by Diane Rufino, July 11, 2015
US CONSTITUTION: AMENDMENT PROPOSAL
An amendment to replace the States’ influence in the federal government since the 17th Amendment was adopted.
“…If no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself.” — James Madison, in a letter to Thomas Jefferson, 1832
Whereas, “The Creator has made the earth for the living, not for the dead. Rights and powers can only belong to persons, not to things.” (Thomas Jefferson). Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;
Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;
Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;
Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to certain responsibilities;
Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;
Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;
Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;
Whereas, the Preamble to the Bill of Rights expressed the unambiguous intention of those amendments, and reads: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”;
Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads: “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”;
Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;
Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.
Whereas, the federal government has created for itself an absolute monopoly over the possession and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;
Whereas, the federal government has used said monopoly to change the nature of the Constitution and redefine its terms without using the lawful route, Article V;
Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government have made it a blank piece of paper by construction;
Whereas, the federal government, through the consolidation and concerted action of its branches and said monopoly, the government has created a government that is bloated, vested with illegitimate powers, coercive, wasteful, corrupt, and out of touch with the People, is one in which less than a quarter of the people have trust in, and most importantly, is one that poses serious threats to the exercise of the freedoms that Americans are promised;
Whereas, the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;
Whereas, the States need a voice directly in the federal government in order to break up its monopoly and to serve as the only effective check to prevent unconstitutional laws from being enforced;
Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years
And Therefore, in order to replace the States’ influence in the federal government since the 17th Amendment was adopted, to recognize their sovereign right to meaningfully defend their sphere of power embodied in the Tenth Amendment, and to have them, as the parties who created and adopted the Constitution and from which the government’s powers derived, be the tribunal which offers the opinions of constitutionality, the following amendment is proposed to alter the make-up of the Supreme Court:
- The Supreme Court’s membership will increase from 9 to 50. This way, citizens don’t incur the outrage that comes from a decision handed down by a mere 9 mortals, each motivated like other politicians with politics, legacy, passions, opinions, prejudices, personal preferences, ideology, etc., or the more outrageous situation of a 5-4 decision.]
- Justices to the Supreme Court will be assigned by the States. Each state will select one justice to the Court. That justice will be selected by the particular state legislature (or popular referendum).
- Justices selected by each state MUST have a documented history of adherence to the original meaning and intent of the Constitution and MUST have cited supporting documentation for its meaning and intent, including the Federalist Papers and the debates in the various state ratifying conventions. [Any change to the Constitution, including to reflect “modern times,” must be in the form of an amendment].
- Justices can serve an unlimited term, but that term can be shortened upon a showing of incompetence, disloyalty to the state, or by violating the previous provision.
- Justices will require each law passed by Congress to be prefaced with the particular grant of delegated Constitutional power which grants legal authority for that law. [Having 50 justices will allow the Court to render an initial opinion on the constitutionality of each piece of legislation, thus giving Congress the opportunity to be more cautious and responsible with its office.]
- The first task of the newly-seated Supreme Court will be to review the federal budget for spending that is not constitutional. The analysis will be used to remind Congress what are the constitutional objects of spending, to adjust federal taxation, and to help return policy-making and legislative power to the states.
- The next task of the newly-seated Supreme Court will be to invalidate all federal mandates (*) and eliminate all funding the government uses or plans to give/offer the states through “conditioned” grants or other forms of funding, contractual or otherwise. [Mandates are directly in violation of the 10th Amendment to the Constitution of the United States; Congress may not commandeer the legislative and regulatory processes of the states. With respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution. Such funding will end and the reduced federal tax rate will allow the states themselves to tax according to their own schemes to fund their own projects.]
- The Supreme Court’s new membership will establish new constitutional law jurisprudence. They not be bound by any previous court decision and will agree to establish continuity in jurisprudence only among their own decisions.
- Congress will not attempt to limit jurisdiction on this newly-organized Supreme Court in an attempt to frustrate the intent of this amendment.
- Because the Constitution is the peoples’ document – their shield against excessive government in their lives and affairs – the justices will honor the rightful expectation that it is firm and unambiguous in its meaning. “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.” [Justice William Patterson, in Vanhorne’s Lessee v. Dorance (1795)]. A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. The purpose of having a stable and firm constitution is so that when government transgresses its limits, the people can immediately recognize such action. [Thomas Paine]. Any change in the meaning of the US Constitution will be sought through the amendment process provided in Article V.
There is one principle upon which the Supreme Court should most firmly stand united. It is explained, proclaimed, assured in Federalist #78: “There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
The servant has indeed become more powerful than the master.
The reason the servant has become more powerful than its master is because the Supreme Court has expanded and re-defined the authority granted to the Congress and to the Executive in the US Constitution. And in order to do so, it first had to expand and re-define its own authority, which it did in 1803 – only 12 years after it heard its very first case (in 1791).
The first question we must ask is this: What is a constitution? A constitution is instrument by which authority for government is delegated from its natural depository. As the Declaration of Independence makes abundantly clear, the laws of Nature and God’s Law have established that man himself is vested with this authority. There is a natural order… First there is man, then there are communities when men join together, and finally, there is government established by social compact whereby rules and laws are established so that men can live successfully among one another, enjoying security and without surrendering their essential rights and liberties (including property). Thomas Paine, in his publication Rights of Man (1791-92), wrote: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.” In other words, government action needs legitimate authority and that authority must be spelled out so that people know at which point power is being abused.
Justice William Patterson explained in more detail the significance of a constitution in one of the Supreme Court’s earliest cases, Vanhorne’s Lessee v. Dorance (1795): “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.” He continued:
“In England, the authority of the Parliament runs without limits, and rises above control. It is difficult to say what the constitution of England is; because, not being reduced to written certainty and precision, it lies entirely at the mercy of the Parliament: It bends to every governmental exigency; it varies and is blown about by every breeze of legislative humor or political caprice. Some of the judges in England have had the boldness to assert, that an act of Parliament, made against natural equity, is void; but this opinion contravenes the general position, that the validity of an act of Parliament cannot be drawn into question by the judicial department: It cannot be disputed, and must be obeyed. The power of Parliament is absolute and transcendent; it is omnipotent in the scale of political existence. Besides, in England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different: Every State in the Union has its constitution reduced to written exactitude and precision. What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, as absolutely void…..
I hold it to be a position equally clear and found, that, in such case, it will be the duty of the Court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both Legislators and Judges are to proceed. It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”
What makes the Constitution stable and permanent is the strict and consistent understanding of its terms and its intent. James Madison, who is considered the author of the Constitution, advised: “If we were to look for the meaning of the instrument [Constitution] beyond the face of the instrument, we must look for it, not in the general Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.”
In 1776, the 13 original British colonies in America sent delegates to a general congress, who there, for the colonies they represented, made the declaration “that these united colonies are, and of right ought to be, free and independent states.” The permeating principle pronounced and proclaimed in the Declaration of Independence was that every people had the right to alter or abolish their government when it ceased to serve the ends for which it was instituted. Each State decided to exercise that right, and all of the thirteen united (with their representatives pledging their lives, their fortunes, and their sacred honor) to seek independence from Great Britain. A long war ensued. After a heavy sacrifice of life and treasure, the Treaty of Paris was negotiated in 1783, by which Great Britain recognized the independence of the States separately, not as one body politic, but severally, each one being named in the act of recognition.
In 1777, the delegates from each of the thirteen States, met once again in the general congress and agreed to “certain articles of confederation and perpetual union between the States.” They agreed that the union formed would be a confederation of states. That no purpose existed to consolidate the States into one body politic is manifest from the terms of the second article, which was: “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in congress assembled.” The meaning of this article is quite plain. Under the Articles, representation in the Congress of the Confederation was one vote per state, irrespective of population or the number of delegates in attendance, and the powers available were only those expressly delegated, with all others being reserved to the States separately. Under the Articles of Confederation, the War for Independence (Revolutionary War) was conducted.
On October 19, 1781, British General Charles Cornwallis surrendered his troops at the battle of Yorktown, Virginia, and the colonies were finally free! It was not until September 3, 1783, with the signing of the Treaty of Paris, that the Revolutionary War came to its final conclusion.
