To argue that federal court cases stand for absolute, unchanging rules ignores the US S CT’s own rulings and advocates originalist doctrines–a doctrine most, if not all, liberals or progressives reject.

This unchanging-rule view implies that the parameters of Congress’ power cannot change based upon the law’s letter, despite the fact that the circumstances which gave rise to that letter have changed or no longer exist; thereby leaving the people to suffer under a law that no longer serves their needs. Most people, including the courts, have rejected this approach to constitutional rules.

As the US S CT stated in Planned Parenthood v. Casey, rules of Constitutional law are not absolutely fixed; they are analyzed based upon a host of circumstances, social and otherwise. This constitutional view is a discipline in both inductive and deductive reasoning, among other interpretative tools.

Where the facts in a specific case reveal a need to change a rule, the Courts will find the rule’s outer limits and begin shaping new rules. US S CT Justice Benjamin Cardozo stated the same in his book, The Nature of the Judicial Process.

To admit that the constitution is living admits that Congress’ power is subject to social and changing conditions, especially when the grant of power under review is vague and not subject to absolute certainty; such as, “shall have the power to regulate commerce among the States”.

This is what I argue in my Amicus Brief to the 9th Circuit recently ( The Appellant’s main brief argues the same:

One of the methods of determining social change is through State action. (This is based upon the reality that laws that originate closest to the people reflect more accurately their will and consent–this also was one of the main reasons for keeping the States as States in the 1787 US Constitution.) The federal courts have acknowledged the States’ role in making this determination of social change, including the Raich court. The 9th Cir. said respective of the States’ influence:

“[A]lthough changes in state law reveal a clear trend towards the protection of medical marijuana use, we hold that the asserted right has not yet gained the traction on a national scale to be deemed fundamental.” Raich, 500 F. 3d at 869.

“Has not yet gained” more than implies that “changes in state law” may reveal at some point that the “asserted right…is to be deemed fundamental”, thus limiting Congress’ power.

Were the States to do nothing to protect their citizens and to advance liberty, the people’s liberties would rest completely and solely with how fast or slow Congress reacted to social changes–presuming they even respond correctly. Given our vast nation’s population of over 300 million and the complexity of our interests, can any reasonable mind believe that Congress’ wisdom and foresight is sufficient to meet all of the needs and wants of the entire nation?

When was the last time you had in depth and meaningful conversation with Montana’s one Representative or two Senators on why marijuana should be legalized or removed from Schedule 1–much less the host of issues we deal with on a day to day basis?

To claim the States have no part to play in the revelation of social change denies our constitutional system and rejects how the federal courts determine whether an action is deemed fundamental to deserve protection under the living constitution view.

States are fortunately granting more liberty to their citizens relative to marijuana. This is a direct sign of changing social conditions that warrant a reevaluation of Congress’ power to deprive citizens of an accepted liberty.

Thus, Alexander Hamilton and James Madison’s view of the US Constitution was right when they said in the Federalist Papers that the States will watch the federal government and the federal government will watch the States for usurpation and that the people must ultimately resolve the conflicts.

Our federal system is not always easy as conflict is inherent. This is not a bad thing, however, according to progressive philosopher, John Stuart Mill in his work, On Liberty (1869). Our federal system is a powerful system of checks and balances for an advanced and complex society, as it works towards expanding individual liberty through the tests of trial and experience.

We should not discourage conflict, nor should we desire to monopolize power that could be used to harm the people. Open and debated conflict is the most effective method of revealing truth and objective reality–a price of liberty we as free people should be willing to pay.

Timothy Baldwin
Latest posts by Timothy Baldwin (see all)

The 10th Amendment

“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.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.