cross-posted from the Pennsylvania Tenth Amendment Center

At about 36 minutes into this video (watch the whole thing), Tom Woods incorporates discussion of five propositions from An Exposition of the Virginia Resolutions of 1798 by Abel P. Upshur,

1.)  That the Constitution of the United States is a compact between the states, as such.

2.)  That the government established by that compact possesses no power whatever except what the plain sense and intention of that compact gives to it.

3.)  That every act done by that government, not plainly within the limits of its powers, is void.

4.)  That each state has a right to say whether an act done by that government is plainly within the limits of its powers or not.

5.)  That the states are not bound to submit to, but may resist, any act of that government which it shall so decide to be beyond the limits of its powers.

So we see that we have two options:

  1. The modern understanding where 5 judges of 9 decide whether or not a law is Constitutional.
  2. Upshur’s understanding (also held by Madison and Jefferson) that a law is Constitutional if 50 states and the federal government all agree that it’s Constitutional.

Which option sounds like the rule of law and which one sounds like the rule of men?

Thought experiment: Which option, over time, leads to a stable interpretation of the Constitution and which one makes the interpretation unpredictable?

Hint:  Does anyone think they can predict how the supreme court will rule about the Patient Protection and Affordable Care Act (PPACA)?  Is there any doubt how the interstate commerce clause will be interpreted if 50 states and the federal government all have to agree on what it means?  Would the congress even have tried to pass the PPACA if they knew that all fifty states had to agree on its legality?

Update: h/t

Steve Palmer