In the face of the Declaration of Independence, and of the Articles of Confederation, and of the Treaty of Paris, it is clear that in 1783 each State was a sovereign, free, and independent community.
After the pressure and necessity of war was removed, it became clear that the “common government” – the Congress of the Confederation – was impracticable and ineffective to administer the general affairs of the Union; it would need to possess additional powers. In 1786, 12 delegates from 5 states (NY, NJ, PA, DE, and VA) gathered at a tavern in Annapolis MD to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected. That was the limited purpose of the convention. Other states were supposed to attend but never made it in time. (Under the Articles of Confederation, each state was largely independent from the others and the national government had no authority to regulate trade between and among the states). Alexander Hamilton wrote the Convention’s final report and sent it to Congress. It explained that the delegates decided not to proceed on the business of their mission on account of such a deficient representation, but believed that there was an even more compelling reason to hold another convention. The delegates noted that the Articles possessed “important defects” and lacked enough power to be effective, and if the problems were not addressed, the perceived benefits of the confederation would be unfulfilled. As conveyed in the Report, the delegates to the Annapolis Convention decided that another conference, “with more enlarged powers” should be called and should meet in Philadelphia the following summer to “take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”
And so, the following year, May 1787, delegates from 12 of the 13 states (Rhode Island refused to send delegates), met in Philadelphia for the specific purpose of amending the Articles of Confederation. They ended up proposing a new form of government (thanks to the dubious scheming and planning by James Madison). The newly-drafted Constitution for the United States, a voluntary compact, was to be submitted to the States, and, if ratified by 9 of them, would go into effect as between the States so ratifying it. As it turned out, 11 states ratified and the Constitution became effective in 1788 (with Washington being chosen unanimously by the electoral college to be the first president and the first Congress meeting in March 1789). North Carolina finally joined the Union (ratified the Constitution) in 1789 after a Bill of Rights was proposed by James Madison in Congress and Rhode Island joined in 1790. The old union under the Articles was replaced by “a more perfect” union under the US Constitution.
The Union was made “more perfect” because the general government thus created, would be more effective to provide certain common services for all the states. Each state, in adopting the Constitution, contended, believed, and certainly articulated that the general government was one of specifically enumerated powers only and that they reserved the residuary of sovereign powers for themselves, as individual states.
So fearful and apprehensive were the states that the common government would usurp sovereign state powers and attempt to enlarge its powers that they took several steps:
1). They designed a bicameral legislative body that included a body that directly represented the States’ interests. Before the 17th Amendment was adopted, US Senators were selected by the state legislatures, including on a rotating basis if need be, specifically to provide a check on legislation that burdened states’ sovereign interests or exceeded constitutional authority. The intent was to include an express federal element to the government structure and to provide an additional and critical Check and Balance on government. The sovereign states would jealously guard their sphere of power directly, at the source.
2). Two of the delegates to the Constitutional Convention (James Madison and Alexander Hamilton) went on to write a series of essays to explain and clarify the language and provisions of the Constitution to assure the states assembled in their state ratifying conventions that the document is one that creates a “common” government of very specified delegated powers. These are the Federalist Papers, which to this day is the greatest authority on the meaning and spirit of the Constitution. The essays were explanations upon which the states relied in their decision to ratify, much the same way as parties to the purchase and sale of real property rely on contract terms and covenants when they agree to sign and be bound.
3). They conditioned their adoption of the Constitution on certain definitions and assumptions.
4). They demanded a Bill of Rights
5). They included “Resumptive Clauses”
6). The repeatedly referred to the Constitution as a “compact” between the states (the parties) to create a common government
7). They asserted their right of nullification and interposition (the refusal to acknowledge the legitimacy of a federal law passed by abuse any Constitutional power or as a result of usurping power from any State or the People themselves)
Alexander Hamilton wrote in Federalist No. 32: “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”
And James Madison wrote in Federalist No. 45:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.“
And again, Hamilton write in Federalist No. 78: “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
Even though such assurances were given, there were many who still did not trust that the Constitution could effectively check consolidation of power by the federal (common) government. Such voices were particularly loud in the state ratifying conventions. That is why several states either refused outright to ratify (such as North Carolina) or ratified only when promised that a Bill of Rights would be added. To emphasize exactly WHY the Bill of Rights was demanded by the states and why it was added, a preamble was included. The Preamble to the Bill of Rights reads: “Congress of the United States, in the City of New York, on March 4, 1789: The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added to extend public confidence in the Government to best ensure the beneficent ends of the institution.” In other words, the first ten (10) amendments were demanded by the States as a condition to joining together in a new Union in order to FURTHER LIMIT the scope of government (should they not understand the limits in Articles I – III) and to REMIND and RESTATE for the purpose of the federal government (all 3 branches) that the government is predicated on federalism – the notion of the states being sovereign and vested with all reserved powers not expressly delegated under Article I, Section 8 (nor prohibited to them under Section 9).
Aside from the Preamble to the Bill of Rights which again was specifically written to explain the reason and intention of the first ten amendments, several states inserted RESUMPTIVE CLAUSES into the adoption texts when they officially adopted the Constitution.
The RESUMPTIVE CLAUSES were intentionally inserted because of a distrust of the government that would be created under the Constitution. They were meant as express conditions on adoption and continued membership in a Union ruled by a common government. These states included New York, Virginia, and Rhode Island. (It is most likely that North Carolina would have included one as well but was given firm assurances that James Madison would draft and send a Bill of Rights to the States to include in the Constitution for their protection).
New York was the eleventh State to assent to the compact of union, and her ratification was particularly important because she was seen as a potential hold-out to the ratification of the Constitution. It was a state dominated by many influential anti-Federalists, including its governor. To make her ratification conditioned on the understanding that only specifically delegated powers were intended for the federal government and nothing more, her ratification text included a declaration of the principles on which her assent was given (ie, a “Resumptive Clause”), which the following language: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same…”
Rhode Island’s clause read: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.” And Virginia’s clause read: “Having fully and freely investigated and discussed the proceedings of the federal Convention, and being prepared to decide thereon, do in the name and in behalf of the People of Virginia, declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”
Reassumption (resumption) is the correlative of delegation.
At the time the Constitution was written and then submitted to the States for ratification, most of the Founders – and most notably, most Virginians and New Yorkers – saw the Constitution as a compact. Reference to this was made in several Federalist essays (No. 39, 43, 44, 49, for example), in many anti-Federalist essays (written to urge skepticism of the Constitution and which prompted the writing of the Federalist Papers), and in several of the state ratifying conventions. [Dave Brenner documents the compact nature of the Constitution in detail in his book, Compact of the Republic]. In fact, the term was commonly used for at least 100 years after. [See the various articles of secession by the southern states in 1861 and commentary explaining federalism and states’ rights].
James Madison wrote: “There is one view of the subject which ought to have its influence on those who espouse doctrines which strike at the authoritative origin and efficacious operation of the Government of the United States. The Government of the U.S. like all Governments free in their principles, rests on compact; a compact, not between the Government and the parties who formed and live under it; but among the parties themselves, and the strongest of Governments are those in which the compacts were most fairly formed and most faithfully executed.”
In his Report of 1800 to the Virginia House of Delegates, expounding on the Virginia Resolutions which addressed constitutional violations with the Alien and Sedition Acts of 1798), James Madison explained: “The resolution declares, first, that ‘it views the powers of the federal government as resulting from the compact to which the states are parties;’ in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties. Clear as the position must seem, that the federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine which opens another source of federal powers, not less extensive and important than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking that, in all the contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, “that 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.”
