by Timothy Baldwin, Esq.
From Chuck Baldwin: Note: My son, Tim, writes today’s column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a new book, published soon by Agrapha Publishing, entitled FREEDOM FOR A CHANGE
The arguments against the power of the states to arrest federal tyranny are as predictable as the sun coming up in the morning, and they are as philosophical in nature as the Declaration of Independence. One of the most commonly used arguments against such a State power is the United States Supreme Court (US S CT) dicta opinion in Marbury v. Madison in 1803, written by Chief Justice John Marshall. Before getting into the misunderstandings and misapplications of that infamous decision, we must first recognize the source and character of Marshall’s opinion. As Marshall himself admitted that the US is to be a country of “laws, not men,” we must establish that Marshall’s opinion does not equate to the “supreme law of the land” which the states and individuals are bound to obey. If our submission only requires that the US S CT speak, then we do not live as freemen, but as slaves.
Marshall was an ardent member of the Federalist Party (a pro-centralist party) and served as the Secretary of State in the pro-centralist administration of President John Adams, who appointed Marshall to the US S CT in 1801 at the “midnight” hour before Thomas Jefferson was sworn into office as President of the US. Marshall’s nationalist opinions were no secret either. Marshall believed that the US Constitution and Union were formed by the aggregate whole of the American people, and not by a compact of the states; that the Union formed “one nation, indivisible” and not a confederation of states; that State sovereignty as expressed in the Tenth Amendment equated more to a general idea than to any real applicable and relevant State power over the federal government; that the Constitution must be liberally interpreted for the sake of expanding federal powers at the expense of State sovereignty; and that the idea of State sovereignty was literally ridiculous. By the way, even most self-called conservatives today probably subscribe to these political beliefs, not even knowing the real historical facts behind such fallacious ideology.
Concerning Marshall’s philosophical belief relative to the formation of the USA, this historical fact must be admitted. It is crucially important for our discussion today in America. Historian and politically-motivated author, Edward Samuel Corwin, said of Marshall in his book, “John Marshall and the Constitution” (New Haven, CT, Yale Univ. Press, 1920), p. 34: “[Marshall's] attitude [to strengthen the national power and to curtail State legislative power] was determined not only by his sympathy for the sufferings of his former comrades in arms and by his veneration for his father and for Washington . . . but also by his military experience, which had RENDERED THE PRETENSIONS OF STATE SOVEREIGNTY RIDICULOUS IN HIS EYES.” (Emphasis added.) There is no question that Marshall had a pre-destined belief against State sovereignty in favor of national power. Corwin describes Marshall’s political belief regarding the US as a “nationalistic creed.”
So, is the nationalistic political persuasion of one man (appointed by a nationalistic President) and one court to form the basis of the true understanding of the nature and character of the USA? After all, Marshall admitted that the US is established by the rule of law, and not the rule of men. So, by Marshall’s own definition in Marbury v. Madison, a US S CT opinion does not establish law, but rather should reflect what the paramount law already is: “The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.” So, as the age-old question has gone: who determines whether or not the federal government has usurped power from the people of the states and from the State governments? The Marbury v. Madison believers are likely jumping up and down right now, raising their hands, saying, “Oh! Pick me! Pick me! I know! I know!” I can just see smirks on the faces of most ABA-law school graduates as they condemn anyone who would advocate another position to be true which is contrary to what Marshall presupposed to be true. Of course, their rationale goes as deep as a kiddy-pool and their thought process as far as an inner-city driveway.
Since 1803, the nationalists have pointed to Marshall’s declaration to conclusively say the states have no power over the opinion of the US S CT, for as Marshall states: “It is emphatically the province and duty of the judicial department to say what the law is.” From this, most American lawyers and law students come to the conclusion that there is no authority above and beyond the US S CT’s interpretation of the US Constitution. Whatever the US S CT rules becomes “settled law” and the states are completely bound–of course, unless the US S CT says something different later. I was taught this in law school and every other ABA-accredited law school in America teaches this. But a true legal study of Marbury v. Madison reveals that Marshall’s opinion (which was actually dicta) never addressed the issue of State sovereignty whatsoever. American historian, Forrest McDonald, reveals this fact in his book, “State’s Rights and the Union: Imperium in Imperio, 1776-1876.” McDonald states, “Marshall was careful not to claim that the Supreme Court was the SOLE or FINAL ARBITER of acts of Congress.” (Emphasis added.) Ibid., (Lawrence, KS, Univ. Press of Kansas, 2000), p. 56. This is, in fact, the case.
