Author: "For Liberty"

“When the federal government violates our rights, we’re not just supposed to sit idly by and wait for the federal government to stop itself.”

Michael Boldin, Tenth Amendment Center

By: TJ Martinell | Courtesy of the Tenth Amendment Center

The common understanding of the famous Marbury v. Madison case is that it established the authority of the Supreme Court to determine what the Constitution says. From there, it’s held that the Court gets to determine the limitations placed on the federal government as well as the states. In short, the rest of the federal government, and the states, are bound by what the Supreme Court decides.

But is that the truth? A paper from Northwestern University School of Law Constitutional Theory Colloquium Series seeks to clear up the myths associated with the Marbury decision. In the first sentence of his 2004 paper, “The Irrepressible Myth of Marbury,” Michael Stokes Paulsen sets the mood for the rest: Nearly all of American constitutional law today rests on a myth.

“A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison the Supreme Court of the United States created the doctrine of ‘judicial review.’ Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.”

This myth, he continues, allows the Supreme Court to dictate what the Constitution means via “opinions,” i.e. ex cathedra pronouncements. Though those rulings are supposed to be binding and create a firm precedent, this doesn’t stop them from being overruled by future courts.

“Nearly every feature of the myth is wrong,” Paulsen writes. “For openers, Marbury v. Madison did not create the concept of judicial review, but (in this respect) applied well-established principles. The idea that courts possess an independent power and duty to interpret the law, and in the course of doing so must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time Marbury rolled around, more than a dozen years after the Constitution was ratified.”

This was “well-recognized in the courts of many states for years prior to Marbury, was contemplated by the Framers,” and defended in ratification debates.

Alexander Hamilton also addressed this in Federalist No. 78, writing that the Constitution itself was supreme over any law or ruling.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .(emphasis added).

Yet, Paulsen says, the power of judicial review was “never understood by proponents and defenders of the Constitution as a power of judicial supremacy over the other branches, much less one of judicial exclusivity in constitutional interpretation.”

Incidentally, nowhere in the Constitution is the court given supreme authority over the other two branches. The Constitution itself, instead, was declared to be supreme, not the will of individuals holding federal office tasked with enforcing it.

Additionally, the Paulsen states that Chief Justice Marshall’s opinion on the Marbury case makes no claim of judicial supremacy. Taking Marshall’s statements out of context misrepresents what he and others considered the power of judicial review, which Paulsen defines as:

A coordinate, coequal power of courts to judge for themselves the conformity of acts of the other two branches with the fundamental law of the Constitution, and to refuse to give acts contradicting the Constitution any force or effect insofar as application of the judicial power is concerned.”

In other words, what Marshall and other justices were arguing in Marbury v. Madison wasn’t the idea of judicial supremacy, that the Supreme Court was the highest authority in the government. Their argument was that the judicial branch of the federal government derived its authority to interpret and apply the provisions within the Constitution from the Constitution itself. It did not derive its powers from the other two branches, but from the same document from which they received theirs.

Within the historical context of political science, this was a new and revolutionary idea.

Marshall states that the Supremacy Clause “confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument” (emphasis added).

“The logic of Marbury implies not, as it is so widely assumed today, judicial supremacy, but constitutional supremacy — the supremacy of the document itself over misapplications of its dictates by any and all subordinate agencies created by it,” Paulsen writes.

As an example of distorted statements, he cites an oft-quoted statement from Marshall’s opinion that “It is emphatically the province and duty of the judicial department to say what the law is.”

Taken by itself, it may sound like he is arguing for judicial supremacy. But, Paulsen claims, not only does this quote ignore relevant statements in the same paragraph, but it is just paraphrasing Hamilton from Federalist No. 78 in which he says “[t]he interpretation of the laws is the proper and peculiar province of the courts.”

Marshall goes on to write “Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Paulsen argues that this concept of judicial independence is wholly separate from judicial supremacy, in which the Supreme Court’s opinions are considered binding on all other branches of government, including the states.

“This is a far cry from a claim of judicial supremacy,” Paulsen writes. “It is merely a statement that, when performing the judicial task calls for deciding whether an act of Congress departs from the Constitution, the courts are up to the task. It is within the judicial province to make such a determination, and to make it independently of what Congress has determined.”

If this is the case, it bears little resemblance to the modern Supreme Court, which has joined hands with the other two branches of the federal government in violating the Constitution by issuing rulings that not only uphold their unconstitutional behavior, but go beyond even its own authority.

And this is defended under the concept of judicial review, in which the Supreme Court gets to decide the legality of any legal decision regardless of what the Constitution itself says and all branches of the government are bound to enforce their decision.

Almost all of these problems plaguing constitutional law, Paulsen believes, are the result of “the fundamental betrayal of Marbury’s premises and Marbury’s logic.”

Correctly read, Marbury stands for constitutional supremacy rather than judicial supremacy,” Paulsen states. “And constitutional supremacy implies strict textualism as a controlling method of constitutional interpretation, not free-wheeling judicial discretion” (emphasis added).

While Paulsen’s critique of the Marbury Myth is insightful and refreshing, it also indirectly demonstrates a fatal flaw in the federalist system without the power of the states to check unconstitutional authority via nullification: What if the Supreme Court, or any branch of the federal government, go beyond their constitutional authority and simply issue rulings based on their own beliefs and consider them binding on the whole nation? What if all three do so simultaneously or fail to check the others?

The fear of a tyrannical courts was expressed by anti-federalist “Brutus” (likely Robert Yates, a politician and judge) who wrote in Anti-Federalist 78-79 that there was nothing to prevent judges from supplanting the plain meaning of the text with their own misinterpretation.