In 1798, in Supreme Court case Calder v. Bull, Justice Samuel Chase discussed the leading doctrines of American constitutional law with respect to states’ rights prior to the Civil War – the Doctrine of Vested Rights (the 10th Amendment) and the Doctrine of Police Powers. He wrote: “The people of the United States erected their constitutions to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect persons and property from violence. The purposes for which men enter into society will determine the nature and term of the social compact; and as they are the foundation of legislative power, they will decide the proper objects of it. The nature and ends of legislative power will limit the exercise of it…. There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power….. An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority. There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power….. An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority…”
In The Federalist Papers, James Madison addressed the question, ‘On what principle the confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?’ He answered: “By recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”
As explained, constitutions speak to the very foundation of law. They provide the authority for a governing body. Thomas Jefferson wrote: “Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it will be null and void.” And Chief Justice John Marshall explained: “All laws which are repugnant to the Constitution are null and void.” (Marbury v. Madison, 1803). Authority is not without limits, otherwise a written constitution would not be necessary. And so there are boundaries. For a government to take a step beyond such boundary would result in a nullity. Nullification is a doctrine that derives not only from the “compact theory” of the Union, but derives from the very nature of constitutions in general. Nullification essentially states that a law made without legitimate, delegated legal authority is null and void and is not enforceable (on a State or on the People). It is a remedy to prevent government overreach and abuse. As an effective remedy, of course, the offending law must be identified and then affirmative efforts must be made to prevent its enforcement. Nullification flows from the nature of the Constitution and as such it fundamental and foundational. It flows from the fact that the Constitution is a compact…. an agreement by parties (the States) to be bound in a union and thereby abiding by the responsibilities (burdens, including the burden of delegating some of its sovereign powers) while benefitting by its service.
As the leading authority on Nullification, Thomas Woods, explains: “The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist. The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people. Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose.”
Thomas Jefferson and James Madison were the Founders (are most influential, to be sure) who articulated Nullification most clearly.
In the Kentucky Resolutions of 1798, Jefferson wrote:
- Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
In the Kentucky Resolutions of 1799, he wrote:
RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy……
In the Virginia Resolutions of 1798, James Madison wrote:
RESOLVED……. That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
The point is that the Constitution created a common government of limited delegated powers. The delegation of sovereign powers had to come from somewhere, and because of the declaration of liberty proclaimed in our founding document, the Declaration of Independence, we know those powers came from the States, and the People themselves. Any delegation of sovereign individual rights is always temporary in nature and any delegation of state powers is temporary as well. Any assumption of powers not expressly delegated to government remains with the States and People, and every time any branch of government exceeds its delegated powers, it usurps them from the rightful depositories. The States and our Founders took every possible opportunity to ensure that the government would remain limited in size and scope. Their goal, their vision was to use the power of the states to limit the power of the federal government. It was the unique design feature that would ensure the greatest degree of freedom and bring to life the promises in the Declaration of Independence.
THESE are the principles upon which the general government was created. This was the common understanding of the states in forming the Union.
As predicted and despite the numerous warnings, by such esteemed intellects as Patrick Henry, Thomas Jefferson, and George Mason (to name a few), members of the federal government have attempted, and have almost always succeeded, in concentrating power in all three branches. They have weakened the status of the states at every turn. It began, unfortunately, when the very father of our nation, George Washington, supported the very proposition rejected at the Philadelphia Convention and in the ratifying conventions — that the Constitution is not only one of expressly enumerated powers but one of “implied” powers as well (thus enlarging at the time the federal taxing power). And then came the devastating decision by the Supreme Court in 1803 in Marbury v. Madison which proclaimed, without any provision in the Constitution as support, that its decisions on constitutional matters are binding upon the other branches of government, on the States, and on the People.
The monopoly that we see today by the federal government over the meaning and intent of the Constitution, as well as the scope of its powers, was clearly beginning to take shape in 1803.
The Civil War was an unfortunate time in our history. While the creation of the first National Bank (1791) and then the passing of the Alien and Sedition Acts (1798) posed the scenarios of what would happen if the federal government attempted to usurp or re-define its powers and what would happen if the government passed laws violative of the Constitution, the Civil War showed us what would happen if the government refused to respect its status under the Declaration of Independence and instead decided to seek its own self-preservation rather than protect the rights of the parties which created it as the agent. In other words, the Civil War presented the case of a rogue government. Yet, at the end of the Civil War, the Constitution essentially remained unchanged except for the addition of the Reconstruction era amendments – the 13th, 14th, and 15th amendments. The balance of power between the States and the federal government, as embodied in the Constitution, remained intact. It was only when the Supreme Court decided to re-interpret and twist and mold the 14th amendment that federalism was significantly eroded.
But then the coup de grace…. the passage of the 17th amendment.
The 17th amendment was added to the Constitution, making Senators elected and accountable only to the people. As we all know, because of the transient nature of habitation – the ability of people to move freely from state to state – as well as the overwhelming influence of immigration, the interests and concerns of the people are most often not the interests and concerns of the state as a sovereign unit. Now Senators cannot be removed for bad voting behavior for six years and have an incredible opportunity and incentive to become not only rogue representatives but to become agents of the government rather than agents of the people.
With the passage of the 17th amendment, the monopoly was firmly established.
And from that point on, the federal government has grown by leaps and bounds, mostly at the hands of a few cloaked individuals. The turn of the century (1900) saw the rise of the omnipotent and omniscient Supreme Court. For that, we have Chief Justice John Marshall to thank, with his decision in the landmark case of Marbury v. Madison, as mentioned above. Thomas Jefferson was president at the time and wrote to Abagail Adams to comment: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
Dave Brenner discusses the Marbury decision excellently in his book Compact of the Republic. Of course, the “compact” is the Constitution itself. In the book, Brenner writes: “John Marshall’s Supreme Court became the very representation of what the anti-Federalists feared the most – a judiciary that overstepped its own authority and ruled on state law. Through sweeping court decisions, the Marshall Court carved out the foundations for how the Supreme Court would be perceived more than 200 years later: as a powerful, decisive oligarchy that overturned state law and bound the states to its opinions.”
The book continues:
One of the last actions of the John Adams administration was to pass the Judiciary Act of 1801. This act would become known by Adams’ political opponents as the ‘midnight appointments’ because Adams literally worked feverishly to write and sign the commissions in the last days of his presidency. Adams hoped to methodically extend the power of the Federalists by appointing relatively large groups of (Federalist) civil officers that would serve for life. One of the commissions was written for William Marbury, an avowed Federalist who Adams wished to make Justice of the Peace for the District of Columbia.
The Senate confirmed the appointment of Marbury and many of the other judges. It remains clear that Jefferson, as the newly-inaugurated president, instructed James Madison, the new Secretary of State, not to deliver the remaining commissions to the ‘midnight judges.’ The Constitution did not require him to grant commissions to judges he did not appoint, and it was clear that he did not wish to extend the Federalist judiciary. After the incredibly contentious 1800 presidential election, Jefferson clearly viewed that contest as a referendum on Federalist rule….”
As a result, Marbury brought suit, seeking as his relief a writ of mandamus, an order by the court requiring Jefferson to deliver his commission and thereby allowing him to take his position.
Writing the decision, Chief Justice Marshall held that part of the Judiciary Act – the part that gave rise to Marbury’s commission – was unconstitutional, and therefore he was not entitled to the relief he sought. It would be the first time the US Supreme Court declared an act of Congress to be unconstitutional. The analysis should have ended right there. But Marshall went further. He wrote: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” The decision concluded by saying that “a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument.” It was the first time a federal court proclaimed judicial supremacy. It was the first time a federal court proclaimed that federal courts have the final say on what the Constitution means. In other words, this decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and once it has rendered its opinion, all the other branches, the States and the people are to bound by that decision. As the Supreme Court likes to remind everyone: “This principle has ever since been respected by this Court and the County as a permanent and indispensable feature of our constitutional system.” (Cooper v. Aaron, 1958)
Marbury’s declaration of judicial supremacy ignores the opinion in Vanhorne’s Lessee v. Dorance (1795). [See above].
It is interesting to note that the Supreme Court would not declare another act of Congress unconstitutional until 1957, when it struck down the Missouri Compromise in Dred Scott v. Sanford]. From that point until June of this year, 2016, the high court has only declared approximately 174 acts of the US Congress (whether in whole or in part) to be unconstitutional, which would amount to about 1 statute per year].
Up until this case, most Founding Fathers and many legal scholars understood that the role of the judiciary was to “render” or “offer” an opinion, to be considered by the other branches. Indeed, when ratifying the Constitution, the understanding was that the Supreme Court would not have a monopoly over its meaning and interpretation. Alexander Hamilton assured the state delegations in Federalist No. 78: “Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them…. “The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
In Federalist No. 49, Hamilton wrote: “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?”