Perhaps most telling about Marshall’s silence on the issue of being the sole or final arbiter is the fact that just a few years prior to his decision, Thomas Jefferson and James Madison, through the Virginia and Kentucky Resolutions of 1798 and 1799, had advocated the State’s ability to actively nullify and resist unconstitutional actions from the federal government. Since Marshall’s opinion was mostly dicta anyway–meaning it had no relevance to the issue at hand–why not go ahead and state that the US S CT is the ONLY final arbiter of the US Constitution? But Marshall never did, and neither has any US S CT decision since Marbury v. Madison.
Thus, when someone suggests that the states possess the sovereign power to arrest federal encroachments outside of constitutionally enumerated powers, the nationalists emphatically argue their unsupported conclusion that the USA is one nation, indivisible, where the US S CT possesses the sole authority as the final arbiter on all matters politically relative to the US Constitution, and to suggest otherwise is treason!–even when the most authoritative sources have been so pointedly laid out to the contrary. Marshall’s opinions have not settled this matter, and the USA must come to grips with who we are, what we are and how we are.
What’s more, Marshall’s opinions of national expansion were conclusively derived from one main principle: that the USA is a nation formed by the whole people and not by individual states through a compact. This fact was admitted by Marshall-lover, Corwin, in 1920. Corwin clearly expresses this point as follows:
“The great principles which Marshall developed in his interpretation of the Constitution from the side of national power . . . were the following: ‘(1) THE CONSTITUTION IS AN ORDINANCE OF THE PEOPLE OF THE UNITED STATES, AND NOT A COMPACT OF THE STATES. (2) Consequently it is to be interpreted with a view to securing a beneficial use of the powers which it creates, not with the purpose of safeguarding the prerogatives of state sovereignty. (3) The Constitution was further designed . . . to be kept a commodious vehicle of the nation life . . . . (4) [The national government] is a sovereign government, both in its choice of the means by which to exercise its power and in its supremacy over all colliding or antagonistic powers. (5) The powers of Congress to regulate commerce is an exclusive power, so that the States may not intrude upon this field even though Congress has not acted. (6) The National Government and its instrumentalities are present within the States, not by the tolerance of the States, but by the supreme authority of the people of the United States.’ Of these several principles, THE FIRST IS OBVIOUSLY THE MOST IMPORTANT AND TO A GREAT EXTENT THE SOURCE OF THE OTHERS.” “John Marshall and the Constitution,” pp. 144-145. (Emphasis added.)
Corwin admits that all of Marshall’s opinions were based upon the presumption that the USA is a nation formed by the whole people as one body politic, and not by the individual, sovereign states via a compact. From this premise comes the vast expansion of federal power under the guise of constitutionality. Thus, if it were to be contrarily presumed that the USA is in fact a compact acceded to by the states, then the rules of interpretation that Marshall and subsequent US S CT justices used were wrong and require a different outcome. This fact cannot be overstated and is the source of all of the federal tyranny that many of you reading this article complain about. Thus, it behooves Americans to truly know WHAT IS THE TRUE NATURE AND CHARACTER OF OUR UNION: is it a National government formed by the whole people, or is it a compact among the states and acceded to by the states (otherwise known as a Confederacy)?
