Federal Judges Fail to Restrain Federal Power – Now What?

Two shocking rulings handed down by the Supreme Court recently – one, King V. Burwell, rewriting precise language in the Affordable Health Care Act, the other, Obergefell V. Hodges, assuming federal authority to define marriage, illuminate a central flaw in the American system of government – as it now exists. That flaw is the lack of a realistic institutional check on unconstitutional federal activities.

There was such a check prior to the adaptation of the 17th Amendment in 1913. Until then, US Senators were appointed by their respective state legislatures.They also held the power to recall their senators should they fail to act in the best interests of their State. The 17th Amendment, providing for popular election of senators, shifts the principal influence on senators from their State’s interests to big money special interests who fund senatorial campaigns.

Of course, repeal of the 17th wouldn’t remedy an activist Supreme Court – a court that interprets the Constitution according to the personal preferences of five justices. To suggest, as does Georgia Attorney General Sam Olens, that the remedy to federal overreach is the ballot box disregards the fact that it could take decades for “strict interpretation” judges to once again hold the majority on the Court. And it may never happen. In the meantime, unconstitutional entitlements become, as President Obama characterized Obamacare this week, inextricably “woven into the fabric of the nation.”

If the ballot box is not a realistic remedy, what is? Surely a nation founded on the principles espoused in the Declaration of Independence doesn’t just roll over and accept tyrannical rule from a central government simply because clever lawyers and powerful special interests managed to finagle their way into power and pervert the system.

Some maintain the way to corral government gone wild is through constitutional amendments that clarify the limits of federal authority. Since Congress shows no inclination to propose such amendments, the States can take the initiative when 2/3rds of them ask Congress to call a convention for the purpose of proposing amendments – which Congress is then obliged to do.

The Constitution is silent on the details of what happens next, including whether the States or Congress appoint the delegates, but either way the probabilities are proponents and beneficiaries of big government, i.e. members of Congress, state legislators and governors, will be far better represented at the convention than rank and file citizens seeking restoration of the founding principles. I suppose it is possible that a convention dominated by people highly invested in the status quo could propose amendments that would put tight restraints on their own powers, perks and prerogatives, but I wouldn’t bet my grandchildrens’ future on it. Even if they did propose amendments with greater clarity than “Congress shall pass no law” and “shall not be infringed,” what’s to say the Supreme Court won’t twist or ignore new proscriptions just as they do those in the 1st, 2nd, 4th, 5th, 6th, 9th, and 10th  amendments? When there is a believable answer to that question, I might just climb aboard the Article V train. But until then, color me skeptical.

That leaves State resistance. Virtually all the States have refused to comply with federal acts at one time or another – a form of resistance countenanced by SCOTUS on four separate occasions. The problem with noncompliance is its limited application.  It can only be effective when the States are needed to implement a federal act, (think prohibition and the Volstead Act) but noncompliance cannot work when State assistance is unnecessary in some cases. For example, suppose the federal government began blocking Internet content it finds offensive. In such an instance, there is no obvious State participation, so noncompliance is probably a non-factor. Similarly, should the federal government decide to allow foreign troops on US soil to enforce the UN Small Arms Treaty banning citizen possession of firearms, once again State noncompliance would be inapplicable. State resistance would require proactive opposition rather than passive noncompliance.

That brings us to interposition in its various forms. Madison, Jefferson, Hamilton and Henry were early proponents of the States’ “natural right and duty” to nullify unconstitutional federal acts. However, Madison and Jefferson appear to have differed on when states could nullify. Jefferson held they should take action against every act of undelegated power, while Madison felt states should only interpose in the case of “deliberate, palpable, and dangerous exercise of other powers.”

Keep in mind, Jefferson and Madison’s Kentucky and Virginia Resolutions were not State declarations of nullification. They were arguments circulated to the other States soliciting them to join in open resistance to the grossly unconstitutional Alien and Sedition Acts. While the Deep South States ignored the plea, most States north of the Mason Dixon openly rejected nullification, labeling it an act of disloyalty to the union. Ironically, nine years later most of those same northern States used the very language found in the Resolutions to justify flouting then President Jefferson’s trade embargo and later the federal call for conscription during the War of 1812.

The recent Supreme Court’s rulings in King V. Burwell and Obergefell V. Hodges remind us that as long as the High Court considers the Constitution a “living document” that can be twisted into any shape the justices please; there are no laws or constitutional amendments that can compel the federal government to live within their confines. Clearly, restoration of the rule of law requires a change in the people in Washington or a change of the people in Washington.

When George Washington learned that British Red Coats bayoneted prostrate wounded Americans at the Battle of Bunker Hill, he finally abandoned all thoughts of rapprochement with Britain and scolded all who were “still feeding upon the dainty food of reconciliation.” Well, the Court’s most recent display of contempt for the Constitution is a similar signal that we the people cannot look to government officials to voluntarily forego the powers they’ve usurped. It is time to stop looking to remedies under the control of the very people who aid in and benefit from the perversion of the Constitution. It is time for citizens to take actions that compel congress, the president and the courts to abide by the will of the people. That action must come through the reserved powers of the States,

Unfortunately, state governments are as corrupt as the federal government; so the restoration of the rule of law begins by demanding of those we put into State offices that they uphold their oath to support and defend the Constitution, and by demonstrating that we have the votes to remove them from office should they disregard it.