Durk Pearson & Sandy Shaw’s®
Life Extension NewsTM
Volume 15 No. 4 • August 2012

Sometimes Big Things Can Happen
Without Fanfare
What If The Tenth Amendment Won Big Time
At the U.S. Supreme Court ... Would You Know?

The Tenth Amendment of the United States Constitution 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 Tenth Amendment isn’t the sort of thing you expect to see being supported at the U.S. Supreme Court. In fact, it is one of those things you expect to have faded into oblivion along with a lot of (most of) the rest of the Constitution. Well, something funny happened on the way to oblivion ...

The Tenth Amendment was supported in a UNANIMOUS U.S. Supreme Court decision Bond v. United States, No. 09–1227, decided June 16, 2011.

The case itself was a pretty unlikely basis for a momentous decision. In Carol Anne Bond, Petitioner v. United States, Bond had admitted to attacking a former close friend she suspected of having an affair with her husband (and of becoming pregnant by him) with a noxious chemical, as well as smearing the chemical on surfaces the woman was likely to come into contact with. She was indicted under a Federal statute, but appealed, her attorney arguing that the statute exceeded Congress’ constitutional authority under the Tenth Amendment to enact as it involved entirely local matters that should have been dealt with by state law. In fact, Bond would have faced a much lower period of imprisonment under state, as opposed to Federal, law. Bond was ruled by the Third Circuit to lack standing in her Tenth Amendment challenge to her conviction under Federal law.

The appeal to the U.S. Supreme Court reversed the Third Circuit and held: “Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States. Pp. 3–14.”

The language used to explain how the Court reached its decision (the unanimous decision was delivered by Justice Anthony Kennedy) included some remarkable and quite revolutionary stuff. For example:

“The indicted defendant, petitioner here, sought to argue the invalidity of the statute. She relied on the Tenth Amendment, and by extension, on the premise that Congress exceeded its powers by enacting it in contravention of basic federalism principles. The statute, 18 U.S.C. §229, was enacted to comply with a treaty, but petitioner contends that, at least in the present instance, the treaty cannot be the source of congressional power to regulate or prohibit her conduct.”

“The Court of Appeals held that because a State was not a party to the federal criminal proceeding, petitioner had no standing to challenge the statute as an infringement upon the powers reserved to the States.”

“Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-a-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.”

“But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. ‘State sovereignty is not just an end in itself: “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’“ [case citations follow but have been deleted here.]

“Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

“An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.”

“The principles of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government [case cited here] and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U.S. 549, 564 (1995) The unconstitutional action can cause concomitant injury to persons in individual cases.”

“There is no basis in precedent or principle to deny petitioner’s standing to raise her claims.”

This decision is really worth reading in its entirety. Something has happened at the U.S. Supreme Court—and though we certainly can’t read the minds of the Justices, reading the words delivered in this opinion was enough to knock us off our chairs. There is a breathtaking emotional content in this decision affirming that federalism exists (and note the reference to U.S. v. Lopez, where a federal law banning the possession of a gun within a certain distance of a school was ruled by the U.S. Supreme Court as an unconstitutional overreach under the Commerce Clause), that federalism is very important to individual liberty, and that the powers of the National Government are limited under the terms of the Tenth Amendment.

Yikes! The Tenth Amendment lives!!

If the scale of a country renders it unmanageable, there are two possible responses. One is a breakup of the nation; the other a radical decentralization of power.

— Gar Alperovitz, The New York Times (10 Feburary 2007) (as quoted in Thomas N. Naylor, “Secession” (2008)

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