This article does not allow me to expound upon this subject in great depth, but it should be sufficient at this point at least to call into question Marshall’s presupposition regarding the nature and character of the USA by referring to some of the most authoritative sources on the subject during the formation of the US Constitution. Let us start with James Madison, who was one of the Federalist Paper authors and considered to be the Father of the US Constitution. In Federalist Paper 39, Madison examines the nature and character of the formation of the Union under the US Constitution. He admits that the US was formed by a federative (league of states) and NOT a national act. Madison proclaims:
“[T]he Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but . . . this assent and ratification is to be given by the people, NOT AS INDIVIDUALS COMPOSING ONE ENTIRE NATION, BUT AS COMPOSING THE DISTINCT AND INDEPENDENT STATES TO WHICH THEY RESPECTIVELY BELONG. It is to be the ASSENT AND RATIFICATION of the SEVERAL STATES . . . The act, therefore, establishing the Constitution, will NOT BE A NATIONAL, but a FEDERAL act.
“That it will be a federal and NOT A NATIONAL ACT . . . THE ACT OF THE PEOPLE, AS FORMING SO MANY INDEPENDENT STATES, NOT AS FORMING ONE AGGREGATE NATION, IS OBVIOUS from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS ASSENT OF THE SEVERAL STATES that are parties to it . . . [T]he new Constitution will . . . be a FEDERAL, and not a NATIONAL constitution.” (Emphasis added.)
Madison pens in the clearest of terms that the US Constitution is a compact assented to by the State sovereigns in their legal capacities as individual bodies politic, and NOT as one mass of people, forming one body politic. If this were not enough to at least raise a serious question as to what has been shoved down our throats for 150 years, consider that even Alexander Hamilton confirms that the US Constitution is a compact between the states, and NOT a national act of the whole people. He says in Federalist Paper 85:
“To its complete establishment throughout the Union, [the US Constitution] will therefore REQUIRE THE CONCURRENCE OF THIRTEEN STATES . . . [T]he necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the COMPACT . . . WE MAY SAFELY RELY ON THE DISPOSITION OF THE STATE LEGISLATURES TO ERECT BARRIERS AGAINST THE ENCROACHMENTS OF THE NATIONAL AUTHORITY.” (Emphasis added.)
Just in these two short excerpts from Founding Fathers, James Madison and Alexander Hamilton, we see that Marshall’s premise that the USA is a nation formed by the whole of the people and not by the compact of the states is seriously called into question, which, of course, calls into question all of the principles of constitutional interpretation and resulting conclusions which derive from that false premise.
An honest look at the presumption that only the US S CT has the power to interpret federal encroachments on State sovereignty will reveal that the states have more power than what has been admitted ever since Marshall took the position of chief justice of the US S CT. For as Marshall admits in Marbury v. Madison, “questions [that are] in their nature political . . . CAN NEVER BE MADE IN THIS COURT.” (Emphasis added.) By definition, issues of State sovereignty are in their nature political, just as a treaty between the USA and foreign countries regards the matter of political sovereignty. Therefore, when our states begin to assert their natural and sovereign right of self-defense against federal tyranny, each State will answer to their sovereign–the people–and NOT to the United States Supreme Court.
© 2009 Chuck Baldwin – All Rights Reserved
Gustavus Myers, in his 1912 book on the Supreme Court wrote:
“A little while before leaving office, President Adams on January 31, 1801, appointed John Marshall to be Chief Justice of the Supreme Court of the United States. Jefferson, who came from the same State as Marshall, and who was thoroughly conversant with his career and mentality, deplored the appointment as a public calamity.
For the next thirty-four years, Marshall was, in point of actual sovereignty, the ruler of the United States, and by force of decisions handed down by him has, it may be safely said, ruled, the courts [which rule the United Sates] ever since.
Almost immediately after he became Chief Justice the opportunity was presented of establishing an enduring precedent that the Supreme Court held the power of declaring laws of Congress unconstitutional….
It was emphatically, he said, the duty of the judicial department to say what the law was.
While virtually declaring what the laws of the country should be, Marshall was thus a lawless dictator, vesting in himself more power than most potentates held.”
As stated by Myers, the Supreme Court simply seized “the power declaring laws of Congress unconstitutional.â€
William James is usually given credit for the saying that “there is nothing so absurd than if you repeat something often enough, people begin to believe it.” Although such had already been said way before he ever came along. In any event I would expand upon that statement and say this — there is no one so absurd than people who believe in and espouse a political doctrine based on the fact that it has been repeated often. But you know what they say, “faith cometh by hearing, and hearing by the word of SCOTUS,” or something like that.
