Don’t Tread On Me!
When the subject of the Tenth Amendment has been
raised in past conversation, some have laughed and some have said, “Oh,
that will never work.” Since its passage, many States have tried to
invoke their Tenth Amendment rights on several occasions.
The largest combined effort, before now, was when eleven states
sought to secede from the united States during the Civil War.
Interestingly enough, the last time people got truly fired up about
their States rights was during the Roosevelt Administration in the
1930’s during the “New Deal” and the Great Depression…Why do we
have such a magnificent amendment to protect the states if we are not
going to use it?
The February 2008 CRS Report for Congress,
after quoting the Tenth Amendment, states, “While this language would
appear to represent one of the most clear examples of a federalist
principle in the Constitution, it has not had a significant impact in
limiting federal powers. Initially,
the Supreme Court interpreted the Tenth Amendment to have substantive
content, so that certain ‘core’ state functions would be beyond the
authority of the federal government to regulate.”
Yet, in the past, as now, the Federal Government continues to take
what it wants, expecting the states to bow down in servitude.
Shortly after that Constitutional Convention,
lawmakers saw the vague language and decided that government needed to
recognize the rights of the States and respective citizens.
The Tenth Amendment was added, along with nine other defining
amendments. Federal legislators, derelict in their duties, still see the
Tenth Amendment as very vague and pass laws that they are not truly
authorized to pass. The
Preamble to the Bill of Rights expressly states that, “…the States,
having at the time of their adopting the Constitution, expressed a desire,
in order to prevent misconstruction or abuse of its powers…”
Since the Federal government overlooks this, I propose that, for
more clarity, it would be prudent to turn to the state-level debates that
ensued during the formation of the State’s Rights Amendment.
The book The Complete Bill of Rights gives us
a much-needed glance at the thoughts of our legislators at the time.
Eight states proposed clarification for the Tenth Amendment.
It is interesting that all these states were clear about not
allowing the Federal Government any extra flexibility from its
Constitutional boundaries. Of those, a few stand out.
From New York:
“That the Powers of the Government may be reassumed
by the People, whensoever it shall become necessary to their Happiness;
that every Power, Jurisdiction and right, which is not by the said
Constitution clearly delegated to the Congress of the United States, or
the departments of the Government thereof, remains to the People of the
several States, or to their respective State Governments to whom they may
have granted the same…”
From North Carolina:
“That those clauses which declare that Congress
shall not exercise certain powers, be not interpreted in any manner
whatsoever to extend the powers of Congress...”
“That the sovereignty, freedom and independency of
the several states shall be retained...”
From South Carolina:
“…that no Section or paragraph of the said
Constitution warrants a Construction that the states do not retain every
power not expressly relinquished by them and vested in the General
Government of the Union.”
“…That all power is naturally vested in and
consequently derived from the people; that Magestrates, therefore, are
their trustees and agents at all times amenable to them…”
In the upcoming film Don’t Tread On Me,
Constitutional Expert Dr Edwin Vieira makes a striking observation,
“We-the-People do ordain and establish…Public officials didn’t do
that, judges didn’t do that…that is a statement that We-the-People
have the authority; we are the ultimate law-givers…” This statement
echoes the thoughts, opinions and written words of our early State
legislators, as well as many citizens of today.
James Madison, one of our Founding Fathers and chief
author of our Constitution, made several defining statements about the
States and government, among those, these two stand out.
From Federalist Paper #45:
“The powers delegated by the proposed Constitution
to the Federal Government, are few and defined. Those which are to remain
in the State Governments are numerous and indefinite.”
In regards to state sovereignty and the compact theory:
“Our governmental system is established by compact,
not between the Government of the United States and the State Governments
but between the STATES AS SOVEREIGN COMMUNITIES, stipulating EACH
with the OTHER…” from the Dictionary of American History
There are other references, as well.