There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

Fortunately, Jefferson and Madison foresaw this problem arising, as well. They understood that the obvious problems with giving the federal judiciary the exclusive authority of enforcing the limits of the Constitution. It was on this basis they crafted the Kentucky and Virginia Resolutions. In those resolutions, they declared that the states, which had created the federal government, were “duty-bound” to resist unconstitutional acts no matter which branch they originated from.

As Jefferson stated in the Kentucky Resolution:

That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; (emphasis added)

[T]hat 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.(emphasis added)

If the judiciary failed to defend the Constitution, Jefferson wrote, nullification was the “rightful remedy,” and the Myth of Marbury, which Paulsen’s paper attacks, is a perfect example of why

TJ Martinell

TJ Martinell is an author, writer, and award-winning reporter from Washington state. His dystopian novel The Stringers depicting a neo-Prohibition Era in the city of Seattle is available on Amazon.

Visit his personal site at www.tjmartinell.com. Join his Facebook page here. Listen to his weekly podcast on Sound Cloud. http://www.tjmartinell.com

By: Laurence M. Vance

The infamous Supreme Court case of Roe v. Wade did not legalize abortion in the United States. Its repeal will not outlaw abortion in the United States.

In Roe v. Wade (1973), the Court held that a woman’s right to an abortion fell within the right to privacy protected by the Fourteenth Amendment. States may not ban abortions before the fetus is determined to be “viable.” The case of Planned Parenthood v. Casey(1992) reaffirmed Roe, and further prohibited states from imposing an “undue burden” on a woman seeking an abortion.

The Hyde Amendment, implemented in 1977, forbids the use of federal Medicaid funds for abortions except in cases of life endangerment, rape, or incest. Some states also provide state funds for abortions in cases of fetal impairment, medical necessity, or to prevent grave, long-lasting damage to the woman’s physical health.

After President Trump appointed Brett Kavanaugh to the Supreme Court, some states, like New York, further liberalized their abortion laws. Other states have done just the opposite.

Like Alabama.

The governor of Alabama, Kay Ivey, recently signed a bill making the performing of an abortion a felony in nearly all cases. There are no exceptions for rape or incest, only when a woman’s life is in danger.

Eric Johnston, the president of the Alabama Pro-Life Coalition, is responsible for the bill. He was recently interviewed by NPR’s All Things Considered.

According to Johnston, the Alabama law is a vehicle to get the Supreme Court to revisit Roe v. Wade and ultimately to save the lives of unborn children. He expects the law to be held unconstitutional “in the trial court and in the appellate court,” but is “hopeful that the Supreme Court will agree to review the case at that point.”

The state of Missouri is taking a different approach.

The Missouri House has passed legislation designed to survive court challenges, which would ban abortions at eight weeks of pregnancy. It includes “exceptions for medical emergencies, but not for pregnancies caused by rape or incest.” Although “women who receive abortions wouldn’t be prosecuted,” “doctors would face five to 15 years in prison.” Missouri’s Republican governor has pledged to sign the bill. Missouri’s Rep. Nick Schroer said his legislation is “made to withstand judicial challenges and not cause them.” The Republican House Speaker, Elijah Haahr, said “the measure was drafted with a legal team and based on previous court rulings across the U.S.”

I have already written about some of the states that have passed “heartbeat bills.”

Abortion supporters and abortion opponents alike have been very careless with their language. I have heard both parties say that Roe v. Wade legalized abortion in the United States. Some abortion opponents think that the repeal of Roe v. Wade would outlaw abortion in the United States. And I suspect that abortion supporters are happy to let them advance that opinion since it furthers their cause when it comes to persuading moderates to keep the status quo.

At least most Americans know that Roe v. Wade was about abortion. I have not seen any recent polls, but a Pew Research Center poll in 2012 found that only 62 percent of Americans and just 44 percent of Americans younger than 30 knew that Roe v. Wadewas about abortion. Some thought the case was about school desegregation, the death penalty, or environmental protection.

Before the Roe v. Wade decision in 1973, abortion was strictly a matter of state law. Thirty states prohibited abortion without exception; sixteen states banned abortion except in the case of rape, incest, life or health threat to mother, and/or fetal impairment; and four states allowed abortions in nearly all cases before the fetus was viable. New York had the most liberal abortion laws, and many women would travel there to have the procedure.

The repeal of Roe v. Wade would fully return the abortion to the states where it belongs. The case should never have reached the Supreme Court to begin with. Conservatives who seek a constitutional amendment to prohibit abortion are absolutely clueless about the nature and structure of government in the United States. There should be no federal legislation to criminalize abortion anymore than there should be federal legislation to criminalize murder, rape, assault, or armed robbery. These are all state matters. Likewise, there should be no attempt by the federal government to regulate or restrict state abortion laws.

It is interesting that liberals want the federal government to override the states when it suits their abortion agenda, but then they want the states to be supreme when it comes to legalizing marijuana if the federal government won’t do it.

Conservatives are no better. They want the federal government to override the states when it suits their drug prohibition agenda, but then they want the states to be supreme when it comes to prohibiting abortion if the federal government won’t do it.

Both of them should have listened to James Madison, who wrote in Federalist No. 45:

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. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Overturning Roe v. Wade will not end abortion in the United States, but it will do several things besides make it harder for women in some states to obtain an abortion. It will partially restore federalism. It will partially limit the power of the federal government. It will show that the Supreme Court is not infallible. But it will also atone for all the sins of Trump in the eyes of die-hard Republican pro-lifers since he nominated Brett Kavanaugh to the Supreme Court.

This article was originally published at LewRockwell.com, and is reposted here under a CreativeCommons 4.0 license.

Laurence M. Vance

Laurence M. Vance is a policy advisor for the Future of Freedom Foundation. He is the author of over a dozen books, including The Revolution That Wasn’t. Visit his website: www.vancepublications.com. Send him email.

