by Timothy Baldwin
During the Constitutional Convention, from May to September 1787, delegates from the colonies were to gather together for the express purpose of amending the Articles of Confederation to form a â€œmore perfect unionâ€ (NOT a completely different union!). The men that met in Philadelphia, Pennsylvania, were under direct and limited orders from their states to attend the Federal Convention explicitly to preserve the federation and State rights and to correct the errors of the existing federal government for the limited purposes of handling foreign affairs, commerce among the states and common defense.
Yet, during that private and secret convention, there were men who proposed that a national system be established in place of their current federal system, destroying State sovereignty in direct contradiction to their orders. (Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, vol. 1, 2nd ed., [Philadelphia, PA, JB Lippincott, 1891], 121) Of course, the public was not aware of this fact until years after the ratification of the Constitution, when the notes taken in the convention were printed and released to the public.
Indeed, those who proposed such a national system of government (e.g., Alexander Hamilton, John Dickinson and James Madison) would not have the people of the states aware of this proposal for fear of outright rejection of the Constitution and for fear that they would remove their delegates from the convention altogether, giving no chance of success for the ratification of a new Constitution. It was hush-hush for good reason. In fact, Alexander Hamilton was so tactful on the subject that he did not even present his nationalistic notions as a constitutional proposal, but only as his ideas of what America should be. (Ibid., 123) Despite these proposals, in the end, it was a federalist system that prevailedâ€“a union of states and not a union of people, whereby the states retained complete and absolute sovereignty over all matters not delegated to the federal government. The states were indeed co-equal with the federal government. So, what was it about the national system that was rejected during the convention?
The most notable proposal reveals the underlying foundation for all national principles: that is, the national government possesses superior sovereignty to force the states to submit to the laws made by the national government and to negate any State law it deems repugnant to the articles of union. This supreme power was proposed (but rejected) as follows during the Federal Convention: the to-be national government should possess the power to â€œnegative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of union, or any treaties subsisting under the authority of the Union.â€ (Ibid., 207) Hamilton, and his like, would have loved it had this national principle of supreme sovereignty been accepted by the delegates. Thankfully, it was not accepted. In fact, as the convention progressed, what became apparent to those who advocated for this national form of government is that their ideas would never be accepted and ratified.
History proves with absolute certainty that a national government and its assuming principles were rejected, not only by the framers of the US Constitution, but also by those who sent delegates to the Federal Convention and who ratified the US Constitution at their State conventions. More important than the limited powers of the federal government, the people of the states rejected the nationalist doctrine that the federal government had the power to negate State laws that it deemed contrary to the Constitution. (John Taylor, New Views of the Constitution of the United States, [Washington DC, 1823], 15).
So, how is it that while the people of the states expressly forbade the federal government from interfering with the internal affairs of the states the federal government can now control nearly every facet of life within the states and the states supposedly can do absolutely nothing about it? Most attorneys who think they know so much about Americaâ€™s history and the US Constitution would say, â€œThe United States Supreme Court is given the power to say what the Constitution means and that over the years, they have interpreted Congressâ€™ power to reach the internal affairs of a State.â€ It is the â€œliving Constitutionâ€ idea, simultaneously coupled with nationalistic doctrine, which proclaims that the actual meaning of the Constitution can change over time, and that such change is constitutional and does not deny the people their freedom protected under the compact of the Constitution.
Interestingly, the â€œliving Constitutionâ€ idea is only used when it promotes a constitutional â€œconstructionâ€ that expands and empowers the federal government and neuters the State governments. The â€œliving Constitutionâ€ idea (advanced by the British Parliament) in fact is the very notion that caused Americaâ€™s War for Independence. (Claude Halstead Van Tyne, The Causes of the War of Independence, Volume 1, [Boston, MA: Houghton Mifflin Company, 1922], 235, 237)
The ludicrous proposition of a â€œliving Constitutionâ€ begs numerous critical questions involving the very foundation of a free society, not the least of which is this: If the meaning of the Constitution can change over time, why did the Constitutionâ€™s framers spend nearly five months debating which words should be placed in the Constitution? More than that, why would the framers be so emotionally, mentally, intellectually and intensely involved in the question of what form of government we will have: national or federal?
