In Part One, I discussed the importance of “who decides” what is constitutional, and what is not.  Conventional wisdom says that the Supreme Court has long been recognized to have that power.  If you haven’t read part one, follow this link to read it here.

Now I will give my reasons for why that power does NOT reside solely with the Court created by the Constitution.

Let us begin with the preamble to the Bill Of Rights which begins;

“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”[Emphasis added]

This suggests that there was concern about a central government abusing its powers from a number of states.  In fact many people have heard of the “Federalist Papers” which were a series of essays written to sell the public on the idea of ratifying the constitution.  Many of the Articles were written to answer specific criticisms of the Constitution, such as those raised by Robert Yates and others dubiously named “Anti Federalists”.  Gary Galles from the Mises Institute wrote an article on the Anti-Federalist Papers where he writes;

The Antifederalists warned us that the cost Americans would bear in both liberty and resources for the government that would evolve under the Constitution would rise sharply. That is why their objections led to the Bill of Rights, to limit that tendency (though with far too little success that has survived to the present)…[Robert yates] argued that when constitutional grounds for making rulings were absent, the Court would create grounds “by their own decisions.” He thought that the power it would command would be so irresistible that the judiciary would use it to make law, manipulating the meanings of arguably vague clauses to justify it.

So when you read in the Federalist papers about the limitations of the constitution, it should be remembered that they were responding to critics like Yates.  This is why those of us who argue for ‘Original Intent’ or ‘intent of the makers’ will point to the Federalist Papers or ratification debates as evidence that we created a “limited government” with the Constitution.  So when Madison assured us of a double security for our liberties in Federalist papers #51;

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Madison clearly answers the problem Robert Yates tried to warn people in #51, and there are other examples where Madison and Hamilton are even more specific.  I have listed a few here;

  • “It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” Alexander Hamilton Federalist Papers #28
  • “The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” James Madison Federalist Papers # 39
  • “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.” James Madison Federalist Papers #45
  •  “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.” Alexander Hamilton Federalist Papers #85

So when we read in the Preamble to the Bill of Rights “in order to prevent misconstruction or abuse of its powers” we understand not only what some of the fears were, but what the proponents claimed would be the remedy of those fears.  And while the Federalists Papers are not and never have been law ratified by the people, we do have the Tenth Amendment, ratified on December 15, 1791 that 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.

In case you are curious, you can find most of the “powers” that were “delegated to the United States by the Constitution” in Article One Section Eight, which include; “To coin Money, regulate the value thereof”, “To declare War, and grant letters of Marque and Reprisal” and “To establish Post Offices and Post Roads”.  And for powers the Constitution prohibited “to the States” go to Article One Section Ten and you find a list of powers the States do not have including; “No State shall enter into any Treaty, Alliance or Confederation” and “make any Thing but gold and silver Coin a Tender in Payment of Debts” .  This leaves a lot to the discretion of the States and to the people.

Then you had the “Alien and sedition Acts of 1798”, and our first real encounter with laws that people in opposition to the party in power claimed was unconstitutional.  While study of the history of these laws can be very interesting, I think the response is germane to this discussion.  Thanks to written history, we can go back and ask the leaders who opposed federal usurpations like “Alien and Sedition Acts” what we should do if the Federal Government passed a law that we felt was unconstitutional.

Thomas Jefferson:

“… whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: … 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”  “Where powers are assumed [by the general government] which have not been delegated, a nullification of the act is the rightful remedy.”

James Madison:

“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.”

Daniel Webster:

“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority …, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist.”


To answer the question; WHO DECIDES?  The answer has always been the same, it is the people, and it has always been the people.  Even while we have remained silent, was that silence not consent?  While we were busy working for that house with the 2 car garage, entertaining ourselves with movies and sports, leaving the power over the Government up to others, was that not consent for the status quo?  While the stark usurpations of power from the last two presidents have stirred some instinct of freedom in us, can we be surprised at the indignation of the political class over our complaints?  No the derision expressed is both understandable and predictable to our movement as anyone who has personal experience with a loss of power and authority can attest to.   This is why we must remain steadfast in our resolve today.  We must stand for those generations who did not so that those who come after us will have the liberty our founding fathers sought to provide us, their posterity.


Geoff Broughton
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