By: Mike Maharrey | First Published on Feb 9, 2018

The federal judiciary has arguably become the most powerful branch of the general government. Opinions issued by nine politically connected lawyers have redefined marriage throughout the entire United States, authorized the internment of American citizens and dictated what kinds of decorations cities can display in their parks.

Federal courts were never intended to wield this kind of power and control. In Federalist #78, Alexander Hamilton argued that judiciary would operate as the weakest branch of the federal government.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.”

The judiciary has a very specific role – to judge cases – sometimes referred as “controversies.” The two words were used interchangeably in the founding era.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.)

This power was further limited by the 11^th Amendment.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

If an issue isn’t a proper judicial “case,” the federal judiciary does not have any jurisdiction. It has no authority to issue advisory opinions, or make judgments outside the narrow scope of a given case. During the Philadelphia Convention, Charles Pinckney of South Carolina submitted a proposal to require the Supreme Court to issue advisory opinions at the request of the president or Congress. The convention rejected this proposal.

Technically, a ruling only binds the parties to the case, and it can only be applied within contexts identical to the facts of the controversy. One can certainly draw broader conclusions from a ruling, but it doesn’t automatically apply to all people at all times. But courts tend to follow precedent, and future judges won’t generally overturn “settled law,” even when the precedent strays significantly from the Constitution as ratified.

Congress wields a great deal of power over the federal courts. The Constitution only directly establishes a Supreme Court. Congress has the authority to “ordain and establish” inferior courts. In fact, Congress could do away with the entire existing district and appellate court system. It also has the authority to determine the number of justices on the Supreme Court.

Additionally, Congress has the power to limit the federal courts’ jurisdiction. The Constitution delegates “appellate jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.”

For instance, Congress could pass a law prohibiting the Supreme Court from hearing cases related to abortion.

Roger Sherman of Connecticut was a delegate at the Philadelphia Convention and a supporter of ratification. During the ratification debates, he summarized the limitation of federal judicial power.

 It was thought necessary in order to carry into effect the laws of the Union, and to preserve justice and harmony among the States, to extend the judicial powers of the confederacy; they cannot be extended beyond enumerated cases, but may be limited by Congress, and doubtless will be restricted to such cases of importance and magnitude as cannot safely be trusted to the final decision of the court of the particular states.”

JUDICIAL REVIEW

The Supreme Court has expanded its power primarily through judicial review – the authority to test legislative acts against the Constitution.

Most people in the founding era seemed to assume judicial review was legitimate. In fact, courts exercised this power during the colonial era. The Privy Council reviewed colonial legislation and ruled on its validity under colonial charters. There were also several instances when state courts invalidated state legislation, finding it inconsistent with state constitutions.

Alexander Hamilton hinted at judicial review in Federalist #78, arguing that it would serve to keep the other branches of the general government in check.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

A number of prominent supporters of the Constitution affirmed the power of judicial review and argued that it would help keep the federal government in check. For instance, during the Connecticut ratifying convention, Oliver Ellsworth said, “If the United State go beyond their powers, if they make a law which the constitution does not authorise, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void.”

James Wilson made the same assertion during the Pennsylvania ratifying convention

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto will not have the force of law.”

And John Marshall, who would later famously pen the opinion in Marbury v. Madison, also argued that judicial review would serve as an important check on federal power. He said if the government of the United States “were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.”

Legal scholars today trace judicial review back to Marshall’s opinion in Marbury. From this case, they argue the Supreme Court has the sole authority to determine the constitutionality of a federal act. They claim Marshall established this authority when he wrote; “It is emphatically the province and duty of the judicial department to say what the law is.”

Most lawyers and legal experts, rip this one sentence out of context from Marshall’s opinion and find in it the authority for the Supreme Court to stand as the exclusive and final judge on the extent of federal power. But even if you accept the bizarre notion that a political body can vest power in itself on its own whim, this was not Marshall’s intent. He merely affirmed the power of judicial review. His reasoning was completely consistent with what he said during the Virginia ratifying convention.

Marshall was answering a specific question: does the Court have the authority to consider the constitutionality of an act when ruling on a case. At issue was a provision of the Judiciary Act of 1789 and whether the Court had original jurisdiction to decide if a writ of mandamus could be issued to force Madison to hand over Marbury’s commission. Some argued the court should just consider the law – the Judiciary Act itself – and not the Constitution.  Marshall defended his decision to rule based on the Constitution.

The judicial power of the United States is extended to all cases arising under the Constitution.

“Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

“This is too extravagant to be maintained.”

Clearly, the courts possess the authority to judge the constitutionality of an act. Few people dispute that. Judicial review was widely accepted during the ratification debates and was even held up as in important check on the legislative and executive branches.

But notice an important point: nowhere does Marshall, nor any supporter of the Constitution during the ratification process, assert that the Court stands as the sole and final judge of constitutionality. In fact, in Marbury, Marshall maintains that the Constitution also binds the Court itself.

The particular phraseology of the Constitution…confirms and strengthens the principle…that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

In an 1815 letter to W.H. Torrance, Thomas Jefferson forcefully asserted that the courts do not have exclusive power to determine constitutionality.

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”

Jefferson warned against allowing federal courts to become the final arbiter of the Constitution. He contended that every branch was independent, and has a responsibility to judge the constitutionality of an action for itself. In a letter to Abigail Adams, Jefferson argued the courts had every right to declare the Sedition Act of 1798 constitutional and meet out punishment under the law, but he contended that the court’s decision did not bind the executive branch.

You seem to think it devolved on the judges to decide on the validity of the sedition law. but nothing in the constitution has given them a right to decide for the executive, more than to the Executive to decide for them. both magistracies are equally independant in the sphere of action assigned to them. the judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the constitution. but the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. that instrument meant that it’s co-ordinate branches should be checks on each other. but the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also in their spheres, would make the judiciary a despotic branch.”