I found these two statements, made by the Seventh Circuit, to be quite telling.
“Many decisions of the
Supreme Court hold that only a clear statement in a
national statute can supersede a governmental body’s
own operations.â€
I guess our states should be pretty damn thankful, that these feds sometimes forget, to make it perfectly clear.
“ A state cannot displace
a contract by fiat, but it may take interests in contracts,
as in other propertyâ€
Damn, somebody got elected to the wrong government.
United States Court of Appeals
For the Seventh Circuit
Nos. 08-3032 & 08-3033
CITY OF JOLIET, ILLINOIS,
Plaintiff-Appellee,
v.
NEW WEST, L.P., and NEW BLUFF, L.P.,
Defendants-Appellants.
UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT and EVERGREEN
TERRACE TENANTS, DECIDED APRIL 9, 2009
Clearly as Federalist Paper 39 proves States should disregard the opinion of the U.S. Supreme court as an unfair arbitrator where the extent of constitutional powers of the federal government is concerned.
An arbitrator or judge is only good so long as they are actually impartial, and in this case clearly the states being the originators of the power and members of the consensual contract have the superior position not being slaves to the federal government.
Given that the union is clearly a compact between the 50 states the definers of that compact must therefore be the empowers of the same. The States having right to secede must have natural right to define the extent of those powers they ceded to the federal government to be judged by the other states as either equitable enough to merit continued union with them or to declare them no longer worthy, in their commitment to us, for them to be permitted to stand among us as our equals in union, and therefore meriting the benefits and protection of union.
Now that’s what I call a motivating comment – Monorprise
I once read a Supreme court opinion that considered the Federalist papers to be no more trustworthy, then propaganda.
Looks like I will have to research my notes, to locate that one, not that it really matters all that much, when you consider how often this Supreme court likes to contradict itself….
The values of the Framers of the Constitution must be applied in any case construing the Constitution. Inferences from the text and history of the Constitution should be given great weight in discerning the original understanding and in determining the intentions of those who ratified the constitution. The precedential value of cases and commentators tends to increase, therefore, in proportion to their proximity to the adoption of the Constitution, the Bill of Rights, or any other amendments. — Powell v. McCormack, 395 U.S. 486, 547 (1969).
The language of the Constitution cannot be interpreted safely, except where reference to common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the convention who submitted it to the ratification of conventions of the thirteen states, were born and brought up in the atmosphere of the common law and thought and spoke in its vocabulary…when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of common law, confident that they could be shortly and easily understood. — Ex Parte Grossman, 267 U.S. 87, 108.
Great. Just when I thought Michael Boldin had convinced me that the people of the several states created the federal government and NOT the states themselves, I had to go and read this article.
Wouldn’t it be correct to say that the federal government was formed by a compact among the states, each of whose peoples independently assented to it in their ratification conventions, which were composed, not of the collective people of the entire nation, but of the distinct peoples of each individual state? I know that’s very wordy and may even contain some grammatical errors, but it just seems to me that to say, “The federal government was created by the people of the several states” could be over simplifying it.
I think we would all agree that the federal government was NOT created by the aggregate whole of the American people. But just as it “behooves Americans to truly know WHAT IS THE TRUE NATURE AND CHARACTER OF OUR UNION” doesn’t the answer depend on what the true nature and character of the states are?
Derek…Abel Upshur addressed this in his book, The Federal Government, Its True Nature and Character. Published in 1868, it remains, in my opinion, one of the two finest books ever written on the nature of the federal government.
The primary purpose of his book was to refute Justice Story’s assertions, in his Commentaries, that the Constitution was formed by the people, as comprising one nation, and those same people were consolidated into a single nation.
