State’s Rights Can Live Again

Signing of the U.S. Constitution


There is a loop hole that the Federal Courts have been using for years. Millions of us over the years have wondered, “How can the government do that?” or “That’s not in the Constitution, is it?” No,it is not!! So how? Answer: ” IMPLIED POWERS OF THE CONSTITUTION” Please let me explain.

These powers are implied, not expressed or enumerated! The courts and Congress have found a home for these implied powers in article 1, section 8, in the final clause (Necessary and Proper clause) of the section. This issue of implied powers is what split our Founders. No sooner had the Constitution gone into operation than a bitter argument arose between those who favored a strong central government and those who favored a central government of limited powers with strong governments in the states. The first group is known as Federalists and the second as Anti-Federalists. The Anti-Federalists, led by Thomas Jefferson, George Mason, and Patrick Henry, would have had the Constitution construed strictly, according to the letter. The Federalists, led by Hamilton, and John Adams, favored a broad interpretation which would render the Constitution adequate to the expanding needs of the country. The issue of whether or not Congress was to enjoy implied powers, became an important major issue between political parties.

Unfortunately, the first two Presidents were Federalists: Washington and Adams. Subsequently, the first two Chief Justices were Federalists: John Jay, and Ellsworth. When the leader of the Anti-Federalists, Thomas Jefferson, won the election of 1800, Adams, before leaving office, appointed several federalist judges, most influential was John Marshall , an eminent Federalist, as Chief Justice. Marshall’s expansive decisions on the Necessary and Proper clause loosened it to mean simply helpful not necessary. In one of his decisions he wrote, “We must never forget that it is a constitution we are expounding.”

Since the 1930s, Congress has enjoyed continual growth of power with the loosening of the Necessary and Proper clause, combined with expansive readings of the Commerce clause, Spending and General Welfare clause. Over the years, these “implied” precedents and case law decisions have resulted in: Federal Education, Social Security, Medicare, HHS, HUD, ATF, DEA, FDA, OSHA, EEOC, EPA and most recently TARP, Stimulus Bill, government take-over of banks and auto manufactures.  The list goes on and on.

So what do we do? I would like to see a re-Declaration of Independence. Instead of King George, it will be Federal Government that will be addressed. In this declaration it will have to mention: Absolutely No Implied Powers are Given to Congress; all Executive Orders must be in the open and go through Congress or a possible abolishment of ALL Executive Orders. All powers are reserved to the States, equally.

We have to identify where we went wrong and how we will get out of it. I believe that if we want this change, we can NOT look towards the next President or Senator. WE THE PEOPLE have to demand that our States Revoke all implied powers. If implied powers are revoked, the Ninth and Tenth Amendments will finally become relevant for the first time in our history. All States will need to unite again and have a Constitutional Convention. The Convention must reverse the Implied Powers Doctrine and many other expansive implications, misinterpretations, and exclusions of the Constitution. This Convention and conversion of bureaucracies could take years. It can be done.

If you agree, whether Democrat or Republican, you should concentrate on how to change the system using the Constitution and our country’s history as a common guide. Once the federal government is controlled by the Constitution, then it will not matter who is President, or Congressman, or a Supreme Court Judge. But first and always, we demand from our politicians, a strict interpretation of all constitutions and that this issue alone, be the standard for getting elected and/or staying in power. Next time they swear into office, they better mean it. We must let our federal leaders know, the game is over, we all know your tricks and our children will know and their children will know.

There is a bill called HR 450 “Enumerated Powers Act” that could use OUR SUPPORT. This will require Congress to enumerate, not imply, when passing Bills. I like it. You can find it at : HERE. Leave it up those Birchers, God bless ’em.

Rian Hatcher is an Army veteran and lives in Indianapolis. He blogs at Town Hall at The Rooster Crows.

49 Responses to “State’s Rights Can Live Again”

  1. Thank you Dr. Theo and Dakota Voice for posting my message and in helping shine more light on this subject. Also, thank you to your readers. I’m just a self educated man who is passionate about personal responsibilities and limited governmental powers. However, I did have a Constitutional Lawyer, John C. Eastman (Dean of Chapman Law and currently running for AG of State of California), look over this and make a couple of clarifications. He said I’m on the right the track, so We The People are on the right track. If you live in California, vote for Eastman for me, I owe him one. It’s people like him (probably him) that will lead the fight eventually, but he needs us to put political pressure on our current leaders. Please take this message/ideas to do what you can. I’d love to hear what you think.

