PART 2 of 2
Timothy N. Baldwin, JD.
January 9, 2010
Tenth Amendment: Actual or Pretense?
This leads me to the next point of discussion in Latimer’s article: the powers reserved to the states under the tenth amendment. Given Latimer’s constitutional construction method alone (i.e. “the [preamble] grants Congress power”), the tenth amendment is utterly worthless, having no effect whatsoever; specifically by the preamble stating that the constitution’s purpose was to “secure the blessings of liberty.” Given Latimer’s method of constitutional construction, if the federal government deemed that a state were not implementing laws best conducive to the “blessings of liberty,” the federal government could use its extremely broad powers to “secure the blessings of liberty” and could dictate to the states the laws it may or may not pass; despite the states’ expressly reserving all powers not granted to the federal government, which the Law of Nations acknowledges a sovereign state has the absolute right to do and defend. Of course, to Latimer and his like, elimination of the states would likely be a good thing, regardless of whether his interpretation of the constitution is ACTUALLY the meaning understood by the ratifiers in 1787.
Line of Separation Between Federal and State: Who Maintains It?
Latimer’s method of construction devours the limitations placed upon the federal government and the line of separation between the states and the federal government--a line that Madison claimed was inviolable--unbreakable and unassailable. James Madison says in Federalist Paper 39, “the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and LEAVES TO THE SEVERAL STATES A RESIDUARY AND INVIOLABLE SOVEREIGNTY OVER ALL OTHER OBJECTS.” (Emphasis added) How can an inviolable line of powers be maintained if the federal government can increase its powers at will, or as defined by the most un-democratic office holders in the country: the federal supreme court? Interestingly enough, the federal government, in toto, seems to be doing a great job at drawing and maintaining a “line of separation between church and state.” Why not apply the same strict principle of separation to the sovereignty of federal and state government? Funny how lines all of a sudden get blurry. The fact is: federal government lovers care nothing of the lines of sovereignty, except moving it encroachingly more into the territory and dominion of the states and people respectively, the tenth amendment notwithstanding. This requires the states to defend what is rightfully theirs.
Red Herrings--The Typical Response
Latimer attempts to debunk the purpose, reality and strength of the retained powers of the states by using red herrings to distract his readers, such as using the de-segregation cases of the 1950s. He appeals to emotions instead of conclusions of correct political application, as if expanding the federal government’s limited powers at the expense of the states’ retained powers is noble and was somehow justified because an apparent injustice was taking place within certain states; as if those apparent injustices create power in the federal government, despite the lack of constitutional authority to do so. Latimer makes a false (and supposedly benign) statement that the “Fourteenth Amendment specifically prohibits the states from abridging the privileges or immunities of American citizens,” as if to suggest that he actually cares what the real meaning and intention of the constitution and amendments express. Perhaps Latimer should go back to the history books and learn that even the federal supreme court judges did not believe that the actual and real meaning of the fourteenth amendment conveyed the power to Congress which Latimer would have us believe per se, even while the “general welfare” clause was still there.
Actual Meaning--Does It Even Matter?
While attempting to find historical support in context of the passage of the fourteenth amendment to give Congress the power to impose upon the states their will regarding the matters of desegregation, despite the tenth amendment and no enumerated power in Article 1, section 8 to do so, Supreme Court Justice Felix Frankfurter’s law clerk confirmed that “it is impossible to conclude that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” Thomas E. Woods, Jr. and Kevin R. C. Gutzman, Who Killed the Constitution?, (New York, NY, Crown Forum, 2008), 47. So, instead of comporting to the line of separation between federal and state powers anticipated and demanded by the US Constitution, the federal supreme court decided it would declare a “new law for a new day,” as worded by Justice Robert Jackson. Ibid., at 49. And so the story has been for quite some time: new laws for new days shape constitutional construction.
A “Living” Constitution Kills Its True Meaning and Purpose
This “living/changing constitution” notion is evident when Latimer states the following: “Similarly, today, Congress is empowered under Article I, Sect. 8, through taxation and regulation of commerce, to promote the general welfare by enacting socially beneficial programs into law, such as…health care reform legislation.” (Emphasis added). Latimer stresses in this sentence--and ones previous--that Congress has powers TODAY that it did not once have based upon the “general welfare” clause.
This constitutional approach of course contradicts the belief of those who influenced the principles of and who drafted and ratified the constitutions of the United States from 1777 to 1787. In fact, George Washington, the father of our country, expressed the fixed meaning of the constitution this way:
“Let the reins of government then be braced and held with a steady hand, and every violation of the constitution be reprehended. If defective, let it be amended, but not suffered to be trampled upon whilst it has an existence.” Albert Bushnell Hart, ed. and Mabel Hill, comp., Liberty Documents: With Contemporary Exposition and Critical Comments Drawn from Various Writers, (New York: Longmans, Green, 1903), 218.
