"I consider the foundation of the [Federal] Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [10th Amendment] 
To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition."
--Thomas Jefferson: Opinion on National Bank, 1791

Among the first orders of business of the First Congress was the debate over establishing a bill of rights. Although the Constitution had made the separation and enumeration of powers very clear, the American people and the States wanted certain rights of the people to be explicitly stated within its text. After securing their independence from Britain, our Founding Fathers understood, better than anyone else, what freedoms a despotic and tyrannical government would attempt to take from the people.

The rights enumerated to the people in the bill of rights are those that are required to be exercised by the people if they are to retain their power over the government. For example, the inherent freedom of speech is one that any despotic government must take in order to control information. After all, knowledge is power; so whoever controls the dissemination of information has the power. Similar to the freedom of speech, the freedom of assembly, religion, and the right to bear arms and maintain a militia are all just as necessary to the people so they always have the means of establishing themselves as the ultimate authority over the government.

Not everyone believed that the bill of rights was necessary. For example, Alexander Hamilton believed that the structure of the Constitution was enough to bind down the federal government. He explains that the Constitution is set up so that the people of America “surrender nothing” by delegating powers to the central government. In that sense, Hamilton was right. Any federal legislation that falls outside of the confines of the Constitutional limits of Congressional power is by default unconstitutional; it is a breach of contract; it is an invasion of the sovereignty of the State or the States and the will of We the People. In Federalist No. 84, Alexander Hamilton uses the Preamble of the Constitution to explain that a bill of rights is not necessary. Hamilton wrote:

“[Our Constitution is] professedly founded upon the power of the people...Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. ‘WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do establish this Constitution for the United States of America.’ Here is a clear recognition of popular rights...”

Hamilton then went on to reference several articles, sections, and clauses which did, in fact, identify the structure of the new government as one that protects the rights of the people. Hamilton’s main fear was that the enumeration of certain rights would lead to the belief that those certain rights were all the rights of the people and that they were granted by the benevolence of the government. In the end, the will of the people and the States led to the ratification of the bill of rights.

With one hundred proposed amendments supplied to Congress by the States, James Madison initiated the debate. Of the proposed amendments, only ten were selected for ratification as the people’s bill of rights. Two amendments chosen for ratification, the ninth and tenth, were designed to be solid reinforcements of the limited role of the federal government. These two amendments did not enumerate any rights to the people; rather, they were composed in a manner that identified the rights of the people as almost completely unlimited.

The ninth amendment to the United States Constitution was written to explain that the people have rights that go beyond what is expressed in the bill of rights, thus eliminating Hamilton’s fear that a bill of rights would be identified as the entirety of the rights of the people. The Ninth Amendment states:

“The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”

The Ninth Amendment gives explicit attention to the protection of liberty by preventing the federal government from reaching beyond its delegated powers. In other words, the Ninth Amendment is saying “just because we list some of the people’s rights it does not mean that we have listed all of the people’s rights.” It also means, “all the rights of the people need to be protected but here is a short list of the ones that need special attention.” The Ninth Amendment is not a delegation of power; it is a statement of understanding The Ninth Amendment ensures the context of the bill of rights as a protection of the people’s liberty; not as granting the peoples liberty. James Madison stated this understanding as he proposed the bill of rights on the House floor when he said:

“It has been objected also against a bill of rights, that, by enumerating particular exception to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.”

Just as the Ninth Amendment is written to reinforce personal liberty, the Tenth Amendment is written to reinforce the limitations of the federal government by making it clear that undelegated powers belong to the people unless given by the people to the States or the federal government. Just in case the Preamble to the Constitution wasn’t clear enough; incase Article 1 Sections 3 and 8 were not made clear at all; in case Article 2 Section 2 and Article 4 Section 4 left the American people wondering whether the States or the federal government had more authority to govern the people, our Founding Fathers added one last reinforcement for State sovereignty. That last reinforcement of State sovereignty came with the ratification of the Tenth Amendment to the Constitution. The Tenth Amendment says that before Congress can act, it must point to one of their enumerated powers as the source of their authority; and if they do not have that power enumerated to them, then it is a power left to the people. The Tenth 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 the people.”

Paraphrased #1:

“All the powers we forgot to give the federal government and all the powers we forgot to tell the States they don’t have....those powers then, are by default, given to the States and to the people.”

Paraphrased #2:

“If they didn’t put it in the Constitution then they didn’t put it in Washington!”

It was America’s intent all along to keep the States free from intrusiveness that might someday come from an overbearing and tyrannical central government. Also, many people do not know that Article II of the Articles of Confederation, America’s first form of government, had a similar provision which clearly stated the same point:

“Each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress Assembled.”