  2. Yes. I would agree. I also feel that All of our founders, including chief Justice John Marshall, would say something went terribly wrong and they probably say start over and do things like implied powers, differently….not at all. But now we have the internet and other mass communication needs. We really don’t need a big federal government. Our states can communicate and mobilize a lot faster than 1798, which is what Chief Justice Marshall was concerned about, since he witnessed it in the Revolution.

  3. Thanks Wayne, for linking my post and your comments. I watched your You tube link and want to add that I am glad our Founders were Christians and not of some other religion and I’m not religious. They also remember what religious intolerance did to Jesus Christ and his Disciples.

    And thank you for pointing out that “states right’s creates for the people a bloodless way to say no to the Federal government.” That is why NOW is so important to get behind state’s rights. Thanks again.

  4. Well put Dr. Leo, I also argue that the Bill of Rights protects us from a over powerful state or governor, too. The Bill of Rights, if used correctly, is the most powerful American document, again, if used correctly.

  5. For the first 150 years of the union, Congress acted, for the most part, according to Madison's dictum: “Let there be no change [in the Constitution] by usurpation. For though this, in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

    This all changed when Franklin Roosevelt addressed the nation in one of his fireside chats saying “”we have therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself.” (March 9,1937) This was a rebuke of the Supreme Court that had struck down eight of ten New Deal measures as unconstitutional.

    Roosevelt was eventually successful in packing the courts and the New Deal was soon well established with the practical slogan being “damn the Constitution and enumerated powers, we know what's best for America.” We now see where that political philosophy has brought us.

    I agree that the only hope for America to remain free and prosperous includes restoring the federal government to its Constitutional role and states to their role as political laboratories from which individuals may vote with their feet.

  6. Dr. Theo hits another home run. Standards and principles are essentials in morality. .The Constitution’s standards and principles was supposed to be a constant, which is a good quality. Sure, it’s impersonal and lifeless, but now, the Constitution’s standards and principles have been altered and loosened to make the Constitution “live”. In doing so, the Constitution represents its leadership—poor morality.

  7. It is obvious to me that our own original founding fathers, the very ones who crafted the Constitution, were in disagreement as to the essence of the Constitution. The early Federalists( sympathetic Washington and the more official ones, Adams and Hamilton) felt the Constitution's 'implied powers' called for a strong central government. The early anti-Federalists( Madison, Hamilton ) felt the Constitution had no such 'implied powers', .

    The Constitution was unclear to our early founders,who were responsible it

    Wouldn't it be fair to say that both sides interpreted the Constitution differenly right off the bat and the debate is simply still going on ?

  8. Linked to your post from We The People • State Sovereignty

    If one agrees that a mop can be a tyrant or that the government can be a tyrant. Then one needs to agree that government power needs to have a check or limit or balance of power. State's right were created because of that need. State's right's creates for the people a bloodless way to say no to the federal government. It may not need to be used much but God knows we need to use it today if Obama, Reid and Pelosi use cultish intimidation, force and reconciliation for over rule deliberate due diligence on health care, Gun control, energy usage …

  9. Patrick Henry argued that the “necessary and proper clause” would lead to “limitless federal power that would inevitably menace civil liberties,” while Federalists argued that the phrase “all other Powers vested by this Constitution” would prevent excesses by requiring adherence to the enumerated powers set by the Constitution. We see today that Henry's view was the more prescient.

    So it wasn't so much an interpretation problem as much as a deep distrust of a centralized government on the part of Anti-Federalists. The Bill of Rights were added to the Constitution in order to strengthen the Anti-Federalists' position. The Federalists thought there were adequate safe-guards in the Constitution to prevent misuse. Taken in the context of the Constitution in whole, a very limited interpretation of this vexing clause was the rule among most of the Founders.