Again, in Vanhorne’s Lessee v. Dorance, Justice Patterson emphasized: “It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”
Without authoritative language in Article III of the Constitution, it was believed that all three branches of the federal government would interpret the Constitution, and check usurpations of power by the other branches. Additionally, some believed that state courts would have the right to determine constitutionality as well. Article III, Section 1 reads: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” Section 2 lists the types of cases that the courts can hear, including the Supreme Court, and whether those cases have original or appellate jurisdiction).
Indeed, the Constitution does not speak to judicial supremacy, and no one claimed that the federal courts would have a monopoly on determining the constitutionality of all government action.
What the Constitution DOES speak to is Separation of Powers and Checks and Balances. The officials of two branches are elected by the People. If they are unpopular, the People can use their power at the ballot box. We can see where the Legislative and the Executive can check each other (although clearly, the Legislative branch was vested with the most power; Congress is the People’s house). But nothing makes sense about having a third branch, NOT elected by the people but appointed solely on political and social ideology for a term that doesn’t expire, that is supreme to the others. What makes sense is that a branch that is not accountable to the people was intended to be exactly what Alexander Hamilton said it would be — the least dangerous branch.
James Madison, the author himself of the Constitution, asked: “I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments.” Furthermore, he wrote: “Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the judicial authority.” Thomas Jefferson was of the same opinion. He wrote: “Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”
These great men recognized the threat to government balance should the view be otherwise. “As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper,” wrote Madison. Jefferson wrote: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
In 1820, after witnessing the ready willingness of men once infatuated with the simple language of Constitution and the limited nature of the government, to alter their positions once they sat in a position of power on the Supreme Court, Thomas Jefferson wrote: “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.”
More than any other branch of government, the US Supreme Court in particular has undermined and destroyed America’s onetime democratic republic. It has chiseled away and eroded the protections promised and pledged to each American by the Declaration of Independence and the boundaries of government established by the US Constitution adopted by the states in their ratification conventions during the years 1787- 1791. The justices to the Supreme Court are appointed by the President (approved by the Senate, and are rarely denied, except when they are “Borked”), and enjoy permanent tenure with a fixed income for life. They are selected according to ideology only, in the supreme attempt by a president to determine “policy” from the bench. That is, they want the Court to interpret the Constitution in the most liberal manner possible (according to the “Living Document” approach, which means that the Constitution means whatever they decide it means) or according to the letter and spirit under which it was adopted. It matters not to those who wish a very liberal reading of the Constitution that there is a legitimate way to alter its meaning and interpretation – and that is according to Article V – the “amendment process.”
Speaking about the “human” nature of justices which can cloud their decisions, one often hears someone comment that President Obama “must have something very damaging on Chief Justice John Roberts” to explain why he would have written two very constitutionally tortuous decisions on the healthcare bill in order to save it for the federal government. Judge Andrew Napolitano opined publically that Roberts used tyrannical power to find ways to save Obamacare. He said the Court “violated every grant of authority and ignored every historical and reliable treatise on the role and limitations of the Court as a branch of government, including those written by the very men who wrote and ratified the Constitution.” The justices that look to the actual (intended) meaning and spirit of the Constitution (the “strict-constructionists) wrote dissenting opinions and essentially agree with Judge Napolitano. Justice Scalia offered the most scathing dissent and in fact ended by simply saying “I dissent” rather than the usual “I respectfully dissent.” Scalia accused the majority of disregarding the plain meaning of words and re-defining terms and called the decision “pure applesauce.” He accused his colleagues of doing “somersaults of statutory interpretation” and wrote: “Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.” When he wrote “We should start calling this law SCOTUScare,” he was sarcastically hinting that the statute owes its existence more to the Supreme Court than to Congress.
A few weeks ago (June 26, 2015), in Obergefell v. Hodges, the Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and therefore protected under the Due Process and Equal Protection Clauses of the 14th Amendment, and accordingly couples of the same-sex may not be deprived of that right and that liberty. Journalist Frank Turek explained why the decision rests on a fatal flaw. Back in March, he penned an article (in anticipation of the case) and wrote: “The Supreme Court is about to decide if the 14th amendment to the United States Constitution requires the states to redefine marriage to include same sex relationships. There are several reasons why the answer is no. The most decisive of these reasons is the fact that when the 14th amendment was passed in 1868, homosexual behavior was a felony in every state in the union … If the people of the United States have ‘evolved’ on the issue, then the Constitution provides them with a very clear and fair way for the document to intelligently ‘evolve’…. They need to convince a supermajority of federal and state legislatures to amend the Constitution. That’s the very reason our Constitution has an amendment process! If we fail to use the amendment process and permit judges to substitute their own definitions and judgments for what the people actually meant when they passed the law in the first place, then we no longer govern ourselves. Why vote or use the political process if unelected justices strike down our laws and impose their own as they go? … It’s a pretext that allows judges to invent rights and impose any moral (or immoral) position they want against the will of the people.” Liberty interests are those enshrined in the Bill of Rights. The Bill of Rights were included in the Constitution to make sure that the federal government (only) would never violate them. The ‘incorporation doctrine’ is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the 14th amendment’s Due Process clause. But the Supreme Court, even up until the 1960s, has held that not all the interests outlined in the Bill of Rights are to be incorporated. The only sections of the Bill of Rights that federal courts should apply against state action, according to the Court, are those that have been “historically fundamental to our nation’s scheme of ordered liberty.” When a federal court reviews a case claiming an asserted right is one protected under “substantive due process” (due process involving “liberty interests”), the court usually looks first to see if there is a fundamental right by examining “if the right can be found deeply rooted in American history and traditions.” Because the incorporation test includes the clarifiers “historically” or “deeply rooted in American history and traditions,” in making its determination, the Court must look back to the era in our country’s history beginning from our founding up until the adoption of the 14th amendment – or it SHOULD. Just as not all proposed “new” constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states. Although the Supreme Court has stated in prior decisions (see Loving v. Virginia) that marriage is a fundamental right, the historical perspective is that marriage is between heterosexual couples. The idea of a “fundamental right to marry” invites controversy. The notion of a “fundamental right” implies firm privileges which the state cannot deny, define, or disrespect unless it finds that the challenged law was passed to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest (ie, the “strict scrutiny” test). But marriage rules (who can marry, health records required, what formalities are required for marriage, the legal ramifications of marriage, etc) in the United States have always been subject to almost complete state control (pursuant to its traditional police powers). As the dissent points out: “Removing racial barriers to marriage (Loving v. Virginia) did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases ‘presumed a relationship involving opposite-sex partners.’ In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage, as traditionally defined, violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. What petitioners seek is not the protection of a deeply-rooted right but the recognition of a very new right.” Re-definition of marriage is something society decides as a whole, through the legislature. It is not the role of a court. “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’” Another dissenting opinion states: “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
On June 26, the day the ruling was released, Texas Governor Greg Abbott issued a scathing criticism: “The Supreme Court has abandoned its role as an impartial judicial arbiter and has become an unelected nine-member legislature. Five Justices on the Supreme Court have imposed on the entire country their personal views on an issue that the Constitution and the Court’s previous decisions reserve to the people of the States.”
Thomas Paine wrote: “A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.” The Supreme Court, while improperly assuming the power to decide what powers the states have and what they don’t have and thereby shuffling power from the states to the federal government, has ushered in an era of a technically illegal government.
With respect to the federal judiciary, Thomas Jefferson wrote: “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
Furthermore, he wrote: “The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” (in a letter to Spencer Roane, 1819)
Similarly, he wrote: “The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. The opinions are often delivered by a majority of one, by a crafty Chief Judge who sophisticates the law to his mind by the turn of his own reasoning.” (in a letter to Thomas Ritchie, December 1820)
And again, he commented: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.” (in a letter to Charles Hammond, August 18, 1821)
Joseph Story, in his Commentaries on the Constitution (1833), wrote: “The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defense of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.”
US Rep. Joseph Nicholson (1770-1817) warned: “By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for and they will require nothing more, for your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass. If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance.”