Much like the previous declaration in the Articles of Confederation, the Tenth Amendment to the United States Constitution defines the scope of federal power as only that power enumerated to the federal government by We the People. All power that is not enumerated to the federal government must necessarily remain with the States or the people. To further assure the American people of this limit on the federal government’s ability to intervene in their lives, James Madison wrote in Federalist No. 45:

“The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former [federal power] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce...The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State.”

Should the people ever decide to enumerate any more power to the federal government, we can amend the Constitution to legally provide for that delegation of power. We have already discussed the amendment procedure which is detailed in Article 5 of the Constitution.                                                                                                                                                                 

This is why we call it the federal government; because it is a federation of sovereign States. Governments exist on two levels in America: the defined sovereignty of the federal government and the indefinite sovereignty of the State governments. Madison referred to this when he said, “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” State Sovereignty is not unlimited, simply because the States have delegated some power to Congress. States do however have indefinite sovereignty because of the indefinite issues that exist outside of those powers delegated to Congress. James Madison, the Father of the Constitution and the drafter of the Bill of Rights, had this to say about the sovereignty of the States:

“[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general.”

By this point, we have come to understand that the United States Constitution is saturated with the idea of having sovereign States; free to exercise all the powers reserved to them outside of those delegated to the federal government. Not only have we found that the States have a larger array of powers but we have also found out that the federal government exist only for the benefit of the States so that they may enjoy domestic tranquility, a general welfare and have provided for them, a common defense. We have also discovered that the federal government, according to the Constitution prior to the ratification of the 17th Amendment, could only operate with the consent of the States. It is obvious, considering the principles outlined in the Declaration of Independence, that just as our government operates only with our consent for the protection of our rights, so does the federal government operate only with the consent of the States to protect the sovereignty of the States. 


Copyright 2012 by Paul Curtman, All rights reserved. Don't Tread On Me! The Constitution and State Sovereignty. 2009

I have heard some of my good republican friends make some pretty disparaging comments about libertarians recently. Unable to determine if my friends were talking about people who belong to the libertarian party or people who simply identify with the libertarian philosophy, I asked them to clarify, and they couldn’t. This is disturbing. Unfortunately for conservatives in America, the word libertarian is misunderstood but only because we have accepted the term as defined by a society of lazy thinkers. Most people think that a libertarian is someone who belongs to the libertarian party or they think it’s a soft word for anarchists. The problem with this is that society has taken a word that identifies an important concept and twisted it so that popular culture defines and uses the word the wrong way. I see the same problem with the way popular culture uses the word, "truther," to identify people that society thinks are crazy for their thoughts on what happened on September 11, 2001. TRUTH is a GOOD word but we have found a way to attribute it to an idea that so many people hate. Historian and author, Paul Johnson once wrote,  “Those who treasure the meaning of words will treasure truth… The correct and honorable use of words is the first and natural credential of civilized status.”

A true libertarian is someone who basically believes that the sole purpose of government is to protect the God-given liberties that we are each endowed with and that our laws should provide equal protection of those liberties for everybody. The Declaration of Independence and the Constitution reinforce this fundamental idea. I believe that the Founding Fathers would have no problem being identified as libertarian if they were alive today. Thomas Jefferson, for example, and the rest of the founders at the 2nd Continental Congress believed that government should only go about business so long as its aim is to protect natural rights. Anyone can easily come to this conclusion by reading the second paragraph of the Declaration of Independence where it states that, “all men are created equal, that they are endowed by their Creator with certain unalienable rights, among these are life, liberty and the pursuit of happiness, and that to secure these rights, governments are instituted among me…” This concept was approved unanimously.

Our Founders often referred to “natural law,” “laws of nature” or the “laws of nature's God.” They reasoned that since we are naturally born under the laws of nature and the laws of God that our liberty is inherent and therefore, by virtue of being alive, we have natural rights to freedom. For example, our thoughts are inherent in us and they can by no means be taken from our minds. The government cannot possibly execute laws to take away our thoughts; in fact, the very notion sounds absurd! The same God that gave us an mind and the ability to think also gave us a tongue and the ability to articulate the thoughts in our minds. To follow this logic a little further we would come to the natural conclusion that our freedom of speech is just as natural as our natural ability to speak. For government to deprive us of our freedom of speech is really quite as absurd as if they were to write a law to deprive us of our thoughts.

