Pennsylvania Tenth Amendment Center
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.”
Abuse
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.
Conclusion
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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Are you guys actually backing the Patriot Act??? Do you understand that fear of terrorism is going to be our undoing?
You are totally ignoring the root of the terrorism problem. Its our meddling, invasive, interventionist federal government that has created terrorism.
Look at it this way… If a foreign government invaded our country with the largest military in the world, that was backed with the most fearsome technology, and started killing us, our women and children… wouldnt we be forced to try and get the attention of that nations people by any means necessary. So maybe, just maybe they would see that their government is destroying us, and would do something to stop it…
We have grown so callous that we now think its ok to destroy someone else, before they do anything, all in the name of protecting ourselves. Apparently the propaganda out of Washington has done its job!
Any people willing to give up essential liberty for a little temporary security deserve neither liberty or security. (Benjamin Franklin)
Recently Obama Signed a One Year Extension To The Patriot Act.
It does not take much knowledge of history to understand how a corrupt U.S. Government could use National Security Letters under the Patriot Act—As A Political or Economic Weapon.
Currently in the name of fighting terrorism, U.S. Government can use National Security Letters to search a Citizen’s private information and records without having to provide specific facts—the person’s information sought pertains to a foreign power or agent of a foreign power. Government can impose National Security Letters without probable cause on your employer, your business client(s) credit card providers, even your relationships. After you receive a National Security Letter, under current law you can’t tell anyone. National Security Letters if used by a tyrannical U.S. Government, could be very threatening to Americans when you consider methods used by other governments. For example in Nazi Germany, the Gestapo routinely targeted and damaged business people and companies that refused to support the Nazi Government by—interrogating their customers—about them. Not surprisingly targeted business people and companies found it difficult to make a living after their frightened customers and clients distanced themselves after Gestapo interrogation. Some German corporations with ties to the Reich government used the Gestapo to scare off their business rivals’ associates and customers—to take their business. A corrupt U.S. Government could as easily use National Security Letters in the same manner and to intimidate Americans exercising First Amendment Rights.
Congress needs to pass legislation that prevents Government using National Security Letters to investigate Americans without first demonstrating a clear standard of probable cause.
Steve, great article!
I'm forwarding a copy of it to Sibel Edmonds. She is the founder and president of the National Security Whistleblowers Coalition (NSWBC), a nonprofit organization dedicated to aiding national security whistleblowers. She has interviewed many experts with first hand information about the subjects you cover in your article, but none of them have approached it from a 10th Amendment perspective that I know of. You should check out her podcast at: http://www.boilingfrogspost.com/tag/podcast-episo… or on itunes. As someone who chose this topic to write about, I think you would really enjoy her podcast, if you aren't a listener already!
Amazing article, lots of intersting things to digest. Very informative
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Could just have the feds keep them from entering the U.S.A. in the first places and catch them overseas, and let the states handle everything else, of course that would require sharing intelligence among the state Governments, and a rather aggressive immigration and VISA policy, which the politicians in Washington D.C. have been very reluctant to seriously touch.
I don't oppose the Patriot Act's goals. Catching terrorists and preventing terrorism are obviously good things. However, 1.) One size does not fit all. Money spent in Idaho (for example) under the Patriot Act can't be spent in Philadelphia, a more likely target. There is a hidden cost to trying to blanket the whole country with a single security policy. 2.) It is necessarily true that more money will be lost to bureaucracy and corruption if it is funneled through Washington, DC than if it isn't. The more efficient way to spend money preventing terrorism is for the states to do it. The states also know better than Uncle Sam what their own, unique security needs are.
I have long been a supporter of the Patriot act, this is clear in the records of my forum post, I did not however know this.
They should be forced to redo the act, and States nullying in practice the legitimacy of such parts of the act on Federal Constitutional grounds might be the best way to do that.
The Federal government may have the responsibility of protecting us from external threats such as international terroist, but they still need to find ways to carry our that responsibility to the extent possible using only the limited powers allowed them.
Nullying this shoudl be fairly easy and indeed a reading of the Georgia "State Authority and Anti-racketeering Act." you linked in anther post.
http://www.legis.ga.gov/legis/2009_10/versions/hb…
This bill should enable the State to proactive do exactly this.
After all as the bill makes clear no agent of any government is immune from the law, that means the Federal Government cannot give it's agents the ability to break and enter with out a constitutionally valid warrant.
Local and State Law enforcement can enforce the local laws against such things just as they do when private criminals do it. In this way the Federal Government will be held within its Constitutional bounds activity. And thus we will have checks and balances again. In this particular situation the State of Georgia would Attach an additional racketeering charge adding 30 years to their sentence in addition to clearly defining the limits of the federal agents powers for law enforcement.
I’m with you there – that way the decisions are based on republican principles – local, self-government – as the founders and ratifiers created for us.
I don't oppose all aspects of it and should be redone to ensure protection against the government.
States should nullify it then if they don't want it and enact their own anti-terrorist measures.
Judge Andrew Napolitano calls the patriot act the worst piece of legislation in this country since the Alien and Sedition acts – that was in 1798.
I'm not that opposed to most things in the patriot act (it needs to be redone to ensure constitutionality) but if a state nullifies it then it would end it over night and force the federal government to do another one that is more suitable to the people of all fifty states.
It's maddening to hear politicians and pundits who call themselves "conservatives" — actually Neoconservatives — who claim terrorists shouldn't receive the rights of Americans.
Long, withering sigh.
That betrays a basic misunderstanding of the Bill of Rights in general, and the 10th amendment in particular. The Bill of Rights was intended to limit the power of the Federal government, not to "grant" citizens their basic rights. The misuse of National Security Letters is a blatant assault on the Bill of Rights.
Since reform is NOT going to come from the District of Corruption, it's time the people of the States re-asserted their sovereignty and put DC back in its place.
For starters, that is …