If the federal government acts outside the scope of its delegated and carefully enumerated powers, and has sanction by the Supreme Court, then it’s no better than an armed mob. While a mob has the power of organized civil unrest and perhaps violence to coerce and strip others of rights and liberty, the government assumes a power of law to coerce and deprive.
By design, the separation of functions into separate branches (Separation of powers) and the system of checks and balances that our Founding Fathers provided has always been intended to act as a safeguard against the federal government’s potential tyranny and oppression. The history of the Supreme Court shows how, almost immediately, it began to enlarge certain clauses in the Constitution – the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause. Patrick Henry called these “sweeping clauses” because he felt they might ultimately be used by the federal government to sweep authority away from the states. And he was right. Not only has the Court interpreted the clauses as positive grants of power to Congress but it has also interpreted them as limitations on the States to regulate internally, for their own interests and for their citizens. The Commerce Clause, for example, has been interpreted broadly to give the government extreme powers to regulate commerce, both interstate and intrastate. It has also been interpreted to prevent states from regulating commerce within their borders and also to prevent individual farmers, for example, from growing too much wheat on his property for fear that he may consume that which he grows and thus not engage in commerce (thus affecting commerce!) The General Welfare clause has become an independent grant of power to Congress rather than as a statement of purpose qualifying the power to tax.
On July 9, 1868, during the Reconstruction era – the era when the US Congress radically transformed the southern states – the 14th amendment was added to the Constitution. As the nation entered the 20th century, not only did the Supreme Court have the “sweeping” or “elastic” clauses, but all of a sudden, it had this brand new tool in its arsenal to sap power from the States. Beginning in 1925, it began to incorporate the Bill of Rights as prohibitions against the States, through the Due Process clause of the 14th amendment. In this first case, Gitlow v. New York, the 1st amendment’s Guarantee of Free Speech was applied to the states. Through the “Incorporation Doctrine,” the Court has held if the federal government cannot burden the rights recognized in those amendments, the states may not either. And so the trend continued, particularly in the second half of the 20th century and now into the 21st century. By turning again and again to the 14th amendment, the Supreme Court has overturned state laws restricting the rights of speakers (and most recently, allowed states to censor speech), has struck down state laws permitting prayer in public schools, has forced states to remove Christian symbols from public property and forced them to censor prayer before state and local meetings, has forced them dismiss gender identify in marriage laws and required them to redefine marriage, has forced them to forcibly integrate schools and now to forcibly integrate neighborhoods, and has overturned state laws restricting the rights of criminal defendants, private property owners, gun owners, members of racial and ethnic minorities, and others. In short, the Supreme Court has used its unchecked power at the bench to use whatever authority or non-authority it wishes in order to neuter the states, recreate the United States as a boundary-less, one-size-fits-all nation, cookie-cutter type nation, and usher in sweeping social change. Typically today, as we have seen year after year, cases that pit the rights of states against the power of the federal government are usually decided by a closely-divided Supreme Court, with Justice Anthony Kennedy acting as the swing voter. It’s hard to imagine that a mere difference in opinion, represented by a 5-4 majority, can abolish traditional norms and dismantle historic institutions, and thus change the entire social landscape of a nation.
At one point, the clear meaning of the Bill of Rights was recognized, as stated in its Preamble: “The Conventions of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, in order to extend the ground of public confidence in the Government and will best ensure the beneficent ends of its institution.” The Bill of Rights was clearly intended as a set of limitations on the powers of the federal government.
This point was emphasized by the Marshall Court in 1822. In the case Barron v. Baltimore, a profitable businessman suffered losses due to the buildup of sand in the Baltimore Harbor and particularly in the area of his wharf, denying him the deep waters he needed. He then sued the city for the losses caused by the sand-build up. In the decision, Chief Justice Marshall found that the limitations on government articulated in the 5th amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the 5th amendment was not applicable to the states. The decision read:
“Had the framers of the Bill of Rights intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protections from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”
The Bill of Rights was NEVER intended to be applicable to the States. If that was even a consideration at the time that the States were debating whether to adopt the Constitution, they never would have done so.
Despite the efforts by the Supreme Court to twist constitutional jurisprudence, the 14th amendment was not intended to make the Bill of Rights applicable to the states. It was an amendment passed in 1868 in somewhat conjunction with the 13th amendment in order to make sure that the civil rights of the newly-freed blacks would not be infringed. Under the original Constitution, citizens of the United States were required to be first a citizen of some State, which is something that blacks could not claim (thanks to the Dred Scott decision). This is why it was imperative for the first section to begin with a definition of citizenship so that no State could refuse recognition of newly freed slaves as U.S. citizens and thereby leaving them with less protection and remedies under State laws of justice compared with a white citizen. The goal and function of the 14th amendment’s first section was to give legal validity to the Civil Rights Bill of 1866. The goal of both the Civil Rights Act and then the amendment was to put an end to criminal black codes established under former rebel States that at the time were being administered under policies of President Andrew Johnson. The author of the language of the 14th amendment, Rep. John Bingham of Ohio admitted that he borrowed the language for both the Due Process and Equal Protection clauses from Chapters 39 and 40 of the Magna Charta. He further explained:
(a) That the privileges and immunities of citizens of the United States refer only to those privileges and immunities embraced in the original text of the Constitution, Article IV, Section II. [See House Report No. 22, authored by Rep. Bingham on January 30, 1871]
(b) That “citizens of the United States, and citizens of the States, as employed under the 14th amendment, did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution.”
As Alan Mendenhall writes that any debate over the 14th amendment must address the validity of its enactment. “During Reconstruction, ratification of the amendment became a precondition for the re-admittance of former Confederate states into the Union. [This has been termed] ‘ratification at the point of the bayonet’” because in order to end the military rule imposed by the victorious North during Reconstruction and in order to be allowed to have representatives in Congress, the southern states were required to ratify the 14th amendment. “The conditional nature of this reunification belies the claim that the Fourteenth Amendment was ratified by any mutual compact of the states.” For this reason, and for many others that are legally, ideologically, and constitutionally sound, it should be emphasized that many learned constitutional scholars are convinced that the 14th amendment was never constitutionally – legitimately – adopted.
Just a few years after the (questionable) adoption of the 14th amendment, in 1873, the Supreme Court heard its first case addressing it, The Slaughterhouse Cases. The cases were a consolidation of three suits challenging a Louisiana law that established the Crescent City Live-Stock Landing and Slaughtering Company and required that all butchering of animals in New Orleans be done in its facilities. The Louisiana law was enacted for health concerns; it wanted to control animal blood that was seeping into the water system. The law seriously interfered with the businesses of individual butchers who were accustomed to slaughtering animals on their own property. It not only required them to do their butchering away from the city at the facilities of the Crescent City Livestock Company, but also to pay a fee for doing so. The law essentially created a monopoly. Justice Samuel F. Miller, joined by four other justices, held that the 14th amendment protected the privileges and immunities of national and NOT of state citizenship. The case involved state regulations of slaughterhouses to address the health emergencies resulting from animal blood that was seeping into the water supply. In the opinion, Justice Miller wrote that the 14th amendment was designed to address racial discrimination against former slaves rather than the regulation of butchers:
“The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution . . . . But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled. To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed. That its main purpose was to establish the citizenship of the negro can admit of no doubt.
The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clear recognized and established. We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs. . . speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.
Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.
We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.
The war (the Civil War) being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive [the Emancipation Proclamation], both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored union as one of its fundamental articles.’
In other words, Justice Miller’s point is that the meaning and purpose of the 14th amendment is to negate the Dred Scott decision, legally establish citizenship rights to freed slaves and to ensure the privileges and immunities of national citizenship (as provided in Article IV, Section 2 of the US Constitution]. For example, as Miller explains, “the 15th amendment declares that ‘the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.’ The negro having, by the 14th amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.” The 14th amendment does nothing to alter the relationship between the federal government and state governments, nor does it remove any sovereign state power that existed prior to the amendment.
Clearly, Justice Miller did not believe the federal government was entitled under the Constitution to interfere with authority that had always been conceded to state and local governments.
