Issues such as marriage and abortion tend to be hot button topics at the Federal level. Such issues are likely to remain contentious as each side is thoroughly convinced that their arguments are right. However, without amendment to the US Constitution, neither of these issues (as well as many others) are within the legitimate scope of the Federal government according to original intent. That is to say, there is no provision of power in Article 1, section 8 that permits the Federal government control over them.

Both issues tend to illicit arguments from one side that appeal to morality based upon religious doctrine. The opposing side tends to appeal to individual rights. Where does one draw the line between religious doctrine and individual Liberty? According to the framers, that line was to be drawn by the people of the individual States. What is little known is that the framers did not intend for the US Bill of Rights to be enforced by the Federal government upon the States, to the contrary, it was to be enforced by the States upon the Federal Government, where each state was to be restrained by their respective people according to their respective charter (State Constitution) and included State Declaration of Rights or State Bill of Rights.

Because the US BOR was not originally enforced by the Federal government against the individual States, the various states could (and did) have established churches. Connecticut had an established church until 1818 and Massachusetts until 1833. According to original intent, those who want to enforce morality by law are perfectly within US Constitutional limits to do so at the state/local level. In fact, the early States did this. Each one had anti-sodomy laws at the State level. This of course was influenced by religious doctrine. The framers thought it was best to leave these decisions at the state level, where they can more easily be controlled and changed if the people found them in error. There were some Federal laws that addressed sodomy, but these were confined to Federal jurisdiction, such as military rules and regulations  (Article 1, section 8, clause 14).

The framers understood that the people of America had various ideals. Even if they agreed on some issues, they still left them to be determined by the people of the various states. Local governance was an important principle to the colonists. Where local/state governments are left free to appeal to the various ideals of the people, this allows the people an outlet to govern according to their own ideals without forcing them upon the rest of the United States.

State autonomy according to the 10th amendment should appeal to those on both sides of contentious issues. Allowing the people of various States the freedom to choose how to governing according to their respective ideals allows each side to live under a government that satisfies their principles.

Note: this is an examination of original intent. Also see the incorporation doctrine for more information on 20th century ‘interpretation’.

California, Proposition 8, passed 2008: states that “only marriage between a man and a woman is valid or recognized in California.” [1]

California, Proposition 19, on 2010 ballot: “legalizes various marijuana-related activities, allows local governments to regulate these activities, permits local governments to impose and collect marijuana-related fees and taxes, and authorizes various criminal and civil penalties.” [2]

These two amendments have brought into question the long forgotten concept of Federalism in America. This includes the right to self-governance. The awakening in America that has occurred in the past few years with regard to the Constitution and our founding principles has been interesting to say the least. Many groups have realized that the Federal government is out of control and that too much power has accumulated in DC. They realize it is this concentration of power that has resulted in many of the problems within our society, including the destruction of our economic and social freedoms.

However, California stands to separate the wheat from the tares in regards to those who simply want to use unauthorized power of the national government to accomplish their political ends, and those truly want to return to our founder’s original intent of the US Constitution and the American form of government under Dual Federalism.

Dual Federalism was the legal theory that prevailed at the time of the ratification of the US Constitution in 1787. It is the system of American government that was originally intended. It defines the relationship between the Federal and State government as intended by America’s framers. Dual Federalism includes 4 primary concepts:

1. National government rules by enumerated powers only.
2. National government has a limited set of constitutional purposes.
3. Each governmental unit—state and federal—is sovereign within its sphere of operations.
4. Relationship between nation and states is best summed up as tension rather than cooperation.

Dual Federalism assured the right of the people to self governance. Under this ideal, the Federal government was restricted to the specific and enumerated powers of the US Constitution. These powers primarily dealt with foreign trade and defense against foreign invasion. The States and local governments were intended to largely handle our domestic concerns. Each State, in this sense retained the sovereignty of nations, except for those powers specifically surrendered to the Federal government under Article 1, Section 10. This concept is addressed in the Tenth Amendment:

“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.”

Proposition 8, Gay Marriage

In 2008, the People of California voted to define marriage within their State as being between a man and woman. Yet, against the will of the People of California, a Federal judge struck down this proposition on August 4th, 2010 [3]. This is currently being appealed in higher courts.

Opponents of Proposition 8 argue that it is a violation of the privileges and immunities clause of the 14th amendment. However, the supporters of Prop 8 are claiming State sovereignty under the 10th amendment which supports the right of the People to self-govern.

Those who make the case with regard to the 14th amendment argue according to modern case law and precedent. This precedent has been set whereby the courts simply define what the “privilege and immunities” clause means and rule accordingly as they have done with regard to the “Incorporation Doctrine”. This is most certainly headed for the Supreme Court at some point, where it would only require the Supreme Courts Justices to define marriage as being one of the protected privileges and/or find protection under the immunities portion which protects against penalties being applied on specific groups or individuals. However, the most recent SCOTUS nominee, Elena Kagan, has expressed that she believes there is no “Constitutional right” to marry even under the 14th amendment, but that doesn’t guarantee how she would ultimately rule in this case.

Again, the proponents of proposition 8 must rely on original intent and the concept of Dual Federalism under the 10th Amendment.

Proposition 19, Marijuana De-criminalization

Federal drug prohibition in America has been justified under the Commerce Clause of the US Constitution. It is this broad interpretation that has been used to justify the power of the Federal government to regulate wheat production on private property for personal use and consumption as in the Wikard v Filburn Supreme Court case in 1942. It is also under this broad interpretation the Federal government regulates fire arms and it will be used to justify provisions of the latest Federal health care bill, infamously known as Obamacare, when it meets pending challenges by various States in Federal court.

What did some of our primary framers think of the power of the Federal Congress regarding commerce?

“For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.”