Jefferson’s arguments make sense within the context of the Constitution. If the judiciary maintains the sole authority to determine the powers of the federal government, the federal government becomes effectively unlimited. After all, the Supreme Court makes up part of the federal government. Jefferson forcefully made this case in the Kentucky Resolutions of 1798.

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; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

So, if the judicial branch doesn’t have the final say on constitutionality, who does? I cover that in the Constitution 101 article, Who Decides Constitutionality.

Mike Maharrey

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE

By: Michael Boldin

This article is featured in is today’s Tenther newsletter, which everyone in the nullification movement gets daily or weekly. Be one of them – and Become a member here to support the TAC.

Here at the TAC, we take on a wide range of issues across the political spectrum. And invariably, any time we cover one, we hear some people telling us how it’s unimportant. They tell us that we should focus on something more “pressing.”

Or, we’re told that one issue is just for an “emergency,” and we should ignore it to spend our time and energy on long-established violations of the Constitution.

While I totally understand the need to prioritize in a time when we have thousands of unconstitutional laws and regulations on the books – it’s not just foolish, but also dangerous to consider opposition to any of them as “unimportant” or a waste or time.

I’m sure you’ve heard things like this as much as I have.

“The Patriot Act is just for the terrorists”

“The income tax is only an emergency war time measure”

“If we don’t ban ___, people will die in the streets!”

“But it’s for the children!”

We were warned – repeatedly – how dangerous this mentality is.

Founder after founder warned us against turning a blind eye to violations of the Constitution, which they also called “arbitrary power” or “usurpations” of power.

Samuel Adams put it this way:

Let us remember that if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom!

John Dickinson, the “Penman of the Revolution,” urged us to “Oppose a disease at its beginning” because even a single concession to the limits of government power will act as a “PRECEDENT for other concessions” in the future.

He went so far as to say those concessions lead to the end of freedom.

Thomas Jefferson gave the same advice in his famous “Notes on the state of Virginia.” He wrote:

“The time to guard against corruption and tyranny, is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.”

These leading founders and revolutionaries recognized a timeless truth. When you allow a government to chip away at the limits on its power, eventually the dam will burst. You will end up with a government exercising virtually unlimited authority – arbitrary power.

John Adams warned us to “Nip the shoots of arbitrary power in the bud” because this “is the only maxim which can ever preserve the liberties of any people.”

And George Washington, in his famous farewell address written by James Madison – rejected the notion of a “living, breathing” Constitution that just changes with the times based on political whims in the Congress, the Executive or the Courts rather than through the process established in the Constitution itself.

He said:

But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.

I covered this all in more detail on Good Morning Liberty on Friday morning: “A warning from 5 Founders on the Danger of Ignoring the Constitution.”

We have a podcast and video version at this link.

Thank you for reading and your support!

Michael Boldin

Michael Boldin [send him email] is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter – @michaelboldin and Facebook.http://www.tenthamendmentcenter.com

Red flag laws have nothing to do with saving lives, protecting people, preventing suicide or preventing homicide. Rather they have everything to do with dismantling the Constitution. This is more than just gun control. It is taking away due process of the law.
“Congress holds out the proverbial, governmental carrot, by offering $$$$$$ to each and every state that enacts a red flag law. Learn the facts that you need to know to make sure your legislators don’t grab money from this bag and dismantle the Constitution.”

By: Suzanne Sherman

A case recently decided by the U.S. Supreme Court once again reveals the inherent danger of placing virtually unlimited authority in the federal judiciary and centralizing decision making for 50 sovereign states and over 325 million people in the hands of nine unaccountable, unelected lawyers.

In Mitchell v. Wisconsin 588 U. S. ___ (2019), the United States Supreme Court considered what police officers can do when a person suspected of driving under the influence is unconscious and cannot be given a breath test.

A summary of the facts are as follows: In May of 2013, Gerald Mitchell’s neighbor observed him appearing intoxicated and agitated. The neighbor contacted police after Mitchell got in his van and drove away.  Police located Mitchell walking near Lake Michigan, where he had taken pills and consumed vodka. His van was nearby. Mitchell was given a preliminary breath test, which indicated his blood alcohol content (BAC) was .24, three times over the legal limit.

Mitchell was transported to a police station for an additional breath test using more reliable equipment for evidentiary purposes in court. He lost consciousness en route, and officers wheeled him into the station. At that point, he was too lethargic to participate in the breath test, so he was transported to a nearby hospital. Even though he was unconscious upon arrival, officers read aloud to a slumped over Mitchell the standard statement offering him a chance to refuse the blood test. Mitchell was unable to refuse, and remained unconscious during the procedure.

At the instruction of law enforcement officials, the hospital administered the blood draw. The test took place approximately 90 minutes after his arrest. Mitchell was charged with violating two related provisions of Wisconsin’s drunk driving laws. He moved to suppress the results of the blood test as a violation of the Fourth Amendment’s prohibition against unreasonable searches, as it was conducted without a warrant.

Wisconsin ignored the Fourth Amendment claim and instead rested on the proposition that the search was valid under the state’s implied-consent law, meaning every person driving on the state roads suspected of driving under the influence of drugs or alcohol is presumed to have consented to testing for the proscribed BAC level, whether it be via a breath or blood test.

Interestingly, the United States Supreme Court ignored the implied-consent issue, and instead focused on whether the warrantless draw on an unconscious suspect violated the Fourth Amendment, which states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The inception of the Fourth Amendment – which had little British precedent – was largely the result of the American reaction to the British writs of assistance in the 1760s. Unlike genuine search warrants, that required a much higher level of scrutiny and had to be approved by a judge, writs of assistance did not expire and did not require an itemized list of items to be seized. Under the general writs, customs officials were given complete discretionary freedom to enter private property at will. These two factors made the writs especially contemptible, rousing the indignation of those who believed that traditional liberty was rooted in the inviolability of property rights.