To be clear that the amendment did not include or intend the “incorporation doctrine,” another proposed amendment during the same era can confirm this. In December 1875, Senator James Blaine of Maine (rhymes) proposed a joint resolution that would “incorporate” the 1st amendment’s guarantee of religious freedom as a limitation on the States. It read: “
“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”
The amendment would become known as the Blaine Amendment. The effect was to prohibit the use of any public funds (federal or state) for any religious school. The bill passed the House but failed in the Senate. This amendment is significant (but ignored by the Supreme Court) because of this implication: If the 14th amendment was already understood to apply the Bill of Rights against the States, then why would such an amendment even need to be proposed. Furthermore, it was struck down by the Senate, particularly because it was seen as an improper effort to keep schools free from religion and also because it was seen as targeted religious persecution. The mid-1800s saw a great influx of Catholics into the country. They soon began establishing their own schools, where Catholic children could recite their own prayers and read from their own version of the Bible. The creation of these schools made many Protestants worry about whether the government would start funding Catholic schools and so the Blaine Amendment arose from this concern about the “Catholicization” of American education.
As explained above, prior to the 1890s, the Bill of Rights was held only to apply to the federal government, which was a principle solidified even further by the Supreme Court’s decision in 1922 in the case Prudential Insurance Company of America v. Cheek. The case concerned the state of New York’s ability to restrict freedom of speech. The decision read: “As we have stated, neither the 14th amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”
In 1930, in the case Baldwin v. Missouri, the Supreme Court found that an inheritance tax imposed on intangible property (bonds and promissory notes) to property in Missouri held by a dying woman in Illinois violated the due process clause of the 14th amendment. Justice Oliver Wendell Holmes, a realist, was becoming worried that the Supreme Court was overstepping its boundaries with respect to the 14th amendment and scolded his fellow bench members in what would be one of his last dissents:
“I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the 14th amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the 14th amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the States may pass.”
Originalists (those who interpret the Constitution according to the original meaning and intent) and non-originalists alike have been skeptical over the years of the Court’s 14th Amendment substantive due process jurisprudence. 2 of the 3 current “originalist” members of the Supreme Court, Justice Antonin Scalia and Justice Clarence Thomas, reject the substantive due process doctrine, and Supreme Court Justice Antonin Scalia has called it a “judicial usurpation” and an “oxymoron.” [See Chicago v. Morales, 1999 and U.S. v. Carlton, 1994] Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As he made obvious in his dissents in Moore v. East Cleveland and in Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick (the first Supreme Court sodomy case), he argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to “repeat the process at will.” He further wrote that guaranteeing a right to sodomy would be the product of “judge-made constitutional law” and would send the Court down the road of illegitimacy. While originalists generally do not support substantive due process rights, they do not necessarily oppose protection of the rights. Rather, they believe in the paths that have been traditionally, and constitutionally, provided – through legislation and through the amendment process.
Yet despite the legislative history surrounding the amendment and established jurisprudence regarding the limited reach of the “Privileges and Immunities Clause” in the Slaughterhouse Cases, the Supreme Court would later turn to the Due Process and the Equal Protection clauses to strike down state laws. As mentioned earlier, incorporation of the Bill of Rights into state law began with the case Gitlow v. New York (1925), in which the Supreme Court upheld that states must respect freedom of speech. By the last half of the 20th century, nearly all of the first 8 amendments were found to be incorporated into state law through the 14th amendment. (All except the 3rd amendment, and certain parts of the 5th, 7th, and 8th). The 9th and 10th amendments apply expressly to the federal government, and so have not been incorporated. Despite its narrowly-intentioned purpose, the 14th amendment is cited in US litigation more than any other amendment.
The use of the 14th amendment as a sword against the States has blurred state boundaries and has all but reduced the state governments to looking after its day-to-day responsibilities. In most cases, the governments have become enforcement arms of the federal government. What the government can’t do legislatively, judicially, or through executive action, it can accomplish through federal grants and funding (“money with strings”).
Again, the federal government is supposed to legislate only pursuant to the express powers delegated in the Constitution and for the express objects listed in Article I, Section 8. The 10th amendment emphatically states that all remaining (reserved) sovereign powers remain with each State. The definition of a “sovereign” includes the understanding that it has a fundamental, unquestioned right to make all necessary laws for those in its jurisdiction, as well as for its self-preservation and self-defense. Our government system is based on the notion of Dual Sovereignty. That is enshrined in the 10th amendment. The federal government is sovereign when it comes to those objects that the States delegated to it under the Constitution and the states are sovereign when it comes to everything else. In other words, when it comes to legislation and policy, the States have broad power within their individual spheres. Nothing written or originally intentioned in the Constitution (before the Court was given the chance to change things, through interpretation and judicial construction) has changed that balance. And that is why the federal government has no “Police Powers.” Only the states have police powers. What are “police powers”? In the United States, a state’s police power comes from the 10th Amendment, which gives states the rights and powers “not delegated to the United States.” States are thus granted the power to establish and enforce laws protecting the welfare, safety, health, and morality of its people. The Supreme Court, at least until the turn of the 20th century (1905), has consistently held that the police power of a state embraces any law for such purposes that a state believes are necessary to protect and benefit its people, as long as such law does not infringe on any power delegated to the general government in the Constitution. Morality is outside the jurisdiction of the Supreme Court because then the decision rests on the morality of the justices. Welfare is a state issue, unless it is an issue that touches on “all Americans, in general.” The Supreme Court must stick to an opinion based on the interpretation of the Constitution.
In 1932, Justice Brandeis, in the case New State Ice Co. v. Liebermann wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” (dissenting opinion). The term “states as laboratories of experimentation” is, of course, a not only a reference to federalism but a statement of one of its greatest benefits – innovation and solutions. The case concerned the constitutionality of an Oklahoma statute forbidding the manufacture and distribution of ice without a license. Under the challenged statute, the state was authorized to issue such a license only upon a showing “of the necessity for a supply of ice at the place where it is sought to establish the business.” The plaintiff was denied a license because it was deemed that there was a sufficient supply. A six-Justice majority invalidated the statute under the Due Process Clause of the 14th amendment as an unwarranted interference with the right to engage in private business in a lawful occupation. In his dissent, Justice Brandeis laid out some of his growing frustrations with the Court’s substantive due process jurisprudence. The full comment reads: “There must be power in the States and the Nation to re-mould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the 14th amendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity. To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
In 1982, in the case Southcenter Joint Venture v. National Democratic Policy Committee, Justice Utter wrote: “Federalism allows the states to operate as laboratories for more workable solutions to legal and constitutional problems.” In that case, the Washington Supreme Court held that the Washington Constitution’s protection of free speech does not extend to privately owned shopping malls, thus not adopting the Supreme Court’s jurisprudence as relating the Free Speech from the federal perspective. Justice Utter criticizes the majority for borrowing heavily from federal precedents, contending that the Washington courts need not follow the Supreme Court’s lead.
In 1995, in United States v. Lopez, the Supreme Court struck down a federal law that criminalized the possession of a gun within 1000 feet of a school. At the end of his concurrence, Justice Anthony Kennedy professed respect for areas of traditional state concern and the role of the states as “laboratories of democracy”:
“While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.
The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term. Justice Kennedy, in his concurrence, argued that the Commerce Clause should be read to allocate to the states exclusively the power to regulate gun use in school zones. This result, he wrote, is dictated by federalism, under which “the States may perform their role as laboratories for experimentation.”
In another case before the Supreme Court that same year, U.S. Term Limits, Inc. v. Thorton, Justice Kennedy described federalism as the Framers’ attempt to “split the atom of sovereignty.” The case involved the (constitutional) qualifications for congressional office and the time, place, and manner of elections.
There are some state officials who urge their state legislatures to acknowledge their sovereign status and to look more to their own constitutions rather than to US Constitution. For example, Justice Bablitch of the Wisconsin Supreme Court wrote in 1991: “The Wisconsin Constitution is not and has never been intended to be a potted plant. It can serve, if this court chooses to give it life, as a bedrock of fundamental protections for all Wisconsin citizens…. Even the U.S. Supreme Court has recognized, if not encouraged, the use of state constitutions for just such a purpose. It is consistent with our deeply held notions of federalism, our notions that states should be encouraged to be the laboratories of the nation.. .. We may, in many if not most cases, reject an alternative interpretation [ie, construe the state constitution differently from the federal]. But we should at least look.”