How can it be that the judiciary branch of the federal government, which is not even politically responsible to the people or the states whatsoever (and only ever so slightly to the other federal branches), has the sole and complete power to say that the states have no power to interpret and comport to the US Constitution as they deem constitutional, when that same power was expressly rejected to the national government during the convention? After all, Hamilton and Madison both admit throughout the federalist papers that the states have complete and absolute sovereignty regarding the powers retained by them and granted to them by the people of each State, just as any foreign nation would. Both Hamilton and Madison admit that the only check on power is another independent power and thus, the only real power that could check federal power was State power. They even expected that the states would use their sovereign and independent power to the point of being the voice and, if necessary, the â€œARMâ€ of the people to implement a common defense against the federal government.
Both Hamilton and Madison admit that the federal government can never force the states out of existence and can never strip them of their rights and powers possessed prior to the ratification of the US Constitution, except as delegated to the federal government. They even refer to the statesâ€™ right of self-defense in this regard to resist federal tyranny. Was this mere â€œbait and switchâ€ rhetoric to get the people of the states to ratify what they thought was a pure federal system? How can the states possess the absolute sovereign power to check federal tyranny when they are bound to submit to the federal governmentâ€™s interpretation of the Constitution? The two positions are necessarily incompatible with each other. To say that you have power, so long as I say you have power is to deny your power altogether.
Quite obviously, in no place does the Constitution grant to the federal government (in any branch) superior sovereignty over the states. Instead, the Constitution requires ALL parties to it (State and federal) to comply with the Constitution, as it is the supreme law of the land. All the framers agreed that federal government and federal law do not equal the â€œsupreme law of the land.â€ Both the federal government and the federal laws are bound by the terms to which all must comply. Thus, all parties must be watching each other to ensure each is complying with the compact. And as was admitted by even the most ardent nationalist (i.e., Daniel Webster) of Americaâ€™s earlier history, each party to a COMPACT has the sole right to determine whether the other party has complied with the compact.
But over the years, a political idea contrary to our original federal system was adoptedâ€“not through open discussion and consent, but by fraud and force. This position states that whatever the federal judiciary rules equates to the â€œsupreme law of the landâ€ and the states must comply therewith, regardless of whether the federal law usurps the power the states retained under the Constitution. What the nationalists were unable to obtain through honest and open debate during the conventions they have obtained through the erroneously construed â€œsupremacyâ€ clause of the Constitution.
What the federal government was denied through constitutional debate and ratification the nationalists have procured through masquerade, subterfuge and trickery. America has been duped into accepting a national government, not by interpolation, but by deceptive â€œconstruction.â€ If the federal government has the power to usurp its powers without a countermanding power checking its encroachments, where is the genius in our framersâ€™ form of government?
Was this form of government the form that best secured our happiness and freedom? And if our framers in fact bequeathed to us a federal system, whereby the states were co-equal with the federal government in sovereignty and power regarding their powers, then where comes the notion that we now have a national system, whereby the states are mere corporate branches of the federal government? Where were the constitutional debates on that subject? Where was the surrendering of sovereignty by the states, which can only be done through expressed and voluntary consent? Where was the right of the people to establish the form of government most likely to effect their safety and happiness? Do we just accept the fact that our form of government can change over time without express and legal action being taken to effect that change? God forbid!
In 1776, the colonies rejected the European (nationalist) form of government. In the UNITED STATES, the people of the states ardently believed that their freedoms would be best protected if each of their agents (State and federal) possessed equal power to check the other against encroachments of power and freedom. This was the â€œmore perfect unionâ€ of the US Constitution. How could the founders have suggested that the US Constitution was a â€œmore perfect unionâ€ as a nationalist system, when the nationalist system was the very system they seceded from and rejected? That is nonsense!
Ironically, the very document that was designed to perpetuate these principles of federalism has in fact been de-constructed to destroy those same principles, leaving us with the very form of government that our framers and the Constitutionâ€™s ratifiers rejected. In the end, if the people of the states do not once again reject this national form of government and assert and defend the principles of federalismâ€“the principles upon which America was foundedâ€“then this supposed federal power of constitutional â€œconstructionâ€ will in fact be our freedomâ€™s destruction.
Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of America’s foremost defenders of State sovereignty. See his blog.