Here is a quote of interest:
“It is apparent that the delegates to [Federal Convention] were to be appointed by the “several States,†and not by “the people of the United Statesâ€; that they were to report their proceedings to “Congress and the several legislatures,†and not to “the people of the United Statesâ€; and that their proceedings were to be part of the Constitution, only when “agreed to in Congress and confirmed by the States,†and not when confirmed by “the people of the United States.†Accordingly, delegates were, in point of fact, appointed by the States; these delegates did, in point of fact, report to Congress and the States; and Congress did, in point of fact, approve, and the States did, in point of fact, adopt, ratify and confirm the Constitution which they formed. No other agency than that of the States as such, and of, Congress, which was strictly the representative of the States, is to be discerned in any part of this whole proceeding. We may well ask, therefore, from what unknown source our author [Justice Joseph Story] derives the idea, that the Constitution was formed by “the people of the United States,†since the history of the transaction, even as he has himself detailed it, proves that “the people of the United States†did not appoint delegates to the Convention, were not represented in that body, and did not adopt and confirm its act as their own!â€
Tim, great article on Marshall. Agree with all of your thoughts and conclusions relative to the organizational document call the U.S. Constitution. When King George III signed over the sovereignty of the Crown to the thirteen separate colonies he did so under the long established rules of the common law of England. These colonies had established their own Constitutions during and after this Treaty. Nevertheless, these colonies/states then organized an entity under the organic document we speak of above. In this document, they did not relinquish ANY sovereign authority. They merely delegated to the federal government several responsibilities they felt were better executed by a ‘third’ party. If you delegate mowing the grass, repairing the roof, maintaining your swimming pool you do not cede your authority over your property to the vendor you to whom you delegate the duty. Read Natelson’s remarks to me on this subject which remark supports your statement about ABA law schools.
Bob Greenslade’s comment on Abel Upshur Parker’s book is right on point. Parker’s position was that there could not have been a “We the People…” under British Common Law.
Hi Derek
“The federal government was created by the people of the several statesâ€
Your comment about Mr. Bolden’s above statement provides me with plenty of evidence, that you personally believe his statement was an attempt to disregard, and withhold, other critical factors, that you yourself have so boldly articulated.
I on the other hand believe that there is plenty of evidence available on this tenth amendment center, itself, of which Michael is the founder, that would begrudge your own, simplistic assessments of this mans understandings.
If you would really like Mr. Bolden to be less, simplistically misunderstood, I would suggest to you, that you personally, take a good long look at all the pro individual state, and pro state legislator posts that this man has placed on this center.
Thanks JMB,
If my words came across as bold to you or anyone else, I should have chosen different words, since they were never intended to make any assertions at all, but to express honest doubts I struggle with when it comes to the idea that state governments played no part in forming the federal government. Why on earth you would conclude that I believe Mr. Boldin has ever attempted to disregard, or withhold, any critical factors surrounding this issue I have no idea. For all I know, Mr. Boldin has thought long and hard about these factors and has written about them extensively.
I haven’t yet had the opportunity to read everything Mr. Boldin has ever written or recommended that people read on the Tenth Amendment Center’s website. I have to progress through the material available one day at a time. I didn’t realize that reading all of it or most of it was a pre-requisite before a simple but open minded layperson like myself could ask an honest question or point out a perceived problem in the attempt to better understand the different positions people hold on this issue.
Anyone who read my comment carefully should have noticed that I wrote, “..it just SEEMS to me that to say, “The federal government was created by the people of the several states†COULD be over simplifying it.” As we all know, what seems to be the case is often wrong and I very well may be. My mind is far from made up. While my natural tendency is to want to embrace the idea that the federal government was created by the people of the several states and not the states themselves, I keep encountering the writings of people much more intelligent and educated than myself who take a different position. Also, there are critical factors which I have not seen addressed yet. That doesn’t mean they haven’t been addressed by someone somewhere and it certainly doesn’t mean I believe Mr. Boldin or anyone else is trying to disregard or withhold them.