  10. Thank you for creating the original post it is an important topic. There are state rights people on Twitter I’ve just recently started a list

  11. dr theo

    I agree with you that the scope of Federalists and the anti-Federalists argument was narrow and rooted in the anti-Federalists distrust of a 'too strong' central government.

    But then you say ” The Federalists thought there were adequate safe- guards in the Constitution to prevent misuse”, which is true. But the anti-Federalists were looking at the very same Constitution and felt there weren't adequate safeguards, thus as you say, the Bill of Rights was added.

    Isn't interpretive differences at the core of the argument then- One side felt the original Constitution had enough safeguards and the other read the same document and interpreted it differently.

    My only point is that their is a precident for 'interpretive Constitutional arguments' as seen from our Founding Fathers, from day one.

  12. I don't mean to be argumentative over this. I think you and I generally agree. The way I see it the Anti-Federalists were just much more distrustful of future government leaders. They wanted to make sure that they left them no “wiggle room” on this matter. The Federalists were saying they had more trust in the leaders elected by the people. With power divided equally in three branches, they didn't see how one branch could get away with much mischief. All that might have been true were all our leaders true patriots and devoted to upholding the Constitution.
    Who could have foreseen men like Roosevelt who sought to change our country in ways that would nearly lead to our destruction. Then Obama comes along to try to finish us off once and for all. The Federalists simply could not imagine the guile and deceit that some men would use to subvert the Constitution.

  13. Well said, Dr. Theo. Both the Federalists and Anti-Federalists hoped the American people would remain informed and engaged in the political process, and would not see the public character greatly diminished (unfortunately we have disappointed their hopes). They all knew that the health and survivability of our republic depended on essentially one thing, voiced by Federalist John Adams:

    We have no government armed with power capable of contending with human passions unbridled by morality and religion…Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

  14. Thank you, Mr. Ellis. Mr. Adams' opinion has been vindicated and I have a glimmer of hope that his sentiment is gaining credence during this current crisis.

  15. After thinking about it some,I think you are right. It was more the Founders distrust of mankind itself and it's innate tendency to err, than an interpretive issue.Good conversation !

  16. Dr. Theo, my posting takes awhile. Sorry.

  17. Thanks again, Wayne. I bookmarked your site and will read more.

  18. Rian, it looks like I got behind in getting comments posted, so if you've been wondering where some of yours were, the delay was mine. My apologies.

  19. Rian

    ” They also remember what religious intolerance did to Jesus Christ and his Disciples” . I think our Founders were more acutely aware and reacting to the intolerance of Christians themselves across the pond, who brutally persecuted those who did not believe as they did. Both foreign Catholics and Protestants were guilty.
    The Catholic church was well known for its intolerance abroad as were the 'reformers' like John Calvin etc for their absolute intolerance to those who didn't accept their Christian religion. Even our own Massachusetts Bay Colony and some of the early colonies were intolerant and many had blasphemy laws that punished those who didn't accept God and Christ as they saw fit.

    I think it is clear that the founders mainly objected to how Christians were treating other Christians, here and abroad, that led them to believe that no religion could ever be supported in any way by the government

  20. I thought this is on my end. i did the DISQUS test message to speed up my responses. I have to work all day so I'll check in on it after 4:00 pm. Thank you for your time. I'm sorry to all who waiting for a reply. Have a good day.

  21. For reference. The author calls for an Article V Convention but obviously is unaware of public record. Otherwise he would have simply said Congress should obey the Constitution and call the convention as all 50 states have already submitted over 700 applications for a convention. That's some 20 times the number needed for Congress to call a convention. The applications can be read at The author should urge in any future articles we he discusses this matter, that Congress should obey the Constitution and call the convention.

  22. Speaking of the Constitutional Convention, I failed to take particular note of this when I read the article yesterday.

    The idea is tempting to call a Con Con to make certain parts of the Constitution so clear that even a liberal can't get around it (a daunting task, to be sure) like the commerce clause, “separation of church and state” nonsense, the enumerated powers, etc.

    However, Phyllis Schlafly, a conservative whose opinion I greatly respect, says such a proposition would be very dangerous (…). I have to admit that she has a good point.

