Public Comment

The People’s Health is a Power Granted the People

By Steve Martinot
Thursday June 26, 2008 - 09:42:00 AM

On the issue of cell phone antennas, Berkeley has been trying to walk a fine line between local protection of its citizens and obeying a federal statute which says that people’s health cannot be used as a reason for refusing permits to the communications industry with respect to its cell phone antenna towers. Recent arguments advanced by the State of Oklahoma might help resolve the issue for us.  

In Oklahoma, the 10th Amendment to the U.S. Constitution has been invoked to refuse any condition that renders the state an agent of the federal government, and thus to free the state from undue federal control of its affairs. I want to propose that we can act similarly on the issue of health with respect to cell phone antennas. And there is growing evidence that the radiation from those antennas is detrimental to the health of residents in their immediate vicinity (see below), along with growing evidence that the cell phones themselves are causing tumors and cancers. 

The 10th Amendment to the Constitution of the United States reads as follows: “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 Oklahoma resolution goes on to say, among other things, that the 10th Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more. 

Interstate commerce falls under the purview of federal regulation. No argument there. But the health of people is a local matter, even when it involves entities engaged in interstate commerce. There is nothing in the Constitution that grants the federal government the power to regulate health, nor to act in detriment to local health conditions, nor to abridge the power of local government or the people to defend themselves against health risks. 

Whereas Oklahoma has interpreted the 10th Amendment as saying that the states are not required to act as agents of the federal government, or of federal policy, we can interpret the same amendment as saying that, since nothing in the constitution gives the federal government the power to dispense with or regulate the health or well-being of its citizens, then the power to protect and maintain the health of the people is reserved to the states or the people as such. That means us. In light of the absence of the power to regulate local health conditions being granted the federal government, that power is actively and positively granted the people by the 10th Amendment. That means, it cannot be abridged by the federal government without violation of the Constitution. 

Furthermore, on the question of federal mandate, for the people (local governance) to protect themselves against health risks does not involve the refusal of such a mandate; in fact, it is the opposite. The federal statute is demanding that local governance not fulfill the mandate given it by the 10th Amendment by not acting to protect the people from potential health risks. 

This means, in sum, that as a city, or a county, or a state, we can refuse to grant credence to federal statute suppressing our concern for and regulation of our health maintenance and health risks. Perhaps, during the present moratorium on permitting antennas, we as a city can research some of these possibilities. It does not mean blocking the technology, but insisting on safer use of it. 

Let me conclude by enumerating some of the health risks involved here. The industry has said that their cell phone antenna radiation (microwave, radio frequency electromagnetic radiation) is safe at low intensity because it does not heat the human tissue it touches, as does a microwave oven (high intensity microwave radiation). It is too weak to produce a rise in temperature. But the controversy is over the non-thermal effects of this radiation, which the industry assurances do not address. These effects, based on both laboratory and epidemiological (community at large) studies, include a rise in the incidence of brain cancer tumors, lymphomas, breaks in DNA strands, leukemia in children, changes in sleep patterns, headaches, disruption of the blood-brain barrier, cell death, changes in calcium ion concentrations, in neural electrophysiology, eye damage, increased blood pressure, and memory impairment. We are not speaking of absolute or linear causal effects, but of statistically significant increases in incidents of these health problems.  


Steve Martinot is a Berkeley resident.  

For more information on the health risks  

discussed above, see