You’ll often hear the term “states’ rights” thrown around. When I use that term (and I really don’t like to) somebody will invariably respond, “States can’t have rights. Only people have rights.”
You know what? They’re right.
A geographical area can’t have rights. That’s nonsensical. And a state government can’t have rights. It has powers. So, what in the world to do we mean by “states’ rights?”
Well, it’s really just a short-hand way to talk about the rights of the people of the states.
In the American system, the people of each state are sovereign. In that sense, states constitute the 50 independent, sovereign political societies that make up the United States. It was the people of the states who ratified the Constitution and formed a union.
And of course, people do have rights.
This is a key concept to understand. The United States are not a “nation” – not in the strict sense of the word. The U.S. system is a federated republic. This is a crucial distinction that I talk about in a recent podcast. You can listen HERE.
James Madison explained the meaning of the “states” as sovereign parties to the Constitution in the Virginia Report of 1800. He was defending the Virginia Resolutions of 1798 where he asserted that the “states” ratified the Constitution. As Madison makes clear, by states he meant “the people of the states.” This is one of the foundational principles underlying the American political system.
Madison wrote:
“The other position involved in this branch of the resolution, namely, ‘that the states are parties to the Constitution or compact,’ is in the judgment of the committee, equally free from objection. It is indeed true that the term ‘States,’ is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied.
Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity.
Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance whatever different constructions of the term ‘States,’ in the resolution may have been entertained, all will at least concur in that last mentioned; because in that sense, the Constitution was submitted to the “States”: In that sense the ‘States’ ratified it; and in that sense of the term ‘States,’ they are consequently parties to the compact from which the powers of the Federal Government result.” [Emphasis added]
So, when we talk about states’ rights, we really mean the rights of the people who make up each sovereign political society in the American system – their right to establish governments, delegate powers and even to rescind those powers.
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
What did our Framers really say we must do when the federal government usurps power?
They never said, “When the federal government ignores the Constitution, amend the Constitution.”
They never said, “File a lawsuit and let federal judges decide.”
Instead, they advised two manly remedies. We’ll look at one of them – nullification – in this paper. 1
First, let’s look at the Constitution we have.
OUR FEDERAL GOVERNMENT HAS ENUMERATED POWERS ONLY
With our federal Constitution, we created a federal government. It is:
A federation of sovereign States united under a national government ONLY for those limited purposes itemized in the Constitution;
With all other powers reserved by the States or the People.
We listed every power we delegated to the federal government: Most of the powers delegated over the Country at large are listed at Article I, §8, clauses 1-16.
All our Constitution authorizes the federal government to do over the Country at large falls into four categories:
Military defense, international commerce & relations;
Immigration & naturalization;
Domestically, create a uniform commercial system: weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
With some of the amendments, secure certain civil rights.
That’s basically it! All other powers are reserved by the States or the People. Depending on how you count, Congress only has 18-21 powers over the Country at Large. 2
It is only with respect to the enumerated powers listed in the Constitution that the federal government has lawful authority.
If it’s on the list, Congress may make laws about it.
But if it’s not on the list, Congress usurps power & acts unlawfully when it interferes.
Is “education” on the list of delegated powers? Raising children? Health Care? Environmental regulation? Is most of what they do on the list? Since these are not delegated powers listed in our Constitution, the federal government usurps power and acts unlawfully when it meddles.
So then, what do we do when the federal government usurps powers not on the list?
