cross-posted from the Oregon Tenth Amendment Center

I was talking to a friend of mine and we were discussing the recent Bond ruling that recognizes individual standing to claim Federal 10th Amendment violations when defending in Criminal Court. I referenced the fact that the Federal Govt. shouldn’t be allowed to try cases of constitutional law anyways (since they are, in effect, deciding their own case which any layman can tell you is inconsistent with justice). He promptly replied, “Yeah they should try it in State court” very sarcastically – as if that was unthinkable…… Is it?

Well, turns out this is a lot to think about. It makes no sense for either the state that is a party to the dispute, or the Feds, to be the court in which this case is heard, as they are both parties to the case. This brings us to the question, “If not the Feds, then who?” The other parties to the Constitution are the alleged victims. If the Feds believe a state has violated the Constitution, the appropriate remedy is a “Class Action” lawsuit with the other states, to decide if they want to pursue redress. The Feds (who, after all, are simply agents of the states) have no claim whatsoever. They have not been wronged.

Let’s take this a step further and see what it would look like in practice. Say Oregon violates the Constitution by nullifying a law of which we claim violates the Constitution (say, “Obamacare”) ..the Feds, of course, would threaten legal action against the state (in this case Oregon). They should have to bring this action up to the Senate (which still technically represents the states), and specify why the states should bring a Class Action against Oregon. The Senate would then decide which State Court to use, and they would also specify which (if any) charges to bring. In this way, it is a fellow Party to the Constitution, (that the Feds allege has been violated), as opposed to the creature of the Constitution. If cases were brought about in this way and the Senate was still appointed by the State governments, I doubt that we would be in the trouble we are now in. Since no states actually benefit from this law (with the notable exceptions of Louisiana and Nevada) the Senate could possibly vote to dismiss the charges. (While I concede this is not a certainty… one can dream, can’t they)?

Now lets look at the alternate case (where the State is in the wrong). Maybe we place a tariff on imports of beef (in an attempt to strengthen our ranching industry). We would be in violation of the Interstate Commerce Clause. In this case, since we would actually be causing harm to the other states (and incidentally harming our own citizens as well) the Senate (no doubt) would decide in this case to pursue charges (and would likely win). We would have to remove the tariffs or face federal action. In this case, the Feds would act as the enforcement arm of the Constitution. This system, I believe… would be more in keeping with the federalist nature of the Constitution as founded.

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