To the Supreme Court justice, the historical record is of little importance or concern. To be sure, the historical record hardly, if ever, mattered in their deliberations. Rarely are the original debates and writings of the ratification conventions cited. They have only been cited 122 times total in the over 30,000 cases they’ve ruled upon in the 225 years the high court has been deciding cases. They were only cited 30 times in the first 100 years of the Court’s existence – in the formative years. Sadly, they haven’t been consulted as the authority on the meaning and intent of the Constitution as they clearly are. In fact, when the Supreme Court goes so far to side with Alexander Hamilton, an outlier at the Constitutional Convention (who wanted a monarchy), an outright enemy of the Constitution (wanted a consolidated government of unlimited powers), an ideological enemy of the very men who wrote the Constitution (went up against them during George Washington’s term with respect to the taxing power and the elastic clauses), and contradicted in words and actions the very assurances he wrote in the Federalist Papers, knowing that the Union would be predicted on those assurances, as opposed to James Madison, Thomas Jefferson, other Founders, and the leaders in the state conventions, there can be no other explanation than that the Court will do whatever it takes to seek the ends it desires. If the original Convention (Philadelphia, 1787) and ratification debates were cited, they would have “served to refute every conflicting claim regarding the elastic clauses,” as Dave Brenner wrote, and would have served to refuse every illegitimate power grab they sanctioned.
With almost every decision, and certainly with decisions handed down during the Obama administration, the Supreme Court’s mantra has been: “WHERE THERE IS A WILL, THERE IS A WAY.” It has shown that it will go through incredible lengths and legal acrobatics to save a federal law. It will distort the Constitution in ways the American people – including the intelligent ones – would never imagine. Yet it will never do the same for the states. While enlarging every possible delegation of power for the government, it has never once enlarged the states’ domain under the 10th amendment. While reading every clause and every delegation in the broadest sense possible for the government, it has never once done so for the states. And therefore, the delegate balance of power has shifted further and further towards Washington DC – a body of lawmakers and politicians who sit far away from, and secluded from, the communities where citizens live.
The shift is so striking and alarming that citizens are urging their state legislatures to assert state sovereignty and state representatives are submitting such bills and resolutions. These measures assert state sovereignty under the 10th amendment, re-assert their position that the government is one of delegated powers only, and emphasize that powers not delegated are reserved to the state. Some of the measures go farther and announce that if the federal government continues to usurp powers, those efforts will be met with nullification and interposition. Some states have already enacted various nullification bills. Indeed, nullification has never been such a popular topic. By mid-2009, ten states had already introduced bills and resolutions declaring and reaffirming their sovereignty, and another 14-15 states were considering it. New Hampshire’s resolution (HCR 6) included a rather interesting and long dissertation and culminated in the statement “That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. (The resolution was not passed by the state house, as it was deemed to be not judicious to do so). Montana’s bill was very similar and it almost passed.
The shift is also so striking and so alarming that Americans are finally beginning to imagine how the colonists felt under British rule and why they would urge for separation from the mother country. In some states, talk of secession is a regular part of talk radio (Vermont, for example), and has been for the past several years. In 2012, after a New Orleans resident petitioned the White House to allow Louisiana to secede from the United States, 69 separate petitions, spanning all 50 states, were filed with the White House (the “We the People” online petition system). The site was launched on November 7, 2011, the day after Obama was elected for his second term. President Obama had promised to respond to each petition that collected at least 25,000. As of the deadline for the petitions, 47 states easily reached the threshold and some collected significantly more. Texas, for example, collected over 100,000 signatures. Most petitions made an excellent case for secession and separation from the federal government. States like New York explained that it would be far better off, economically especially, if it broke legal ties.
President Obama indeed responded. Essentially the answer was NO…. A state has no right to secede. It is stuck with the federal government, whether it likes it or not. This is the response the White House issued on January 11, 2013:
“Our founding fathers established the Constitution of the United States “in order to form a more perfect union” through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot — a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it. As President Abraham Lincoln explained in his first inaugural address in 1861, ‘in contemplation of universal law and of the Constitution the Union of these States is perpetual.’ In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States. And shortly after the Civil War ended, the Supreme Court confirmed that ‘the Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.’
Although the founders established a perpetual union, they also provided for a government that is, as President Lincoln would later describe it, ‘of the people, by the people, and for the people’ — all of the people. Participation in, and engagement with, government is the cornerstone of our democracy. And because every American who wants to participate deserves a government that is accessible and responsive, the Obama Administration has created a host of new tools and channels to connect concerned citizens with White House. In fact, one of the most exciting aspects of the We the People platform is a chance to engage directly with our most outspoken critics.”
Essentially, the site, the initiative by the government was a ruse; a mere “feel-good” initiative. It gave the people the illusion that they flex their muscles and their voice and have their frustrations heard and internalized. As Commodus’ sister Lucilla told her conniving brother in the movie GLADIATOR: “Give the people their illusions.” As we watched the freight train that is the Obama administration forge full speed ahead with his plans, we sadly note that the voices of frustration never gave our president a moment’s pause.
The people used to believe in our system of checks and balances – especially the courts – to reign in the violent swings in government from side to side (extreme left and extreme right) and restore a tolerable balance in government. The people used to believe they had a voice in their government through the ballot box. But being constrained by an aggressive two-party system where neither party offers voters any hope of reigning in the tentacles of government or divesting it of the objects of its spending. What fringe groups fail to achieve at the ballot box, they can achieve through the activism of progressive courts. Judges no longer uphold or strike down legislation, based on their legitimacy; for quite some time now, they’ve also been in the business of legislating from the bench. For the most part, federal courts have become the enemy of the people. Representatives run for congressional office, and even for president, on a platform of promises, pretending that their allegiance is with their people. And then when they take their oath and assume their office, their allegiance changes. They clearly become agents for the federal government, putting its goals above those of their constituency. Political leaders move along ideological line, even within the same party, making sure that grassroots voices and other voices of frustration can never translate into political weight. Mark Levin commented once that political leaders act like Josef Stalin, cleaning out all opposition in the Kremlin. Power corrupts. There is a reason that Americans have never viewed the federal government with more distrust. Since the passage of the Affordable Care Act, only about 22% of Americans feel they can trust their government. That percentage is less for Congress alone. Less than a quarter of Americans believe that their representatives take their concerns to heart. Less than that believe they can change the course their government is on. [See Pew Research].
When you have a candidate who runs not on economic promises but on a promise “to protect your phone” (that is, to protect your right not to have the government collect your messages), then you know that all is certainly not well in the United States. When people are fighting an ideological war with their government leaders over its right to censor your speech, to tell you that you can’t display a flag, to force you to violate your sacred rights of conscience, to control your healthcare decisions, to force you to purchase its insurance policies, to put you on a Homeland Security Department watch list simply because you adhere to traditional notions of government and society, to outfit the IRS with 16,000 new goons to investigate you to enforce Obamacare alone, to question your right to own and possess a gun for your safety, and to force you to live in a one-size-fits-all, borderless society that defies laws of science and human nature, then you know your government has become hostile to the reasons it was created in the first place.
Frustration with the federal monopoly is growing. Limits need to be restored and reliable Checks and balances need to be put into place. Otherwise, our sunset years will be spent reminiscing about what it was once like to live in the greatest, freest country on Earth.
Right now, we have to ask: Who watches the watchers? The Supreme Court is untouchable. Its decisions are final; unreviewable. They stand as precedent (stare decisis) for as long as the justices themselves, and themselves alone, decide. The Court’s nine justices decide the fate of both federal and state law, but of course, as it is a branch of the federal government, sitting in Washington DC, immersed in its politics and in closer contact with DC officials than state players, it is impossible to see how it can be an impartial tribunal. The federal government will never divest itself of its powers, even though most of them are misappropriated, stolen from the States and the People.