James Otis, the famed Massachusetts agitator that most famously articulated the treachery of such a policy in a famous legal case. Otis argued that the writs of assistance would guarantee arbitrary and despotic governmental undertakings. “Every one with this writ may be a tyrant,” he warned.

While five of the Crown’s judges decided to uphold the constitutionality of the writs, and Otis lost the case in question, he made a potent impression on compatriots that identified with the compelling force of his stance. A young John Adams was so moved by the persuasive power of Otis’ words, he wrote that “American independence was then and there born.” By all accounts, the firebrand’s condemnation of the writs left a lasting impression that wove itself into the tapestry of early American liberty.

Adopting Otis’ sensibilities, Virginia’s Declaration of Rights explicitly prohibited such a system:

“That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted”

In a similar manner, Massachusetts adopted a declaration of rights that required all searches to be “reasonable,” and held that “no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.” Several other states followed suit in the 1780s. By the time the First Congress mulled the Bill of Rights, such a safeguard seemed an obvious inclusion to inhibit the general government.

In the present case, the Court was presented with a criminal matter arising out of the state of Wisconsin. The appellate court sent the case to the State Supreme Court to determine if the Fourth Amendment of the United States was violated, a clear example of a state surrendering its sovereignty. Making such a claim will ultimately move the matter to the federal judiciary.

Throughout the Philadelphia Convention, James Madison pushed for a federal “negative” (veto power) over state laws. This idea was rejected on each attempt. When a number of States insisted on adding a Bill of Rights as a condition of ratification, he argued against it saying, along with Alexander Hamilton and James Wilson, among others, that it would be redundant since the “general” government had only the powers specifically enumerated.

The legislative powers of Congress are set forth in Article I, with the enumerated powers listed therein under Section 8. The Tenth Amendment asserts the following:

“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.”

Here we see the United States Supreme Court sitting in judgment of how local police are handling state laws with regard to driving under the influence on state roads, which according to the Constitution as ratified, is a matter to be determined by the states, regardless of the erroneous Fourth Amendment claim.

The constitution that should control in this case is the Wisconsin State Constitution — a fact that is ignored by the federal courts, and in this case, by the state itself.

So why wasn’t this adjudicated as a matter of state law under the state constitution?

Once again, we can thank the 14^th Amendment for opening the door for federal interference in matters never intended nor consented to by the states.

The Preamble to the Bill of Rights states, in relevant part, the following:

“The Conventions of a number of the States…expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.”

When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provisions to be made applicable against the states. He argued that was where liberty would be most likely threatened. Again, he was defeated. The Bill of Rights was never understood to be applicable against the states. There is absolutely no historical evidence of the Bill of Rights being made enforceable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, 32 U. S. 243, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”

In delivering the opinion of the Court in Mitchell case, Justice Alito refers to two previous instances where “we have addressed…the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol.”

Again, dictating local police procedures was never a power delegated to the general government. Justice Alito is admitting that the Court has amended the Constitution.

The Constitution can be amended, and the process for doing so is set forth in Article V; Congress or the States can propose an amendment and ¾ of the States must support its ratification. Justice Alito is acknowledging that the Supreme Court can hold its own Constitutional convention without inviting the States to weigh in.

This interpretation by the Court is problematic and unhistorical.

The 39th Congress, which proposed the amendment, did not debate the issue of “incorporation,” and no such premise had been adhered to in the preceding years. But, by 1925 the Supreme Court was well on its way toward inflicting a complete rewrite of the Constitution onto the states and the American people, thus diminishing the “separation of powers” between the states and the “general” government. This made-up doctrine has served the chief mechanism through which a “one-size-fits-all” form of government, with all rights and powers emanating from Washington, D.C., has arisen.

Justification for federal review of a State issue also arises from a misapplication of the Court’s jurisdiction, namely the statement in Article III that “…judicial power (of the federal courts) shall extend to all cases…arising under this Constitution…” What is the result of this interpretation? It means that all one has to do to circumvent State policy is to call the matter a “Constitutional question,” file in federal court, and ignore the Tenth Amendment, the foundation of the Constitution, according to Thomas Jefferson.

In the present case, issues of federalism are ignored, largely due to two factors: ignorance and the emotional response to the tragic consequences of driving while intoxicated.

Alito stated the following:

“The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; BAC tests are crucial links in a chain on which vital interests hang.”

He explains further that, “twice we have referred to the effects of irresponsible driving as “slaughter” comparable to the ravages of war. Breithaupt v. Abram, 352 U. S. 432, 439 (1957); Perez v. Campbell, 402 U. S. 637, 657, 672 (1971).

To compare the statistics of highway deaths attributable to drunk-driving to the “ravages” of war is hyperbole at best and disingenuous at worst. It is language selected to trigger the emotions and blind the eye that should be jealously guarding against an ever-expanding encroachment upon state sovereignty. Clearly, no one wants to see people killed on the highways due to drivers operating motor vehicles while impaired. But that is not an excuse to ignore the fact that the states are the proper authorities entrusted with managing this issue; further, the means by which they have entrusted law enforcement to carry out procedures is a manner to be accepted or challenged at the state level.

Supreme Court opinions have essentially gutted the warrant requirement of the Fourth Amendment. Further, the Court was mixed on whether a warrant under Mitchell’s circumstances was required at all.

Justice Thomas opined, “The better (and far simpler) way to resolve this case is to apply ‘the per se rule’ I proposed in Missouri v. McNeely, 569 U. S. 141 (2013)…Under that rule, the natural metabolization of alcohol in the bloodstream creates an exigency once police have probable cause to believe the driver is drunk, regardless of whether the driver is conscious.” (Emphasis added.)