DON’T SUBMIT TO UNCONSTITUTIONAL LAWS – NULLIFY THEM! 3
Our Framers said the federal government is our “creature” and must obey our Will as enshrined in our Constitution. And when it doesn’t, we must defend the Constitution by invoking our natural right of self-defense:
Alexander Hamilton said in Federalist No. 28 (last 5 paras): [I’m condensing]
“If the representatives of the people betray their constituents, there is no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted … [by] … State governments [which] will … afford complete security against invasions of the public liberty by the national authority…” [emphasis mine]
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [emphasis mine]
“…where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact … to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” [emphasis mine]
“… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…” [emphasis mine]
Note that Hamilton, Jefferson, and Madison said nullification is a natural right – it is NOT a “constitutional right”. Rights don’t come from the Constitution – they come from God. 4
Here is Madison’s “Report of 1799-1800 on the Virginia Resolutions”. He said under his discussion of the 3rd Resolution [I’m condensing]:
The States, in their sovereign capacity, are the parties to the constitutional compact; and are thus the final authority on whether the federal government has violated the Constitution. There can be no tribunal above the authority of the States to decide whether the compact made by them has been violated by the federal government. (p 192)
That if, when the federal government usurps power, the States don’t stop the usurpation, and thereby preserve the Constitution; there would be no relief from usurped power. This would subvert the Rights of the People as well as betray the fundamental principle of our Founding. (p195)
That the Judicial Branch is as likely to usurp as are the other two Branches. Thus, the Sovereign States have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches. (p196)
That all 3 Branches of the federal government obtain their delegated powers from the Constitution; and they may not annul the authority of the States. And if the Judicial Branch connives with other Branches in usurping powers, our Constitution will be destroyed. (p196)
So the Judicial Branch does not have final say as to the rights of the parties to the constitutional compact. Otherwise, the delegation of judicial power would annul the authority delegating it; and the concurrence of the judicial branch with the other branches in usurping powers, would subvert the Constitution forever. (p196)
In Federalist No. 46, Madison says, respecting unconstitutional acts of the federal government:
the People can refuse to cooperate with federal officers [7th para];
State officials can oppose the feds [7th para];
State Legislatures can invent legislative devices to impede & obstruct the federal government [7th para];
States can cooperate in concerted plans of resistance [8th para];
States can easily defeat the federal government’s schemes of usurpation [10th para]; and as the last resort,
States must defend themselves from the federal government – that’s why the People are armed.
So Jefferson, Hamilton and Madison tell us: When the federal government asks or directs States to do things which aren’t on the list, the proper response is, “No!”
STATE GOVERNMENTS MUST MAN UP AND PRESERVE OUR CONSTITUTION.
The Declaration of Independence says at the 7th para that the colonials “opposed with manly firmness” the King’s “invasions on the rights of the people”.
To allow terminally ill people access to experimental drugs & medical treatments despite FDA rules – drugs & medical treatments are not on the list! And the 10th Amendment didn’t stop them from usurping powers in this area.
Deny resources and assistance to the National Security Agency – spying on us is not on the list! And the 4th Amendment didn’t stop them from spying on us!
Nullify federal bans on growing hemp & marijuana. Agriculture and drugs are not on the list! And the 10th Amendment didn’t stop them from usurping powers in this area.
An Indiana Legislator filed a bill to nullify all federal EPA Regulations – environmental protection is not on the list! And the 10th Amendment didn’t stop them from usurping power over the environment.
Disarming the American People: If Congress by law, or the President by executive order, or the BATF by rule, or the supreme Court by opinion, or the federal government by UN Treaty, orders The People to turn in our arms, We must refuse to comply. The Constitution doesn’t authorize the federal government to disarm us. Gun control is not on the list! And the 2nd Amendment didn’t stop them from regulating ammunition, firearms, and firearms dealers.
Accordingly, States should pass laws directing their firearms and ammo dealers to ignore all federal dictates which pretend to restrict arms, firearms, ammo, and sales of same. The Law should also provide that the State Attorney General will defend any Citizen of the State from unlawful acts committed against him by agents of the federal government attempting to enforce unconstitutional federal dictates within the borders of the State.
Prayer in the Public Schools: When, in 1962, the US supreme Court began its war against Christianity by banning prayers in the public schools, State legislatures should have passed laws directing their public schools to ignore the unconstitutional opinion of the supreme Court. “Religion”, “prayers”, and “public schools” are not on the list of delegated powers. And the 1st Amendment didn’t stop them from “prohibiting the free exercise of religion”.
BRAVE CITIZENS MUST MAN UP ALSO.
As noted above, Madison says in Federalist No. 46 that the People can refuse to cooperate with federal officers.
Rosa Parks & Martin Luther King showed us spine 50 years ago when they nullified the State & local Jim Crow laws by refusing to obey those unconstitutional laws.
Recently in Connecticut, Citizens refused to obey an unconstitutional State law which pretends to require them to register their firearms. Art. I, §15, CT Constitution says:
“Every citizen has a right to bear arms in defense of himself and the state.”
