One result of diluting the Tenth Amendment for the last century is a federal government which has nearly eliminated any limits which had been placed upon it. Here, we compare two examples of overreach from overly powerful central governments in the American experience.
Writs of Assistance
According to Our Country (1877) in the Public Book Shelf, writs of assistance were “warrants to empower them (agents) to call upon the people and all officers of government in America to assist them in the collection of the revenue, and to enter the stores and houses of the citizens at pleasure, in pursuit of their vocation”. These warrants were granted to secret agents who had been sent to “collect information about the character and temper of the people, and bring together facts and conclusions that would enable ministers to judge what regulations and alterations might be safely made”.
Many of us will remember from our own education that these writs of assistance comprised one of the flash points leading up to the revolutionary war. James Otis, arguing against them in the Superior Court of Massachusetts said in 1761, “It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book” and “No Acts of Parliament can establish such a writ. Though it should be made in the very words of the petition, it would be void. AN ACT AGAINST THE CONSTITUTION IS VOID”. According to The Concord Review, Otis’ argument represented a turning point in the life of John Adams, and the birth of Independence in America.
National Security Letters
Fast forward 240 years to the Patriot Act, which contains a controversial provision known as National Security Letters. Andrew Napolitano says that (as with many other recent bills) the Patriot Act was rushed through congress, unread, in an “emergency”. According to the FBI, a national security letter (NSL) is “a letter request for information from a third party that is issued by the FBI or by other government agencies with authority to conduct national security investigations” in another context, this might sound like a search warrant. The FBI also says “In the post 9/11 world, the National Security Letter is an indispensable tool”. Note what they don’t say. Nowhere on the FBI’s page does it say that NSLs are authorized by any branch other than the executive branch. Like writs of assistance, but unlike a search warrant, NSLs are executed and approved by the same branch of government.
It’s a bit of a diversion from the fundamental issue, but some might claim that this power is only used to catch terrorists, so law abiding citizens don’t need to worry about it. Well…. According to Napolitano, as of 2007 not one single person had been convicted of terrorism based on evidence obtained through an NSL, or even the Patriot Act. Besides, as Thomas Paine wrote, “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”
Apparently, even the NSL bridle is too restrictive for our central controllers. According to Wired magazine, the FBI issues 40,000 NSLs per year (still think they’re only targeting terrorists?), but even that is not enough. The FBI requested and obtained still more information using exigent letters and other informal processes. And in a not-so-surprising surprise, the executive branch declared that skirting the rules like that was not illegal.
It is not surprising that we see some parallels between our government, in Washington, DC and the British government of colonial times. Our founders recognized that it is the nature of government to follow this consistent pattern. To try to prevent this in America, as we all know, they developed a system of checks and balances. One of the checks which has been far too neglected is the Tenth Amendment. We see that even before the revolution, Liberty minded people like James Otis recognized that a law which claims to usurp our inalienable human rights is no law at all. The Tenth Amendment is the tool which the founders gave us to remind our federal government of that fact. If we want to restore limits to our government, before it’s too late, we need to remind our state officials, loudly and often, about the tenth amendment.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
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