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The Federal Government Violates the Tenth Amendment of the Constitution

April 24, 2008
By Vincent Gioia

amendment10.jpgIn the Bill of Rights, the Tenth Amendment of the Constitution of the United States of America 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."

The wording describing the distribution of powers between the federal and state governments is very clear but 200 years after the amendment was adopted federal law makers have succeeded in subverting the language and intent of the amendment.

Perhaps it was inevitable that those making our laws would succumb to the enormous power of office despite the clarity of vision demonstrated by the creators of the Constitution. This occurred when federal lawmakers discovered the tool to expand government control was the power of the purse. It is a process that began many years ago and is still continuing at the cost to the American taxpayer of billions of dollars, maybe even trillions, over the years. In a word, governmental power over the states is done by extortion.

It may be unclear just when federal lawmakers first realized they could use the federal budget to make states dependent on federal money to such a point that they could then extort from the states, the powers that the Constitution had specifically denied them, but learn it they did. Lawmakers are now well aware of how to usurp the powers of the states; it is a three step process.

The steps are "assistance", "encumbrance" and out and out extortion.

Since there is no end to the "good" liberals can conjure, it is a natural thought process that leads to redistribution of wealth to achieve a balance of benefits among people in all states. It is considered unfair that wealthier states are able to spend more money on desirable goals than poorer states so the federal government must step in to right this wrong.

For example, wealthier states spend more on education than poorer states so in order to help equalize education, the federal government should provide assistance to all states. This is in done by giving federal tax dollars to all states according to their needs for equalization of outcome. What could be fairer than to have citizens of the wealthier states pay the largest proportion of this equalization by additional taxes which are then redistributed back to the states according to population figures. This makes perfect sense if you ignore the fact that there is no justification under the constitution for the federal government to redistribute wealth.

Another approach to extending federal control over states is to make state and local governments dependent on federal funding. When a state wants to build new schools or highways, they often vote bonds to fund the construction. The federal government gives the states money for many purposes and that money is worked into the state budget. For the buyers of the bonds it is important to know the state has the ability to repay the bonds. The value of the bonds to the investors who buy them is based upon what they believe is the ability of the state to repay the bonds which in turn is based on the expectation of continued receipt by the state of millions of dollars from the federal government over the period of the bonds. Thus, the state builds up significant debt relying upon the continuance of funding from the federal government. Naturally, no money comes from the federal government without strings attached so the state must necessarily follow the dictates of the federal government in order to continue to receive this money.

Once the states are sufficiently encumbered, it is no problem for federal lawmakers to extort the state to relinquish power it has under the Tenth Amendment of the Constitution. The federal government uses the newly acquired power to demand the state undertake various policies and the state has no choice but to comply. If the state does not do what the federal government requires, federal "assistance" funds are not provided. If the state does not receive the federal money, not only do they lose the "redistributed funds" from other states and their tax payers, their bond rating will drop thereby increasing the cost to the state for borrowing money for state needs. You can spin the process anyway you wish but in reality this is simple extortion.

Walter Williams, perhaps one of the clearest thinkers on the stage today, wrote:

"One response to federal encroachment is for state governments to declare federal laws that have no constitutional authority null and void, and refuse to enforce them. While the U.S. Constitution provides no specific provision for nullification, the case for nullification is found in the nature of compacts and agreements. Our constitution represents a compact between the states and the federal government. As with any compact, one party does not have a monopoly over its interpretation, nor can one party change it without the consent of the other. Additionally, no one has a moral obligation to obey unconstitutional laws. That's not to say there isn't a compelling case for obedience to unconstitutional laws: the brutal force of the federal government to coerce obedience."

"In violation of both the letter and spirit, the federal government imposes unconstitutional and costly mandates covering the gamut from education and land usage to how much water can be used to flush toilets. I wonder when a governor and his state legislature will summon the courage to declare some of these federal laws null and void, and refuse to enforce them."

Walter Williams gave just a few examples of the federal government intrusion on state's rights, but there are many more. The federal government has used the prospect of withholding federal funds to coerce states into adoption of a huge number of federal policy dictates including, to mention just a few more, mandating highway speed limits, land use, mandatory minimum penalties for driving infractions and even the dumping of motor oil. Highway funds are or have been contingent on drug-free workplace laws, metric conversion and removing billboards from highways. Even the minimum drinking age has been mandated by the federal government to the states.

Such federal control prevents states from attempting their own ideas for effective governance. For example, if a state thinks there is a better way to monitor driver safety than a point system, they can't use it without losing federal funds. If a state finds that something other than seat belts can provide better safety in an accident, they must still require seat belts or they will lose federal funds. The list goes on and on and on.

Of course federal leveraging by use of highway funds is not the only arrow in the federal quiver, we also see the federal money hand at work in education. Medicare and Medicaid socialized large segments of the health care industry and changed personal habits on the grounds that "risky or unhealthy behavior" could affect public expenditures for healthcare. Smoking, drinking, overeating, and lack of exercise are no longer considered as mere personal habits, but as unacceptable social behavior because they may cause higher Medicare and Medicaid costs and therefore should be officially discouraged along with "risky lifestyles".

The judicial and executive branches of government have been complicit in the expansion of federal control by various practices of extortion upon the states. The government has used the threat of withholding federal funds from states to coerce the states to violate the rights of their citizens by passing and enforcing legislation without the consent of their citizens and without providing the funding to pay the costs thereof, while still collecting the taxes from their citizens which provide the funds they threaten to withhold - and we have allowed this to happen.

Thomas DiLorenzo, a Loyola University (Maryland) professor of economics, wrote a book entitled "The Real Lincoln" in which he presents evidence that most of the Founders took the right of state secession for granted. Of course, the Civil War settled this question but certainly what the Founders envisioned was that if the federal government did what is being done now, a dissatisfied state could just leave the union.

Since this can't be done, do we allow the federal government to determine the scope of its own powers and accept whatever Congress, the White House and the courts say is constitutional? Alexander Hamilton thought otherwise. In Federalist Paper 28 Hamilton wrote, "The State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority."

Vincent Gioia is a retired patent attorney living in Palm Desert, California. His articles may be read at www.vincentgioia.com and he may be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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