If you are a “Citizen”, you have the right to bear arms – that’s all you need in Connecticut. So the Connecticut Statute making it a felony to possess guns which are not registered is unconstitutional as in violation of Art. I, § 15 of the State Constitution.
And The People – as the creators of the State government – are the ones to ultimately decide!
All nullification requires is a spine. And Rosa Parks & MLK showed us what spine looks like: You say, “No more!”
THE “WE LOST THE CIVIL WAR” OBJECTION TO NULLIFICATION.
Those who chant this objection seem to have in mind the “nullification crisis of 1832”. Let’s debunk it:
The southern States were agricultural. They bought manufactured goods from England. England bought southern cotton. Infant industries in the North East were producing some of the same manufactured goods as England; but because they were more expensive than the imports, they couldn’t compete.
So in 1828, Congress imposed a high tariff on the imports. The Southern States called this the “tariff of abominations”, because it made the English goods too expensive to buy; and when the Southern States stopped buying English goods, England stopped buying Southern cotton. This devastated the Southern economy.
Note that Congress has specific authority to impose tariffs on imports: Art. I, § 8, cl. 1. So the Tariff Act of 1828 was constitutional.
The nullification crisis of 1832 was brought on because S. Carolina wanted to “nullify” the Tariff Act of 1828 – a constitutional law! South Carolina developed a bizarre theory that
A State has a “constitutional right” to nullify any federal law; and
The nullification is presumed valid unless ¾ of the States say it isn’t valid.
The federal government has delegated authority to impose tariffs;
The Constitution requires that tariffs be uniform throughout the United States;
States can’t nullify tariffs authorized by the Constitution;
¼ of the States don’t have the right to dictate to ¾ of the States on matters within the powers delegated to the federal government; and
Nullification is not a constitutional right.
Near the end of his Notes, Madison quoted Thomas Jefferson’s famous statement:
“…but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact …to nullify of their own authority all assumptions of power by others within their limits …” [emphasis mine]
Madison then says:
“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [emphasis mine]
Do you see? Madison’s points are:
States may not properly nullify constitutional acts of the federal government; and
When an act of the federal government is unconstitutional, nullification is a NATURAL RIGHT – not a “constitutional right”. 5
START DOING YOUR DUTY
Your Duty is to read our Declaration of Independence and Constitution and learn The List of Enumerated Powers. You were supposed to enforce the Constitution with your votes. But instead of supporting only candidates who knew and obeyed our Constitution, you abdicated your Responsibility and voted for candidates who told you what you wanted to hear.
For the Sake of your Country and Posterity, you must also renounce cowardice and appeasement as the response to evil.
If you fail us, hell on Earth is just around the corner.
Endnotes:
1 The other Remedy is to elect faithful representatives. At the Virginia Ratifying Convention on June 20, 1788 at [223], James Madison said our Constitution depends on the people having the “virtue and intelligence to select men of virtue and wisdom” to office. In Federalist No. 44 [12th para from end], he says when Congress usurps powers, and the executive and judiciary departments go along with it,
“…a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers…” [emphasis mine]
But we keep electing ignorant phonies who know nothing about our Constitution. Why do we do this?
2THIS Chart lists the enumerated powers over the Country at Large and illustrates how Principles in our Declaration of Independence were implemented in our Constitution.
3Stop quibbling over terminology. As a People, we have lost the ability to think conceptually. When some don’t see the word, “nullification”, in a writing, they insist the writer didn’t support it. But the concept is refusal to submit to unconstitutional laws. You can call it “non-violent civil disobedience”, “that original right of self-defense”, “resistance”, “refusal to obey”, “impeding & obstructing”, “nullification”, “interposition”, or something else. I use “nullification” because the term has a distinctive meaning and was used by our beloved Thomas Jefferson. You may call broccoli “broccoli”, a “green vegetable”, a “cruciferous vegetable”, a “super food”, or “little trees”. But “broccoli” is the most precise and distinctive term. Do you see?