–Thomas Jefferson: Opinion on Bank, 1791. ME 3:147

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

– James Madison, Letter to Cabell, February 13, 1829

Clearly, the commerce clause was not a broad authority for US Congress to regulate without end. James Madison made it clear it was to protect against economic protectionism among States through tariffs and the like.

Alcohol prohibition was not authorized until the 18th amendment was passed which granted the US Congress the express authority to prohibit the sale of alcohol. Why is it that we have accepted the idea that the Federal government has the authority to place a prohibition on drugs without a similar amendment? Again, the only way to justify it without an amendment is to allow for a broad interpretation of the Commerce Clause which allows for nearly unlimited authority to regulate our daily lives and economic activities.

According to original intent, this issue clearly is to rest with the individual States at the highest level. This November, the people of California are going to decide if they want to decriminalize marijuana within their state, yet President Obama and other authorities at the White House have already expressed their intent to enforce the Federal law against the will of the People of California.

Opponents of prop 19 must rely on a broad interpretation of the Commerce Clause and therefore, broad Federal authority with respect to the regulation of all economic activities.

Where supporters of prop 19, must rely on the 10th amendment.

Ironically, many who support Proposition 8, oppose Proposition 19 and condone Federal interference on the matter. On the other hand, many who support Proposition 19, oppose Proposition 8 and support Federal interference on the matter.

The Role of the Federal Government

“The States can best govern our home concerns and the general government our foreign ones. I wish, therefore… never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold at market.”

— Thomas Jefferson, Letter to Judge William Johnson, June 12, 1823

“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. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce.”

– James Madison, Federalist Papers #45

Many think that the founders intended for the Federal government to specifically guarantee our rights, but this is not the case. The purpose of the States and local governments were for the specific protection of individual rights. However, the States created the Federal government for their own mutual protection. This of course protected the right of the people to self governance.

The Bill of Rights is often understood to be the specific protection of our rights in the US Constitution; however, what is seldom understood is that the Bill of Rights originally only applied as strict limitations against Federal power. This was reiterated in the Barron v. Baltimore Supreme Court case in 1833. The individual State constitutions limited the power of the individual States, most of which include their own State Bill of Rights or Declaration of Rights that mirror the US Bill of Rights, but are more extensive in most cases.

It was understood by our founders that you cannot trust the Federal government to protect our rights, which necessarily includes the power to define our rights. Even the right to life has always been defined by individual State governments, this of course under the directive of their respective people.

Those who seek a true return to our founding principles which includes the right to self governance under Dual Federalism must accept the right of the People of California to self governance. That is to say, we must accept their right to prohibit gay marriage and legalize marijuana within their State without Federal interference. We must also accept the right of another State to allow gay marriage and prohibit marijuana.

The cross roads with respect to original intent and Dual Federalism will be reached with these two propositions. Will the supporters of Proposition 8 also support Federal intervention with respect to Proposition 19? Likewise, will the supporters of Proposition 19 support Federal intervention with respect to Proposition 8?

There is nothing wrong or in violation of Federalism for having an opinion  as to why a particular State should or should not govern in a certain way. These are perfectly acceptable debates in a free society. However, if you seek to use the power of the Federal government to limit the right of self governance to the People of any one state, you have opened the door for that same power to be used against you. That is the height of tyranny. The use of Federal power in this way is not enumerated in the US Constitution, nor was it ever intended by its creators.

Dual Federalism and self governance were fundamental concepts at the time of our founding and cannot be separated from original intent. Otherwise, the entire concept of a limited Federal government under the Constitution is subverted. What results is the concept of a National, rather than Federal system of government. We were founded under the latter, but we have devolved into the former. It is time for America to decide once again what course it will take. Are we under a “National” or “Federal” government? This may be the last breath for Dual Federalism in America and it may decide the fate of true original intent, it is something we must carefully consider.

“On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”

– Thomas Jefferson to William Johnson, 1823. ME 15:449

“Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.” [Emphasis Added]

– James Madison, Federalist Papers #39

“The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the function he is competent to. Let the National Government be entrusted with the defence of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best.”

– Thomas Jefferson to Joseph C. Cabell, 1816. ME 14:421

“It is not by the consolidation or concentration of powers, but by their distribution that good government is effected. Were not this great country already divided into States, that division must be made that each might do for itself what …concerns itself directly and what it can so much better do than a distant authority. Every state again is divided into counties, each to take care of what lies within its local bounds; each county again into townships or wards, to manage minuter details; and every ward into farms, to be governed each by its individual proprietor. It is by this partition of cares descending in gradation from general to particular that the mass of human affairs may be best managed for the good and prosperity of all.”

– Thomas Jefferson: Autobiography, 1821. ME 1:122

‎”We should thus marshal our government into, 1. the general federal republic, for all concerns foreign and federal; 2. that of the State, for what relates to our own citizens exclusively; 3. the county republics, for the duties and concerns of the county; and 4. the ward republics, for the small and yet numerous and interesting concerns of the neighborhood; and in government, as well as in every other business of life, it is by division and subdivision of duties alone, that all matters, great and small, can be managed to perfection. And the whole is cemented by giving to every citizen, personally, a part in the administration of the public affairs.”

– Thomas Jefferson to Samuel Kercheval, 1816. ME 15:38

“Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations; but, on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes.”

– James Madison, Speech at the Virginia Convention to ratify the Federal Constitution (1788-06-06)

[1] http://www.ag.ca.gov/cms_pdfs/initiatives/i737_07-0068_Initiative.pdf

[2] http://www.lao.ca.gov/ballot/2009/090512.aspx

[3] http://latimesblogs.latimes.com/lanow/2010/08/prop8-gay-marriage.html

The Preamble to The Bill of Rights

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the “Bill of Rights.”

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

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

Amendment X

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.