“The magistrate in whom the whole executive power resides cannot of himself make a law”

A good reminder for today – and every day of the year – from James Madison, writing in Federalist No. 47.

But telling politicians to “read the Constitution,” or follow what Madison had to say – isn’t really effective. And Madison himself recognized this as well.  In Federalist No. 48, he wrote:

“A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

In short – constitutions don’t enforce themselves.

As Thomas Jefferson put it in 1798, “where powers are assumed which have not been delegated a nullification of the act is the rightful remedy.”

This echoed what John Dickinson wrote in a November 1765 broadside urging resistance to the hated Stamp Act.

“IF you comply with the Act by using Stamped Papers, you fix, you rivet perpetual Chains upon your unhappy Country.”

In his broadside, Dickinson explained why – precedent:

“You unnecessarily, voluntarily establish the detestable Precedent, which those who have forged your Fetters ardently wish for, to varnish the future Exercise of this new claimed Authority.” [emphasis added]

Future Supreme Court Justice James Iredell put it this way in the North Carolina Ratifying Convention:

The only resource against usurpation is the inherent right of the people to prevent its exercise. This is the case in all free governments in the world. The people will resist if the government usurp powers not delegated to it. [emphasis added]

Notice he didn’t consider resistance a mere “good idea,” or a potential solution. Iredell – like Jefferson – considered it essential, the “only resource” in response to usurpation – an exercise of powers not delegated in the Constitution.

Founder after founder repeated the same strategy for dealing with government overreach – Theophilus Parsons, Archibald Maclaine, James Otis, Benjamin Franklin – and many others.

At the end of the day – it’s not liberty if it comes with a government permission slip.

Thomas Jefferson may have summed it up best:

“A free people claim their rights, as derived from the laws of nature, and not as the gift of their chief magistrate”

There’s a basic lesson here. We the people need to learn how to exercise our rights whether the government wants us to or not.

Michael Boldin

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