Constitutions and laws do not create the restraints of government. The government has restraints placed on it by the higher laws of nature; governments cannot take away our natural rights.  Just as they have no authority to take our rights from us they likewise cannot create natural rights. The reason governments around the world get in so much trouble is that they all too often attempt to attribute natural rights beyond the parameters of natural law. For example, the welfare state continues to pull people into unproductive behavior because governments generate laws that tell people that they have a right to other people's labor and property and basically send a message to the people that, “It’s a good idea to spread the wealth around.”  As America's welfare state has continued to expand so has its loss of manufacturing until ultimately we have become a consumer nation and not a producer nation and we have more debt than can be paid off. The welfare state isn’t the only contributor to this economic trend, of course, but it has played a significant role in incentivizing poor behavior for some people.

Ronald Reagan once said that libertarianism is the heart of conservatism. What he was saying is that in order to advocate true conservatism, it is paramount that we understand the principles of liberty; liberty is eternal, it transcends any party platform and is grounded in perfect truth. A person who studies and adheres to the principles of liberty is, in every sense, a libertarian. It isn’t a bad thing, it is a good thing and the security of our freedom in American depends on our ability to grasp that concept. It is OK for libertarians to disagree on policy and candidates and many do. Many libertarian thinkers can mainly be found in the Republican party but there are some in the Democrat party as well.

As a Republican, I believe that my party platform has its roots in policy designed with libertarian influence to protect the liberty of the people. I strive for constitutionality but it only works if I understand and adhere to the libertarian philosophy to some degree or another. Regardless of what party I align to the truth of the matter is that the greater grasp I have on the idea of liberty, the more apt I am to follow the Constitution in its entirety and help keep Americans free.

Libertarianism has become a dirty word among conservatives and I for one am not going to keep running from definitions that RINOs or the left keep rewriting. I would strongly suggest that anyone looking to gain a deeper understanding of the founding principles, read some of the writings from the authors that our Founders read and studied from. If you want to restore the Constitution and secure our liberties and keep us from this crippling debt, don't be preoccupied with PARTY - be preoccupied with the PRINCIPLE of Liberty.

My stand for personal freedom is rooted in my belief that the proper role of government is written into the laws of nature. We are all created equal and at the moment we have life we have a natural right to continue living and enjoy the other natural liberties that we were given at the instant of life but we need security and protection for our rights. As stated in the Declaration of Independence, "and that to secure these rights, governments are instituted among men."

For example, my thoughts are inherent, they are a part of me- my tongue is a natural part of me that allows me to articulate my thoughts and therefore my freedom of speech is just as NATURAL as my NATURAL ability to speak. The laws of nature say that I have a natural right to speak freely and the 1st amendment to the Constitution protects that natural right. Many of the problems with our society today come from the idea that government can create "rights." The laws of nature carry more authority than the laws of government so when the government tries to extend "natural" rights beyond the parameter of natural law unintended yet predictable consequences might very well begin to happen. Think about this: No one has a "right" to your hard earned money but the welfare state says that SOME people do have a "right" to your money. Practices like this in-turn will only lead to bigger government as they attempt to "solve" all the problems that it often responsible for creating in the first place.

I firmly believe that it is not the role of government to tell you who you can and cannot have a relationship with, I think everyone can agree about that, but I personally believe that marriage, as a religious institution, is between a man and a woman. I also think that it might not be a good idea for government to start defining religious institutions like marriage, especially when the MIAC Report and the DHS identify Christians as possible "militia influence extremist" etc.  With this kind of rhetoric coming from an increasingly authoritarian central government I wonder how long it will be until they define what a "real" church is or what a "real" Christian is, all for the sake of national security of course. 

Marriage, as an institution, is the jurisdiction of God. If homosexual couples are wanting to enjoy the same rights currently reserved for married heterosexual couples, hospital visitation and tax benefits etc., there are ways to do that without the government defining the religious institution of marriage. Also, just for full disclosure, I'm not a fan of the idea that the government requires you to have a license before getting married. Is getting married so dangerous that we have to have a license and government approval and oversight first? George Washington and Abraham Lincoln never had a marriage but now everyone else does. It is just another mandate from big government that probably should have never been part of our nations history. 

The state should not be meddling with religious institutions of faith nor defining them one way or the other. This is what Thomas Jefferson was referring to when he was trying to convey to the Baptist of Danbury, CT that there was a "wall of separation between church and state" that would keep them free from government intrusiveness. This is something our founders warned us to be careful of. If the people decide something on this issue by way of Constitutional amendment, that would be different in the sense that we the people directly embrace the law instead of having it implemented by politicians, or worse, unelected members of the court. 

The writings of the founders indicate that separation of church and state was never intended to prevent religion from having an influence on the government, but rather it was intended to prevent the state from mandating religious practice or otherwise interfering with the doctrine or administration of churches etc. We would do well to remember that.