The federal supreme court has recognized the same fixed meaning of the constitution: “We are bound to interpret the Constitution in light of the law as it existed at the time it was adopted.” Mattox v. United States, 156 U.S. 237, 243 (1895).
Of course Latimer would likely scoff at a notion that the constitution’s meaning is fixed. Unfortunately, most attorneys (ignorantly or not) do today (though consider the source of their education: ABA). When meanings change, it is no wonder how Latimer can in “good faith” conclude that the federal government has the power to force individuals to purchase health insurance mandated and controlled by them and force states to go along like little good slaves. It is this approach to constitutions that form the premises necessary to wittingly empower Congress to regulate “commerce [within] the several states” under the moving hand of the people’s “general welfare”.
So, What is “Limited Government”?
No doubt, Latimer and his like would say that the federal government is limited as well--perhaps not in the tongue-in-cheek fashion that Nancy Pelosi demonstrated when asked the question, Is the national health care bill constitutional? So, what is their proposed limitation? Latimer tells us: the federal government’s power rests somewhere between the “public interest [verses] individual liberties.” Of course, these definitions are made by either Congress or the federal supreme court. Perhaps Latimer should attempt to define “limit” for us: it would likely come out worse than Bill Clinton’s allusion to the definition of “is.”
What Are the Principles?
Of course, there is one thing that is ultimately missing in Latimer’s article: that is, principles or maxims. So, one must infer them, so here they are: the federal government has whatever power it decides to use subject to no restrictions other than the balance between “public interest and individual liberty” (short of maybe the federal supreme court’s opinion or presumably, constitutional amendment, though he would not dare suggest that the states should limit the power of the federal government in any way); human nature is naturally good; (federal) government is not to be feared; individuals are not created with certain inalienable rights which must not be interfered with by government; government need not encourage self-responsibility and -reliance, but government-program and -reliance; the status of “sovereign” states has no bearing to the limitations of the federal government; constitutions do not form the supreme will and consent of the sovereigns forming it; and to violate that supreme will is not committing an egregious act (of war) upon those sovereigns. In other words, Latimer’s principles run in direct contrast to the principles adopted by those whose thoughts formed and who drafted and ratified the Articles of Confederation and US Constitution. To Latimer, the federal government is our protector, our provider and our parent. To Latimer, “[t]hat socialized function of the federal government is not just constitutional; it's intelligent, humane and long overdue.”
The conclusion to be drawn from the juxtapositions displayed in Latimer’s method and the ones I have highlighted is that the people of the states have a serious identity crisis. We do not know who we are, why we are or how we came to be. We live in a country, under a federal constitution, which is supposed to be the “Supreme Law of the Land”; yet, there is not even close to being a consensus or even a similarity of thought on the nature and character, purpose, limitations and application of the constitution that we are all supposed to be governed by.
The polarities of the formation of the constitution (i.e. It was created by one people, forming one nation, creating a government subject only to the control of the people VERSES It was assented to by the sovereign individual acts of states in the form of a federal compact) cannot exist simultaneously. One will eventually give way to the other. Unfortunately, the nationalists have indeed gained ground on the matter for quite some time. Therefore, for all those who do not know where you stand, it is time to pick a side. Your ignorance is helping no one.
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If you do not know where to stand and why, then you need to study our history directly from the sources that influenced our country’s formation--not from talking heads, TV news stations or even talk radio. Watching Glenn Beck will not equip you to engage in the battle we are confronted with today. Finally, for those who stand firmly on the principles of self-government and federalism, “It’s Time We Decide” the identity of the constitution we consent to be governed by! For part one click below.
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Go to www.libertydefenseleague.com for articles, speeches and interviews of Timothy Baldwin.
© 2010 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin is an attorney from Pensacola, FL, who received his bachelor of arts degree at the University of West Florida and who graduated from Cumberland School of Law at Samford University in Birmingham, AL. After having received his Juris Doctorate degree from Cumberland School of Law, Baldwin became a Felony Prosecutor in the 1st District of Florida. In 2006, he started his own law practice, where he created specialized legal services entirely for property management companies.
Like his father, Chuck Baldwin, Timothy Baldwin is an astute writer of cutting-edge political articles, which he posts on his website, www.libertydefenseleague.com. Baldwin is also the author of the soon-to-be-released book entitled, Freedom For A Change, in which Baldwin expounds the fundamental principles of freedom believed by America’s forefathers and gives inspiring and intelligent application of those principles to our current political and cultural standing.
Baldwin is involved in important state sovereignty movement issues, including being co-counsel in the federal litigation in Montana involving the Firearms Freedom Act, the likes of which is undoubtedly a pivotal and essential ingredient to restoring freedom and federalism in the states of America. Baldwin is also a member of freedom organizations, such as The Oath-Keepers, and believes that the times require all freedom-loving Americans to educate, invigorate and activate the principles of freedom within the States of America for ourselves and our posterity.
Web site: LibertyDefenseLeague