The chief role of the United States Supreme Court’s is to have the final say regarding the constitutionality of law, right?

Wrong.  At least according to Thomas Jefferson and James Madison, that is.

According to the spirit and letter of the Constitution, the purpose of the federal courts is to adjudicate disputes on a few defined types of cases, not to wield an unrestricted monopoly on the interpretation of law.

Allowing the federal government to determine the scope of the federal government’s authority would be like giving a criminal defendant the ability to dismiss the charges against him, or permitting a football game to be officiated by a player employed by one of the two teams playing against each other. The truth is that federal judges are political appointees that are also part of the federal government. As such, their opinions are subject to fallibility and partiality.

While some Federalist advocates of the Constitution pledged that the federal courts would invalidate unconstitutional laws (see The Federalist #78), nowhere did they imply that they would have a monopoly power to do this. John Marshall, who was largely responsible for extending the power of the federal judiciary, never disputed this.

During the ratification struggle, Edmund Randolph assured Virginians that the general government would only have the powers “expressly delegated” to it. In New York, Alexander Hamilton said that “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding. In the same manner the states have certain independent power, in which their laws are supreme.” In Pennsylvania, James Wilson assured the skeptical masses that all powers not delegated were reserved to the state authorities:

But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.

In 1791, Jefferson wrote that the “foundation” of the federal Constitution was the principle specified in the Tenth Amendment. Therefore, the federalist nature of the government precluded the possibility for state powers to be trampled upon.

Even in the famous 1803 case of Marbury v. Madison, Chief Justice Marshall noted:

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

The supremacy of law faces a strict prerequisite – the requirement that the law in question is pursuant to the Constitution. Undelegated, unlisted, unspecified powers are thus void and negated.

The fact remains that the states did not delegate power to the federal government to create law concerning health care or health insurance, whether or not crafty politicians are ambitious for such law to be imposed. Still, the federal government regularly assures us that Supreme Court decisions are binding, final, and authoritative.

Nonsense, according to Jefferson. The “Sage of Monticello” believed that each individual state, as parties to the compact of the Constitution, had an independent ability to judge each law’s constitutionality. He wrote that the Constitution “is a compact of many independent powers, every single one of which claims an equal right to understand it and to require its observance.” Jefferson’s observation, which he held until the end of his life, can be demonstrated by his authorship of a bill for Kentucky in 1798 which expressed this principle, and declared that “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Since the states built the federal government, they have an obligation to weigh in and prevent encroachments.

Madison followed, writing a counterpart bill of the same type for Virginia. He professed that the “states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed either in a hasty manner or on doubtful and inferior occasions.”

After several abysmal decisions by the Marshall Court to eradicate the original understanding of the Constitution (see Fletcher v. Peck, Martin v. Hunter’s Lefse, and McCulloch v. Maryland), Jefferson was convinced that the court was actively turning the Constitution into a dead letter. Such a judiciary, Jefferson said, was characterized by “the despotism of an oligarchy.”

Clearly, federal judges could not always be relied upon to make flawless and constitutional decisions. Jefferson wrote that federal judges were “as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…” He referred to the philosophy of these judges as having a maxim of “boni judicis est ampliare jurisdictionem,” a Latin phrase that means: “it is the part of a good judge to extend his jurisdiction.”

To counter this gradual expansion of power, Jefferson worked diligently against the federal judiciary. He refused to enforce the blatantly unconstitutional Sedition Act, which the federal courts failed to invalidate. His Republican Congress successfully impeached and attempted to remove a sitting Supreme Court justice for his belligerency, and labored to render Federalist jurisprudence impotent in various other ways.  When the federal courts of today operate in the same manner, the same remedy should be prescribed.

In justification for their decision in National Federation of Independent Business v. Sebelius (2012), the high court reasoned that the Affordable Care Act was constitutional on the basis that it was a tax, and the federal government was vested with the power to tax. This was completely contrary to the understanding of the founders, which conferred no ability in the Constitution to tax for any reason whatsoever. In The Federalist #45, Madison addressed this matter specifically:

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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

According to Madison, and all other Federalists tasked with explaining the Constitution to the states, the federal government simply could not tax to support policy outside of its enumerated authority.

Even while reaching a faulty conclusion regarding the law, Chief Justice John Roberts acknowledged the following concept:

We look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own. The States are separate and independent sovereigns. Sometimes they have to act like it.

The states simply have to act like the sovereign units they are, and take action to erect obstructions and barricades against this type of policy. Even the federal courts have been forced to concede that states cannot be commandeered to participate in federal regulatory programs. This has been reiterated continually over many years, namely in the cases of Prigg v. Pennsylvania (1842), New York v. United States (1992), and Printz v. United States (1997).

Madison prophetically authored a blueprint for resisting the vast expanse of federal power in The Federalist #46. In doing so, he recommended several steps states can take to stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Madison called for “refusal to cooperate with officers of the Union” and suggested that when properly employed, state resistance would “present obstructions which the federal government would hardly be willing to encounter.” The states can justifiably heed Madison’s warning and follow his example.

In the interest of human liberty, there is no need to remain deferential to a federal judiciary that is plainly wrong.

Instead, the Supreme Court should be condemned for the same reasons today – the assumption of the power to make law, blind all other centers of power to its own constitutional viewpoints, and to usurp the powers of the states. By following the guidance of Jefferson and Madison, we should respond in the same way. Unconstitutional health exchanges should be resisted at a local level, lest the Constitution become, as Jefferson wrote, “a mere thing of wax in the hands of the judiciary.”

Dave Benner

The 10th Amendment

“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.”



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