    The moral fiber and intellectual prowess of our culture in general, and our “leadership” in specific, is far, far less competent than it was in 1787. A significant portion of our population is outright hostile to the American way of life, e.g. limited government, personal responsibility, free market, state's rights, etc. Many of these people desperately want the United States to follow in the socialist footsteps of the Euro-sheep…or worse, they look to mighty empires like Cuba as the model of how things should be in the U.S.

    The risk of allowing these people (who aren't the least interested in being fair or playing by any sort of rules) to directly influence our Constitution scares the daylights out of me.

    Some states like South Dakota are in the process of rescinding their call for a Con Con:

    I'm open to being convinced otherwise, but Schlafly's argument has me of the opinion that we risk too much to call a Constitutional Convention right now, without a significant renewal of the moral fiber of our nation, and a substantial effort to once again educate the citizens on the principles of Americanism.

  23. Cool. I appreciate your interest and help. That's a list I want to be on. Now you're going to make me join twitter. Ha ha. If you don't know this already, I am just getting started blogging and such. I apologize to all for not participating earlier. I'm a type slow and read slow but I'm getting better. Thank you all.

  24. I Bill. I find this interesting. First, thank you for the information. I've read Article V before and must have misunderstood it. I thought it only deals with Amendments, not clarifying the Constitution. I can see how both can go hand and hand. What things will be addressed? Revive privileges and immunities clause of the Fourteenth Amendment? Is this movement specific to the changes of the Constitution?

  25. Wow, a real surprise turn. I read Phyllis Schlafly's blog, I can see how the different interests are distorting and confusing the issue. That's why I think it should be an Anti-Federalist movement, meaning don't change it by putting new words in the Constitution or omitting any Amendment, but restoring the original intent. Who wants to get rid of the XV Amendments (Right to Vote). The XVI Amendment (Income Tax) is not very popular Amendment is it? But what would happen to the XVI Amendment if the federal spending was cut in half, because of restoring strict interpretation of the Spending clause, Necessary and Proper clause, and Commerce clause alone? You will probably eventually spend (taxed) less for the federal and at the same time state's income tax will probably rise. I'm still up in the air but I think this the only way. which leads me to think about Alexander tyler's cycle of democracies:

    “From bondage to spiritual faith;
    from spiritual faith to great courage;
    from courage to liberty;
    from liberty to abundance;
    from abundance to selfishness;
    from selfishness to apathy;
    from apathy to dependence;
    from dependency back again into bondage.”

    Then I wonder if we let the natural forces take their course and hopefully go from bondage to spiritual faith again. What do you think?

  26. I think the biggest problem with the federal government is its spending powers. That's were over steps our states' rights and personal rights the most, by expansive implications, misinterpretations, and exclusions of the Constitution. Things like Civil Rights, Woman's Rights, and Voter's Rights are ideas, not federal programs, and do not cost us much money to enforce federally or locally anymore. This is why I think we need a re-Declaration of Independence to state our grievances. Also to express the intentions of the Con Con, to restore the Constitution as best we can. Also, this will require the people to find the leaders, like John C. Eastman, Dean of Chapman law, to support and sign this re-Declaration, and these people will meet covertly to keep outside interests away. Otherwise, I fear there will be complete bondage or complete chaos.

  27. All I know for sure is that I'd like to short-circuit or skip that “dependency” stage if possible.

  28. All I know for sure is that I'd like to short-circuit or skip that “dependency” stage if possible.

  29. All I know for sure is that I'd like to short-circuit or skip that “dependency” stage if possible.

  30. Me too, Bob. But I fear, “dependency” is exactly where we are at now. Entitlement attitudes seem to be growing and this empowers those politicians who are willing to fuel these attitudes. Alexander Tyler went on to state that democracy will continue to exist up into the time that voters
    discover that they can vote themselves generous gifts from the public's treasury.

  31. Me too, Bob. But I fear, “dependency” is exactly where we are at now. Entitlement attitudes seem to be growing and this empowers those politicians who are willing to fuel these attitudes. Alexander Tyler went on to state that democracy will continue to exist up into the time that voters
    discover that they can vote themselves generous gifts from the public's treasury.