Under the subject Reserved Powers of States in the 1940 Dictionary
of American History Vol. IV, it states of the Tenth Amendment that it
“…securely established the United States as a Federal state composed
of a central government and a number of constituent state governments each
possessing powers independent of the other.”
It also confesses that the “Supreme Court has, by a consistent
policy of broad construction, added many implied powers.”
In Vol. V of the same Dictionary, the
States’ Rights heading conveys “states’ rights has meant different
things at different times” further stating that, as Jefferson envisioned
State’s Rights, it was a “rule of strict construction applied to the
powers of the central government…”
There are more references, to be sure.
It is clear by the above exactly what our legislators at the time
meant by the Tenth Amendment…the individual States will, indeed, keep
their sovereignty. The
Federal Government will be limited from over-reaching its bounds and
converting the united States in to a dictatorial government under the
Federal government. I heard
someone say, and it makes sense, that our Founding Fathers had just fought
a war to win our country’s freedom from a tyrannical government
(England) so why would they “create” a government with the same
agenda? Why would they
“win” their freedom just to give it up, again, to a central power?
Several states are drafting legislation to assert
their state sovereignty. To
name a few recent laws that have driven states to seek their Tenth
Amendment rights, the USA PATRIOT Act (which basically treads on the 1st,
4th, 5th, 6th, 8th, and 13th
Amendments) and its extensions, the Real ID Act (not passing on its own,
it was attached as a rider to an appropriations bill), the John Warner
Defense Act (ending Posse Comitatus), the Military Commissions Act (ending
Habeas Corpus), the FISA Amendment Act (ending, then redefining, privacy),
the Economic Stabilization Act of 2008, the America Recovery and
Reinvestment Act of 2009 and, most recently, the newly passed healthcare
disaster. No one is playing favorites.
The last several administrations have been guilty of treading over
the rights of the states and their citizens.
Charles Key, State Representative from Oklahoma, one
of the most outspoken on the State Sovereignty issue, said in an exclusive
interview for Don’t Tread On Me, “The whole reason we have the
Second Amendment in there…is to protect ourselves against an
out-of-control government, a tyrannical government, a government that is
violating the rights of the citizens…violates the law.”
Filmmaker William Lewis says, “Throughout history, tyrants
don’t give up their power willingly.”
So what do we do?
In a March 16, 2010 Wall Street Journal/NBC Poll, fifty percent of
the people said they would “replace every single member of Congress,
including your own representative,” while forty-seven percent said they
would not. It may be time to
“start kicking ass and taking names,” according to film producer Gary
Franchi. Montana Governor
Brian Schweitzer’s stand is clear, “The Federal Government says we
want to be your daddy. We
want to tell you how to live your life.
That’s where we draw the line and say, whoa, not here in
Montana.” It is evident
that other states are drawing their proverbial “line in the sand,” as
What will it take for people across the United States to get angry enough to stand up and take back what is rightfully theirs, rights given to them by their Creator, NOT Congress? It didn’t happen when Congress passed the Federal Reserve Act way back in 1913, or any of the other encroaching pieces of legislation since. Now we have the Federal Government mandating that we, as sovereign, individual citizens, purchase government approved health care! Can we not see that with each passing of an egregious piece of legislation the people are becoming more and more enslaved? What’s it going to take to make people shout, “Stop treading on me”?
CRS Report for Congress, Federalism, State
Sovereignty and the Constitution: Basis
and Limits of Congressional Power, Kenneth R Thomas, Legislative
Attorney, American Law Division, Updated February 1, 2008
The Complete Bill of Rights: The Drafts, Debates, Sources and Origins, Edited by Neil
H Cogan, Oxford University Press, New York/Oxford, 1997
Dictionary of American History, James Truslow
Adams, Editor in Chief, Charles Scribner’s Sons, New York, 1940, Volumes
II, IV, V
For more information on the upcoming film, Don’t
Tread On Me, please visit
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