How did we get here? How did we end up with a government that spies on us, gives money and guns to our enemies and kills with impunity?
The current manifestation of despotic government on display by the Obama administration has rekindled the debate between federal power and state sovereignty. Who is truly the final arbiter of constitutionality when it comes to federal law? Is it our federal courts or is it our 50 sovereign and independent states?
If we look at the historical context of how our country was founded we can only draw one conclusion.
A Republic If We Can Keep It
The founders were unambiguous about the nature of the federal government and its limited, specifically delegated powers. The idea of a limited federal government is laced through the constitution and evidence can be found throughout.
For example article IV; section 4 of the constitution clearly states the desire to establish a republican form of government in the United States.
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
If you need further proof that our founders intended for federal powers to be few and limited, consider the meaning of the 9th amendment.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 9th amendment succinctly encapsulates Jefferson and Madison view that the constitution was solely meant to delineate what the federal government could and couldn’t do, and not a document to restrain the people.
Who Is The Final Arbiter?
That being said, what would Jefferson and Madison think about the use of courts in the determination of the constitutionality of a federal act? They would have considered the states the final arbiter in the determination of the constitutionality of a federal act because they considered any action beyond the scope of the constitution to be illegal. Here is Jefferson in his own words:
“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.” – Thomas Jefferson Kentucky Resolutions 1798
As you can see Jefferson thought that each party had a equal right to judge what was constitutional. This cannot be disputed.
In the Virginia Resolution of 1798, Madison also made it crystal clear that he believed that the states had the right and the power to determine the constitutionality of federal laws. An example of this belief can be found in the Virginia Resolution.
Madison states ” That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.” – James Madison Virginia Resolution 1798
Madison and Jefferson’s belief in the Tenth Amendment is ironclad. There is no other way to interpret it. 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. You can’t get clearer than that.
Ultimately both men believed in our republican form of government, and thought that free men were capable of governing themselves. A question that everyone should ponder is, why is the Tenth Amendment in the constitution if our founders didn’t believe in it?
It is there for a reason.
- How Did We Get Here? - July 7, 2014