I have nothing but the highest regard for Mr. Boldin’s understanding, as well as the greatest respect and gratitude for his tireless work. His understanding is far greater than mine will probably ever be. I am indebted to him for founding and maintaining this website. I also have a very high regard for other scholars who hold the position that the states did in fact create the federal government. If the words I wrote caused you or anyone else to perceive a lack of humility in me, I sincerely apologize.
Derek
“That you yourself have so boldly articulated†was actually intended by me as a compliment to you, on the latter parts of your comment, upon which you had impressed me quite adequately, but until you had expressed yourself more carefully to this first part of your comment, I had found that a proper arrestment of my own sentiments were in due order, and for this I make no apologies, nor do I accept your explanations, as to why I should not have misunderstood such an elusive statement as you had firstly expressed.…
“Great. Just when I thought Michael Boldin had convinced me that the people of the several states created the federal government and NOT the states themselves, I had to go and read this article.â€
With that said… What concerns me most are people who make a statement, and then there afterwards make the claim that it was just meant to be understood as if they were actually posing a question.
If this is not what you had intended to do, then that is fine, but do not then express to me that you really believe, that I in any way thought, that you would have to read every single post that has been presented on this center, to become yourself less naïve.
Thanks Derek
JMB,
Consider me chastened…
When I wrote, “Great. Just when I thought Michael Boldin had convinced me that the people of the several states created the federal government and NOT the states themselves, I had to go and read this article.â€, I was trying to express my personal frustration at being unable to finalize this issue in my own mind.
You see, before I can go about trying to convince my own family, friends and neighbors as to what the true nature of our union is, I have to be convinced myself.
You are correct, I did make a statement, not a question. I just disagree with your assertion that I made a bold one, that’s all. Perhaps I am naïve, but it is the truth that I would gladly read every single post that has been presented on this center if I had unlimited time and no other obligations. I don’t spend a quarter of my waking hours either reading articles posted on the 10th Amendment Center as well as comments made about them for nothing, you know. I only discovered this website and became aware of the growing 10th Amendment movement about a year ago.
As I indicated earlier, your response to my post has been a welcome lesson in humility. I accept it with gratitude! Thank you sir.
Derek
Your concerns on this subject are unequivocally important. The very fact that you have questioned, as to whether or not this federal government, and this United States Constitution, was created by the people acting as a whole nation, or reversely, this republic of our states, their free governments, and the will of the people of these states respectively. Shows me that you are not as naive as you have otherwise mentioned.
Bob Greenslade, for one example, has presented a formidable argument, one that I personally understand to have been proven correct, many times over.
Like you Derek, I have very little time available to me, but through the years I have managed to maintain many of my own personal notes.
I have spent most of my limited time, reading Supreme court decisions, and if I could have it my own way, I would expound my thoughts, upon each and every damn one of them.
The one thing that I can tell you is this, I have learned beyond any reasonable shadow of doubt, that this supreme organization of auto hypocrisy, considers our states of this republic, to be nothing more then mere stepping stones to their own quest for power.
Some excellent discussion here.
Derek – the Tenth Amendment Center – along with myself personally, officially takes the position that it was “we the people” of the several state who created the federal government to be their agent for certain delegated purposes and nothing more.
This article presents a similar view, but focuses on the compact theory of government, which has some very respectable proponents.
But, the bottom line isn’t much different. What’s most important is the question of sovereignty. Sovereignty is defined as “final authority.” Under the principles of sovereignty at the time of the founding, all powers not expressly delegated were retained. This is the essence of the 10th Amendment!
So whether the federal government was founding on a principle of a “national we the people” or a “people of the several states” (as I personally adhere to) doesn’t matter. The end result is the same – the federal government has only those powers delegated to it by the sovereign. And those powers are limited to what’s in the US Constitution.
Where I take notice is the major constitutional flaw that many supporters of limited government make – and it’s probably due to so many years of government infiltration of our education system. Many people take the position that the “states created the federal government.”
This implies that a government (not people) – the state version – is the sovereign, and has power to delegate powers to another entity, the federal government.
This version is not only seriously incorrect on both historical and constitutional grounds – but is dangerous to your liberty because it promotes the idea of making a government the ultimate sovereign….the final “decider.”