Justices Sotomayor, Ginsburg and Kagan joined in the dissent, saying, “When the aim of a search is to uncover evidence of a crime, the Fourth Amendment generally requires police to obtain a warrant,” Veronia v. School Dist. 47J v. Acton, 515 U. S. 646 (1995) and that “(t)he warrant requirement is not a mere formality; it ensures that necessary judgment calls are made ‘by a neutral and detached magistrate,’ not ‘by the officer engaged in the often competitive enterprise of ferreting out crime.’” Schmerber v. California, 384 U. S. 757 (1966)

If the states were left to resolves this matter on their own, – the purpose of the system Madison described as federal and not national in nature in Federalist No. 39 – people could choose under which system they prefer to live. They may choose liberty over safety and rely on the fact that a warrant is the preferred method of gathering evidence, or they may opt for the feeling of security, and know that at any time, they may be required to allow law enforcement to inject a needle into their body for the purpose of gathering evidence against them.

By surrendering such matters to the federal judiciary, we are admitting that we are incapable of governing ourselves and that the right to consent to our system of government, over which a war was fought, really doesn’t matter after all.

Dave Benner contributed to this article. 

Suzanne Sherman

Suzanne is a licensed attorney who quit her practice to raise her children. In 2013, she left California to enjoy the peace and freedoms available in a remote location in the mountains of North Eastern Utah. She makes radio appearances, hosts a show and speaks on principles of federalism, history and liberty. She can be reached at suzanne@littel.com https://www.suzannecsherman.com/

Article taken from the Tenth Amendment Center Please visit their website and follow their work.

Maharrey’s Monday Musings July 15, 2017   Never Call the 202 Area Code   Years ago, when I was first dipping my toes into the world of political activism, Tenth Amendment Center founder and executive director Micheal Boldin told me, “Never call the 202 area code!” I didn’t get it. If I was going to be a political activist, I was going to have to call Washington D.C., right? Well, no. Not if I want to actually get anything done.  I didn’t get it then, but I sure do now.  Of course, Boldin was engaging in hyperbole. A little. Maybe. But the truth is if we want to put the federal government back within its constitutional box, begging D.C. to get back inside isn’t a very effective strategy. As I have often said in speeches, “Americans want Washington D.C. to solve all their problems. They need to realize Washington D.C. is the problem!” I’ll give you a perfect example.  You may have seen the headlines about how the federal government is using driver’s license photos as a great big police lineup via facial recognition technology. I wrote about it HERE. There was a lot of outrage about this revelation on Capitol Hill. And rightly so. The problem is we experienced this same revelation about three years ago. The same congresscritters were privy to this information then. They didn’t do anything about it. The sad truth is they won’t do anything about it this time either. Oh, some of them will use it to generate some soundbites that they can use in the next campaign when they want to convince you they care about your privacy. But Congress won’t do anything to end mass surveillance, protect your privacy and uphold the Fourth Amendment.  They never do. In fact, Sen. Frank Church warned about mass surveillance and the NSA back in the 1970s. They’ve had more than four decades to do something. I’m still waiting. That’s why Michael Boldin told me never call the 202 area code. It’s a waste of time. That’s why we focus on state and local action. Make no mistake — these governments suck too. But they are generally more responsive to public pressure than the politicians in the D.C. swamp. We can drive change from the bottom up. And we do! Michael’s Website

By: Joe Wolverton, II

There was a time in our history when one of our finest patriot fathers is said to have waved the saber of “treason” in the face of the world’s most powerful monarch. In return, his fellow Burgesses exclaimed that the patriot was committing treason. That brave (some would say, given the circumstances, reckless) man was the incomparable Patrick Henry.

The silver-tongued orator was never at a loss for words, and he spoke with a ready arsenal of logic. Biographer William Wirt said of him in 1817, “Tis true he could talk — Gods how he could talk!” Lord Byron called him the “forest-born Demosthenes.”

The event that evoked the cries of “treason, treason” — and that more than any other guaranteed Patrick Henry’s place in the pantheon of American heroes, even more so than his famous “Give me liberty, or give me death” speech a decade later — was his key role in opposing the Stamp Act that played out in the Virginia House of Burgesses in 1765.

The Stamp Act

In March of 1764, Parliament expressed its intention to impose a direct tax on the colonies by requiring that important documents be printed on “stamped” paper. News of the proposed taxes reached Virginia in the summer of 1764. The Assembly was not then in session and would not be until October 30. Although the Assembly was in recess, the Committee of Correspondence ordered Virginia’s agent in England to oppose passage of such resolutions. On November 30, 1764, a special committee of the House of Burgesses reported a draft of an official response to be sent to the King and Parliament. On December 14 of the same year, the following resolutions were adopted:

1. That an address be sent to the king asking his protection in their natural and civil rights, “Which Rights must be violated if Laws, respecting the internal Government, and Taxation of themselves, are imposed upon them by any other Power than that derived from their own Consent, by and with the Approbation of their Sovereign, or his Substitute,” and stating that as a people they had been loyal and zealous in meeting the expenses of defense of America, and that they would be willing to meet their proportion of any necessary expense for the defense of America, “as far as the Circumstances of the People, already distressed with Taxes, would admit of, provided it were left to themselves to raise it, by modes least grievous.”

2. That a memorial be sent to the House of Lords asking them as hereditary guardians of British liberty and property, “not to suffer the People of this Colony to be enslaved or oppressed by Laws respecting their internal Polity, and Taxes imposed on them in a manner that is unconstitutional.”

3. That a remonstrance be sent to the House of Commons “to assert, with decent Freedom, the Rights and Liberties of the People of this colony as British Subjects; to remonstrate that Laws for their internal Government, or Taxation, ought not to be imposed by any Power but what is delegated to their Representatives, chosen by themselves;” and to suggest that England’s proposed policy might force the Virginians to manufacture the things they now buy from England.

4. That the Committee of Correspondence answer the letter from Massachusetts, assuring that colony that the Virginia Assembly is alive to the danger to the right of self-taxation, “and that the Assembly here will omit no Measure in their Power to prevent such essential Injury from being done to the Rights and Liberties of the People.”