  32. Me too, Bob. But I fear, “dependency” is exactly where we are at now. Entitlement attitudes seem to be growing and this empowers those politicians who are willing to fuel these attitudes. Alexander Tyler went on to state that democracy will continue to exist up into the time that voters
    discover that they can vote themselves generous gifts from the public's treasury.

  33. I fear you're right that we're at that dependency stage. Not everyone in society by any stretch, but possibly enough to meet the societal criteria. I'm still hopeful we can salvage things, though.

  34. I fear you're right that we're at that dependency stage. Not everyone in society by any stretch, but possibly enough to meet the societal criteria. I'm still hopeful we can salvage things, though.

  35. I fear you're right that we're at that dependency stage. Not everyone in society by any stretch, but possibly enough to meet the societal criteria. I'm still hopeful we can salvage things, though.

  36. I hope you're right. Thank you again for the opportunity to get “a little Indiana voice” out. I found the discussion to be very insightful and thoughtful. You guys really have a good thing going, I'll try to help if I can sometime.
    I think this issue will continue to steamroll as government pushes their will. I really wish the American people would wake up soon. Good night.

  37. Thanks, Rian. It's been a pleasure discussing our great heritage with you–which is not a surprise, since I understand that you come from good stock. 🙂

  38. Bob and readers,
    I like to leave provide you a link to what I find was very interesting topic titled “Federalism and the Separations of Powers”, a discussion at the National Press Club about Founders' intent, Constitutional Provisions, and limits on spending powers and delegations. Dr. Eastmans response is worth noting and understanding.

  39. Oops I forgot to leave the link to the debate of “Federalism and the Separations of Powers”
    Here it is:

  40. Brian, I must have missed your comment. But I like to respond by saying thanks for adding that historic reference to many of our colonists' and Founders' attitudes. The history of the old world Europe might be more of a reason than the one I stated. I'll be sure to remember that.

  41. It seems to me the question should be ” Is a Constitution written over 200 years ago, by a tiny colony of 13 independent states still completely valid ?” . The Founders never conceived of a diverse, inter-connected,deeply dependent, multi-complexed, spread out awray of 50 states. They didn't conceive of massive interstate travel( air, rail, commerce) and the need for even some government regulations, since states didn't have a mechanism.

    They didn't conceive of Rockafellow's monopolizing oil prices and railways. The FBI. the CIA. ,an entire new department of Homeland Security, the Department of Veteran Affairs. Government funding in technology and medicine that has propelled, with private funding, us to wondrous heights in medicine and military technology.Fifty independent states just can't coordinate and control many, many things. Etc. Etc.

    I am fearful of this expanding government( especially now), but also reluctant to believe if we leave every thing to state control that the original Constitution did not literally say belonged to the Federal government, that one can say our country will absolutely be better, stronger, safer, better economically than now. What if we go back to the original strict, 'non-implied' interpretation of the Constitution and the states can't coordinate the necessary means to insure we continue to ascend rather than descend. Do we know it work for sure ?

  42. Wow, it's hard to say for sure, since it seems so foreign a concept, at least in this day and age. I think it is the only thing that can hold the Union together. Dr. Theo mentioned that this limited federal government and strong states' rights worked for the first 150 years. People back then were still fresh enough from tyranny and didn't trust governments of any kind. When the G-man started carrying firearms in the 1930's, a lot people were shocked. “How can our Federal Government have guns to use against our own people?” was a popular sentiment. I think global dangers of WWII, was what really let our guard down. War seems to strengthen the need for a strong federal government. Unfortunately, I hate to think this, but the current Congress and Administration is perhaps purposefully making our economy worse (spending) to divide us; “workers” v. “capitalists”. Unions are becoming stronger and I was talking to a girl today, who was at a Union meeting in Ohio and she said there was a lot finger pointing at our company. It had something to do with new contracts and health insurance. Ignorant workers with an entitlement-chip on their shoulders is deadly recipe for “reform”.
    Maybe we past the point of no return. Civil war is might be destined. Let's keep trying, please.