4 So when Michael Farris, and others who tell us a convention is the only way out, disparage nullification as an “extra-constitutional doctrine”, the proper response is: Nullification is NOT a “constitutional right or remedy” – it is that NATURAL RIGHT of self-defense which pre-dates and pre-exists the Constitution. Farris has repudiated our Founding Principles that Rights come from the Creator God, and that the purpose of government is to secure the Rights GOD gave us (Declaration of Independence, 2nd para). In Farris’ brave new world, “rights” come from the Constitution – where they are subject to the will of human governments. See, e.g., his so-called “parental rights” amendment HERE. “Child raising” is not now on the list of delegated powers – but §3 of Farris’ “parental rights” amendment would delegate power over children to the federal government. Read it.
5 Rights don’t come from the Constitution! They come from GOD! PH
Publius Huldah is a retired litigation attorney who now lives in Tennessee. Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge).
HONOLULU, Hawaii (July 17, 2019) – Last week, Hawaii Gov. David Ige caved to law enforcement pressure and vetoed a bill that would have reformed the state’s asset forfeiture laws to prohibit the state from taking property without a criminal conviction in most cases.
A coalition of six Democrats sponsored House Bill 748 (HB748). The legislation would have required prosecutors to get a criminal conviction before proceeding with the forfeiture process in most situations.
The House unanimously approved Senate amendments to HB748. The Senate previously passed the bill 25-0.
Ige vetoed the bill on July 9 and issued a 12-page veto statement that largely parroted law enforcement lobbyist talking points. Ige indicated he planned to veto the bill prior to taking action, saying that “safeguards presently exist in Hawaii’s asset forfeiture statutes that prevent the abuses cited in the bill.”
Drug Policy Forum of Hawaii executive director Carl Bergquist said, “The notion that there is no abuse of civil asset forfeiture here in Hawaii is quaint.”
The Institute for Justice calls Hawaii’s asset forfeiture laws “among the nation’s worst.” As it stands police can take people’s property without even charging them with a crime. According to Forbes, the state took in over $11.5 million in asset forfeiture proceeds between 2006 and 2015. Over 92 percent of the attorney general’s forfeiture expenditures last year—nearly $314,000—funded payroll for its Asset Forfeiture Unit.
According to Forbes:
A state audit from last summer revealed that the government forfeited property “without a corresponding criminal charge in 26 percent of the asset forfeiture cases closed” in fiscal 2015. And in another 4 percent of cases, the state forfeited property even when charges were dismissed. In other words, property was confiscated without a criminal conviction in nearly one-third of Hawaii’s forfeiture cases.
HB748 addressed the “policing for profit” motive inherent in the current asset forfeiture process by changing how forfeiture proceeds are disbursed. Under the law, proceeds after reimbursing expenses incurred by the attorney general would have been deposited in the general fund. Under current law, 25 percent of forfeiture funds go directly to police department budgets, 25 percent to prosecuting attorneys and 50 percent to the attorney general.
NECESSARY
While some people believe the Supreme Court “ended asset forfeiture,” the recent opinion in Timbs v. Indianaended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?
“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”
Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.
FEDERAL LOOPHOLE
While final passage of HB748 would have significantly reformed Hawaii’s asset forfeiture laws, it failed to address a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a 2017 policy directive issued by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).
A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.
Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.
The Hawaii legislature should close this loophole by effectively withdrawing from the federal program.
A local, county or state law enforcement agency shall not refer, transfer or otherwise relinquish possession of property seized under state law to a federal agency by way of adoption of the seized property or other means by the federal agency for the purpose of the property’s forfeiture under the federal Controlled Substances Act, Public Law 91 513-Oct. 27, 1970.under the federal Controlled Substances Act or other federal law.
In a case in which the aggregate net equity value of the property and currency seized has a value of $50,000 or less, excluding the value of contraband, a local, county or state law enforcement agency or participant in a joint task force or other multijurisdictional collaboration with the federal government (agency) shall transfer responsibility for the seized property to the state prosecuting authority for forfeiture under state law.
If the federal government prohibits the transfer of seized property and currency to the state prosecuting authority as required by paragraph (1) and instead requires the property be transferred to the federal government for forfeiture under federal law, the agency is prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal government.
As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.
Why?
We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.
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
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 is an author, writer, and award-winning reporter from Washington state. His dystopian novel The Stringersdepicting a neo-Prohibition Era in the city of Seattle is available on Amazon.
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.
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.
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 11th 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.
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.
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
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.”
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.”
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 14th 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.
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.