Despite the protests by Virginia and other colonies, Parliament passed the Stamp Act on March 22, 1765, to go into effect in the colonies beginning November 1 of that year. News of the Act’s passage reached Virginia in April 1765, but the sparks really didn’t begin flying until May, when a young, newly elected member from the county of Louisa took the ancient oath of office and set out to use all his talents to fight this latest example of British tyranny. That brash young firebrand was, of course, Patrick Henry.

According to the official Journal of the House of Burgesses, Patrick Henry took his seat on May 20, 1765. He had already achieved a modicum of notoriety thanks to his zealous advocacy on the part of Nathaniel Dandridge in the Dandridge-Littlepage contested election and to his participation in the case that came to be known as the Parson’s Cause. There is some question as to how Patrick Henry was able to be elected to the august representative body of the Old Dominion at such a young age (he was 28 at the time), but there is little question as to the impact he had on that group of men from the first days of his term in it.

On May 29, the day of his 29th birthday, Patrick Henry offered five resolutions for consideration by the House of Burgesses. Henry, in fact, offered the resolutions to the Committee of the Whole House. The House had gone into this Committee of the Whole after a motion to that effect was made by George Johnston, a member from the county of Fairfax, and seconded by Henry himself. Johnston is an important member of the dramatis personae of the drama that surrounds the Stamp Act resolutions. Sometime before offering his resolutions to the House, Patrick Henry shared them with both Johnston and John Fleming, a Burgess from Cumberland, both of whom pledged their support to Henry and to the passage of his resolutions.

In consultation with Fleming and Johnston, Henry had decided to offer not five but seven resolutions in response to the Stamp Act. Henry moved for the adoption of the seven resolutions by the Committee of the Whole, the motion was seconded by Johnston, and debate ensued.

The debate was heated and illuminated a fracture in the House between conservative Tidewater aristocrats and the more liberal and independent-minded Piedmont and backwoods representatives, of which Patrick Henry was one. Apparently, all seven amendments were finally approved by the committee and recommended to the whole House for final consideration and vote.

These seven resolutions were passed by the Committee of the Whole and sent to the House on May 30. Before any action could be taken by the whole body of the House, however, the seven resolutions were passed on to the colonial newspapers and by July were printed with various alterations as official resolutions of the Virginia House of Burgesses.

May 30 and 31 of 1765 were days of vigorous debate in the House of Burgesses. Although only 39 of the approximately 115 Burgesses were present for the debates and votes, Henry’s proposals polarized the members of the House. The older, more conservative members opposed Henry’s resolutions on the grounds that the action taken the previous year by the House of Burgesses sufficiently responded to the Stamp Act, especially in light of the fact that Parliament had yet to answer those earlier resolutions. Younger members, including Henry, argued that the taxes required under the Act would take effect in a few months and immediate action was necessary. The resolutions were debated vociferously, and on May 30 only the first five of the seven were approved, albeit by small margins, especially the fifth, which apparently passed by the narrowest of margins — a single vote. It was during the debate on this fifth and most contentious of the first five resolutions that Patrick Henry spoke words that have been passed into the lore of the early days of American discontent with English rule.

Patrick Henry rose to speak in support of his fifth resolution. Biographer William Wirt describes his stirring remarks as well as the reaction of offended Burgesses:

It was in the midst of this magnificent debate, while he was descanting on the tyranny of the obnoxious Act, that he exclaimed, in a voice of thunder, and with the look of a god, “Caesar had his Brutus — Charles the first, his Cromwell — and George the third — ” (“Treason,” cried the Speaker — “treason, treason,” echoed from every part of the House. — It was one of those trying moments which is decisive of character. — Henry faltered not an instant; but rising to a loftier attitude, and fixing on the Speaker an eye of the most determined fire, he finished his sentence with the firmest emphasis) “may profit by their example. If this be treason, make the most of it.”

Working on the Wording

Unfortunately, an actual text of Henry’s remarks does not exist — and did not exist for Wirt when he penned the above account in 1817, more than half a century after the speech was given. Yet despite the passage of time, Wirt tried to unearth the elusive truth from the scant evidence available, and his description of the speech has become a calcified part of the lore of colonial America and its great struggle for freedom and independence.

Wirt relied on accounts of the speech provided him by Thomas Jefferson, John Tyler, and Paul Carrington. Two of these, Jefferson and Tyler, purportedly sat outside the door of the House chamber while Henry and the other Burgesses debated the Stamp Act resolutions. The chief problem with all of these recollections is that they all were written many years (approximately 50 years) after the fact. Let’s examine these three briefly:

• First is the account provided by Paul Carrington, who was a contemporary member of the House of Burgesses. However, at the time Henry delivered his Stamp Act speech, Carrington had not taken his seat and therefore was not an eyewitness. Carrington provided the basis of the account of the speech described by Wirt. He informs Wirt that Henry had actually said the words, “if this be treason, make the most of it.” It is significant to remember that Carrington sent this account to Wirt in 1815, long after Henry’s reputation as a fiery patriotic orator had passed beyond the realm of debate.

• The second account is from Thomas Jefferson. Jefferson claimed to have been standing outside the door of the chamber of the House of Burgesses with John Tyler and gave the following account to Wirt: “I well remember the cry of treason, the pause of Mr. Henry at the name of George III, and the presence of mind with which he closed the sentence and baffled the charge vociferated.” This doesn’t exactly correspond with Carrington’s account, although it does not contradict it, either.

• Finally, we consider the account of John Tyler. John Tyler reportedly confirmed to Wirt the version of the story provided by Carrington, including the potent ending. Jefferson, it should be noted, was confirming the account of Tyler provided him by Wirt. It seems, therefore, that Carrington’s version of events is the common ancestor of all these accounts and the source of Wirt’s nearly mythological description of the events.