  43. Brian, I like to add to your question of whether our states can coordinated the necessary means to insure we continue to ascend or not? Security is what is needed by each state needs from each other. With today's communication abilities, the necessity for a strong Union is more easily obtained. The states have to still adhere to the Bill of Rights, and the Constitutional Amendments. They can not turn into a totalitarian state, because that violate our Constitution and Bill of rights. As for the bureaucracies of the states and local municipalities during times of change, I leave you with something I found in a poli-sci boook:

    “In France and Germany, which have experienced frequent and violent changes in constitutional authority and drastic shifts in policy, leadership, bureaucrats have acquired higher status. In Germany, for example, the bureaucrats managed, by following their institutionalized routine, to carry on the day-to-day activities of the government despite the revolutionary changeover from Imperial Germany to the Wiemar Republic, the transformation of the Wiemar Republic into the Third Reich, the upheaval of World War II, and the establishment of the Federal Republic. Between 1919 and 1954, thousands of German bureaucrats were responsible for maintaining government operations much as usual and at same time taking what measures were required to effect the very considerable change of policies implicit and explicit in a transition from different governments. The bureaucrats in the French government all though the political vicissitudes from the Third French republic to the Fifth French Republic, and including the Vichy Government. It is therefore understandable why bureaucrats in these countries are regarded more as public officials than as public servants: in times of crisis they are often the only evidence of legitimate authority and continuity in government.”

  44. I've heard the “the world has changed” and the variations on it argument many, many times and, being as polite as I can, it holds no water whatsoever.

    The scope, authority, and intent of the U.S. Constitution is 100% applicable for a small rural group of 13 former colonies, and is just as applicable in a 50-state technological superpower…and it would be just as applicable and useful were we to have 500 states spread over several planets in this solar system 1,000 years from now. The Constitution was inherently designed to deal only with those things which (a) concern us as a whole nation (e.g. defense, foreign trade, etc.) and (b) to referee internal things that involve more than one state (e.g. interstate commerce, protection of those God-given “inalienable rights” that all Americans are entitled to enjoy).

    The reason the U.S. Constitution is still fully applicable (and will never inherently become obsolete) is because it does not deal with material specifics such as travel, communications, technological innovations, etc. The individual States are more than capable (as well as retaining the rights under Amendment IX and X) of handling any regulation these areas require, and pursuit of “best practices” thinking will indirectly ensure don't change into wildly different creatures over time.

    Instead of dealing with tangible things, the Constitution deals with principles, with ideals, with values, and of course human nature. The U.S. Constitution was set up the way it was and limits government in the manner it does is because the Founders understood the principles of good government, and they also understood the fallen, sin-predisposed nature of humanity.

    The principles of good government will never change. Limited government will always work better to protect liberty, innovation and a healthy society than a large, intrusive government. Government that ensures justice and equality of opportunity will always foster a more healthy, energetic society than one that perverts justice and attempts to force certain attributes to be equal which can never be equal. And so on.

    Human nature will also never change. Humans will always have a tendency to feather their own nests and over-use power. Humans will always have a tendency to want to force others to do for and pay for things for them if they believe they can get away with it.

    Our constitution was designed to maximize principles of good government and negate the fallen nature which human beings tend to display in the absence of restraints. These things will never, ever change, and therefore the U.S. Constitution will always be fully adequate to keep a healthy nation thriving….provided we strive to be the kind of people John Adams said our Constitution was designed for:

    We have no government armed with power capable of contending with human passions unbridled by morality and religion…Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

    And a people who refuses to be these things can never have the kind of incredible civilization that the U.S. has traditionally been; no constitution or form of government can possibly be devised which will guarantee freedom and prosperity for an irreligious and immoral people. Societal immorality always makes freedom impossible because people cannot trust one another–or those representing their government–to be fair and just with one another.

  45. Beautiful. Bob, after reading your reassertion of the spirit and brilliance of Constitution and our Founders, I felt like Peter Bailey (It's a Wonderful Life), when he wanted to live again. Thank so much.

  46. Bob, I really would liked to blog your comment (if you haven't already, you should.) and link it on my blog. I think everybody should feel what you felt when wrote that. “Bob's Revival”. What do you think?

  47. Feel free. I'm honored that you found it so inspirational.

  48. Many thanks. If for nothing else, for me to regain my inspiration when feel helpless and remember, Bob is right and I am right. Don't give up.