As explained earlier, the three branches of government have worked to support one another rather than check one another. The US Constitution was written in plain and simple language so that every American could understand it and understand the boundaries of government on his or her life. People know when their government – this government – has transgressed limits and has overstepped its authority. When ordinary people can figure it out and then watch as the branches do what they do to allow the conduct to go forward and affect their lives, they have no confidence in their government structure. They don’t believe there are reliable procedures in place to arrest the growing evil and tyranny that we all understand government has displayed. Liberty, which is defined as the extent to which people can exercise their freedoms, is secure when there are such procedures in place and government can be contained. The transformation of government from that of limited powers to one of vast concentrated powers by its decisions has undermined the liberty interests of the People. The most important and powerful check on the abuse of government, as discussed above, is the separation of government powers among two sovereigns; dual sovereignty. The 10th Amendment reminds us of the balance of power: “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.” By pitting the two sovereigns against one another, the balance is maintained. Each one jealously guards and protects its sphere of power. The only problem is that one sovereign has a monopoly over the determination of its sphere. The federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself. And as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions. The other sovereign, the States, have no chair at the table. And the only way our system can work — that is, work to protect the rights of the people rather than promote its own interests and longevity – is if the states get that chair at the table.
“If it be conceded that the sovereign powers delegated are divided between the General and State Governments, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself…. The existence of the right of judging of their powers, so clearly established from the sovereignty of States, as clearly implies a veto or control, within its limits, on the action of the General Government, on contested points of authority . . . . to arrest the encroachment.” [John C. Calhoun, South Carolina Expositionand Protest, 1828]
In light of this mandate, and in light of the fact that it has been the Supreme Court, as the self-appointed final tribunal to decide on constitutional matters which has done the most harm to the precarious balance built into our government structure, the following amendment should be proposed and passed in order to effect meaningful change to the federal judiciary and to our government structure in general. In short, the amendment proposes to alter the manner in which justices are appointed to the Supreme Court. With the proposal, justices will no longer be appointed by the President but instead will be appointed by each state. Rather than 9 justices, the membership of the Court will increase to 50, thereby giving the tribunal more credibility. The common – or federal – government will finally have a representation of the states in, to ensure fairness and equal representation of sovereign interests.
It is a moral imperative that we should seek to restore the proper balance.
How fitting, and ironic it should be to end this proposal for a constitutional amendment with a line from Chief Justice Roberts in his infamous healthcare decision (NFIB v. Sibelius, 2012): “The States are separate and independent sovereigns. Sometimes they have to act like it.”
James Madison, Report on the Virginia Resolutions, Jan. 1800; Elliot 4:546–50, 579.
House of Delegates, Session of 1799–1800. (aka, Madison’s Report of 1800). Referenced at: http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html
Allen Mendenhall, “Is the Fourteenth Amendment Good,” Mises Daily, January 2, 2015. Referenced at: https://mises.org/library/fourteenth-amendment-good
P.A. Madison, “Historical Analysis of the Meaning of the 14th Amendment’s First Section,” Federalist Blog, last updated August 2, 2010. Referenced at: http://www.federalistblog.us/mt/articles/14th_dummy_guide.htm
Frank Turk, “Why the 14th Amendment Can’t Possibly Require Same-Sex Marriage,” Townhall, March 17, 2015. Referenced at: http://townhall.com/columnists/frankturek/2015/03/17/why-the-14th-amendment-cant-possibly-require-samesex-marriage-n1971423/page/full
Prudential Ins. Co. of America v. Cheek, 259 U.S. 530 (1922)
Barron v. Baltimore, 32 U.S. 243 (1833)
Marbury v. Madison, 5 U.S. 137 (1803)
Vanhorne’s Lessee v. Dorance, 2 U.S. 304, 308 (1795). Referenced at: https://supreme.justia.com/cases/federal/us/2/304/case.html
The Slaughter-House Cases, 83 U.S. 36 (1873) – The first US Supreme Court interpretation of the 14th amendment
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
Baldwin v. Missouri, 281 U.S. 586, 595 (1930)
Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash. 1989).
United States v. Lopez, 514 U.S. 549 (1995)
State v. Seibel, 471 N.W.2d 226 (Wis. 1991) (Bablitch, J., dissenting)
US Term Limits, Inc. v. Thornton, 514 US 779 (1995)
Calder v. Bull, 3 U.S. 386 (1798)
Cooper v. Aaron, 358 U.S. 1 (1958)
Chicago v. Morales, 527 U.S. 41 (1999)
U.S. v. Carlton, 512 U.S. 26 (1994)
Moore v. East Cleveland, 431 U.S. 494 (1977)
Roe v. Wade, 410 U.S. 113 (1973) [A woman has the fundamental right to have an abortion]
Bowers v. Hardwick, 478 U.S. 186 (1986) [A gay man has no fundamental right to engage in sodomy and states are allowed to enact laws to prohibit the conduct. The Court will protect rights not easily identifiable in the Constitution only when those rights are “implicit in the concept of ordered liberty”] Note: This case was overturned in Lawrence v. Texas, 2003, in which the Court said it had taken too narrow a view of substantive due process and liberty interests in the earlier case and now (that the strong voice in the Bowers case, Justice White, was no longer on the Court), the Court agreed that intimate consensual sexual conduct is a liberty interest protected by the substantive due process clause of the 14th Amendment].
Obergefell v. Hodges, June 26, 2015. (Gay Marriage decision of 2015). Referenced at: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
Dave Brenner, Compact of the Republic, Life and Liberty Publishing, Minneapolis, MN (2014).
The Kentucky and Virginia Resolutions, Bill of Rights Institute. Referenced at: http://billofrightsinstitute.org/founding-documents/primary-source-documents/virginia-and-kentucky-resolutions/
Edwin S. Corwin, “A Basic Doctrine of American Law,” Michigan Law Review, Feb. 1914; pp. 247-250. Referenced at: http://www.jstor.org/stable/1276027?seq=1#page_scan_tab_contents. [Addresses the case Calder v. Bull].
Jefferson Davis [The Abbebille Review, June 2014. http://www.abbevilleinstitute.org/review/the-doctrine-of-states-rights/
“Quotes from the Founding Fathers,” RenewAmerica, March 13, 2009. Referenced at: http://www.renewamerica.com/article/090313
James A. Gardner, “The “States-as-Laboratories” Metaphor in State Constitutional Law,” Valparaiso University Law Review, Vol. 30, No. 2. Referenced at: http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1888&context=vulr
James G. Wilson, “The Supreme Court’s Use of the Federalist Papers,” Cleveland State University, 1985. Referenced at: http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1265&context=fac_articles
The White House Online Petition System, “Our States Remain United. January 11, 2013. Referenced at: https://petitions.whitehouse.gov/response/our-states-remain-united
New Hampshire’s State Sovereignty Resolution (HCR 6 – “A Resolution Affirming States’ Rights Based on Jeffersonian Principles”) – http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html
John C. Calhoun, South Carolina Exposition and Protest (1828). Referenced at: http://www2.bakersfieldcollege.edu/kfreeland/H17a/activities/Ch11docs.pdf
Texas Governor Greg Abbott, press release (June 26, 2015). Referenced at: http://gov.texas.gov/news/press-release/21131
Thomas Paine, Rights of Man (1791-1792). Referenced at: http://www.let.rug.nl/usa/documents/1786-1800/thomas-paine-the-rights-of-man/
The Federalist Papers. Referenced at: http://avalon.law.yale.edu/subject_menus/fed.asp
* Federal mandates: Federal mandates include requirements imposed on state, local, or tribal governments or on entities in the private sector that are not conditions of aid or tied to participation in voluntary federal programs.]
We need to amend the Constitution so one Justice per state is appointed by the states legislators. The Justice appointed would not have a lifetime tenure and could be replaced if the state felt he or she was not representing the citizens of their state! This way every state would be represented in every decision made by the court.
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Diane, thanks for this wonderful piece of research and scholarly presentation. I totally endorse the idea and concept.
Diane Rufino, we already have term limits on the President, so why not have term limits for all other positions, including the U.S. Supreme Court? Would that not lead to a true system of checks and balances?