The three accounts of the event told or sent to Wirt come from men of untainted reputation. Jefferson was the President of the United States and a political enemy of Patrick Henry who would have no motive for adding air to the inflation of Henry’s popular image. Carrington was a lawyer and judge who put great stock in the precision of testimony. Tyler, a future governor of Virginia, benefited from nearly universal respect among his contemporaries. Certainly, he had no obvious reason to invent the scenario he reported nor to put words in Patrick Henry’s mouth.

While we may never know for sure what Patrick Henry said, we do know that at the end of the speech, a final, binding vote was taken by the House. As stated above, the first five of the seven resolutions passed, the fifth only barely. By this time, the narrowness of the resolutions’ passage was inconsequential, as their author had already become the voice of American resistance to English despotism.

Content with the passage of his resolutions, Henry left for home, convinced he had accomplished a great work. On May 31, the day after Henry delivered his speech and rode out of Williamsburg, the House reconsidered the resolutions and the fifth and least popular of them was rescinded, leaving only the first four as officially adopted resolutions of the Virginia House of Burgesses. The fifth resolution, the one rescinded by, as Jefferson called them, “the more timid” members of the House, was the one that read:

Resolved, Therefore that the General Assembly of this colony have the only and sole exclusive right and power to lay taxes and impositions upon the inhabitants of this colony and that every attempt to vest such power in any person or persons whatsoever other than the General Assembly aforesaid has a manifest tendency to destroy British as well as American freedom.

Patrick Henry’s fame was beyond rescission, however, and the four resolutions he penned and helped pass were quickly and thoroughly disseminated throughout America. They became the basis for similar responses in the other colonies. Patrick Henry’s gift for oratory had, only 11 days after he took the oath of office for a Burgess, guaranteed his place in the front of the minds of patriots from Massachusetts to Georgia.

By: Mike Maharrey|

Here is the first question you should ask about any proposal made by any person in the federal government.

Is this authorized by the constitution?

Not “Do I like this policy?”

Not “Do I like the guy proposing the policy?”

And not even “Is this policy a win for liberty?”

The first question should always be is this constitutional?

If it’s not – based on the original meaning of the Constitution as ratified – it shouldn’t be done.

Period.

We seem to be drifting further and further away from this standard. The left abandoned it decades ago – if it ever embraced it at all. I’ve also seen countless Republicans and conservatives turn their backs on constitutional fidelity as well because the limits on federal power stand in the way of enacting policies they like. Or simply because they want to defend “their guy” in the White House.

I am going to put this as bluntly as I can. These people are wrecking the constitutional system just as surely as the “libtards” they hate.

In an 1809 letter to the Washington Tammany Society, Thomas Jefferson wrote:

“Aware of the tendency of power to degenerate into abuse, the worthies of our country have secured its independence by the establishment of a Constitution and form of government for our nation, calculated to prevent as well as to correct abuse.”

When we erase the boundaries set around federal power by the constitution, we open the door for the government to “degenerate into abuse.” Instead of a government operating within strict limits, we end up with politicians exercising arbitrary power.

Journalist Cassandra Fairbanks made a poignant statement during an interview with Tom Woods.

“Politicians come and go, but once your freedoms are gone, they’re gone forever.

John Adams expressed a similar sentiment in a 1775 letter to his wife Abigail. In previous correspondence, she described the difficulties endured by the people of Boston and other coastal cities under the heavy hand of the British. Adams said there was one consolation.

“Cities may be rebuilt, and a People reduced to Poverty, may acquire fresh Property: But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.”

The same is true for limits on federal power. When you tear them down, you can never build them back. And the limits on federal power serve as the bulwark to protect our freedom an liberties.

It’s like a hole in a dam. Once the water starts squirting through the hole, you’ll never plug it. You’ve compromised the integrity of the dam. The hole eventually grows until the entire dam collapses.

This is true whether a politician erases boundaries to do things you hate or things you approve of. Either way, once they erase the boundaries, they’re gone forever. You can’t draw them back when somebody you don’t like takes the reins of power and tramples on your liberties. As Fairbanks said, politicians come and go. At some point, one will come who will abuse any power available to him. You can only prevent this by ensuring that the power is never available to them to begin with.

As the British were beginning to chip away at the rights of the colonists prior to the American Revolution, Adams wrote:

“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.”

He went on to assert:

“When the people give way, their deceivers, betrayers, and destroyers press upon them so fast, that there is no resisting afterwards.”

As Lord Acton asserted, power corrupts and absolute power corrupts absolutely. This was precisely why the founding generation insisted on placing absolute limits on government authority with a written Constitution. They experienced firsthand the erosion of their liberties as British parliamentary power expanded into a sphere of authority that rightly belonged to their own colonial assemblies. Adams likened it to cancer.

“The nature of the encroachment upon the American constitution is such, as to grow every day more and more encroaching. Like a cancer, it eats faster and faster every hour.”

We see the same thing happening today as federal power intrudes deeper and deeper into the sphere of authority rightly belonging to the state and the people.

In his 1791 Opinion on the Constitutionality of a National Bank, Thomas Jefferson wrote:

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”

A single step starts with neglecting that first question.

Is it constitutional?

When we fail to ask it – when we fail to hold the federal government within its limits no matter what – we open up “a boundless field of power.”

Pause for just a moment. Think of the worst politician you can imagine. Maybe it’s Alexandria Ocasio-Cortez. Maybe it’s Bernie Sanders. Maybe it’s Hillary Clinton. Maybe it’s Elizabeth Warren. Or if you were an Obama supporter, just consider Donald Trump.

Now – imagine them in possession of a boundless field of power. That’s where you’re heading when you support the current president doing whatever he pleases because you like him. Never forget, there will always be a “next guy.”