, it is natural that they state their opinions, and that those opinions occasionally clash. The articles that you see on this website represent the opinion of the writers, and are not the official opinion of this party. To see the official party position on any question, the reader is referred to the Party Platform.


Permission to reprint/republish granted, as long as you include the name of our site, the author,and our URL. www.cptexas.org. All CP Texas reports, and all editorials are property of The Constitution Party of Texas 2002 (unless otherwise noted).



Previous Articles by Robert Greenslade

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