If the current version of the US Constitution, as construed and applied by the federal government (in every branch) over the past 220 years, were reduced to writing in the form of a new constitution (the original language and meaning of the US Constitution notwithstanding), would the people of the states, as they existed in 1787, ratify the constitution? I think you would have to be utterly void of understanding of the principles of a constitutional federal republic and void of the history of our country and forefathers to state that such a constitution would be ratified today. This does not even take into consideration whether the states today would ratify the constitution of 2010â€“though there would likely be several states that would choose to be bound to the tyrannical national system existing today, but most certainly not all would.
Through various ways and means, the constitution as applied in 2010 literally contradicts not only the limitations placed upon the federal government, but also the retained powers of the sovereign states and the very character and nature of the union in 1787. So, what does this mean for the posterity of those people in 1787? It means that we are living under the force of a constitution which we did not ratify or consent to. Put differently, we are living in slavery, for the very definition of slavery is a people living under the force of government against their will.
It is quite clear from the plain meaning of the US Constitution that it was ratified with certain principles and understandings at that time to protect usurpations of the federal government over the states and the people respectively. The states sent delegates to the constitutional convention from May to September 1787 to address and remedy the flaws of the Articles of Confederation. For five months those men debated, articulated and prayed over the formation of the constitution. After the proposed constitution was sent to each state for consideration, each state convened in their own conventions to discuss the principles of free government as it related to the proposed constitution and whether that state should ratify it. For each state that ratified the constitution, they expressly stated that their ratification was to â€œsecure the Blessings of Liberty to ourselves and our POSTERITY.â€
One thing is certain: those involved in the ratification of the US Constitution expected that its principles and meanings be followed by their posterity, for without its fixed meaning, the â€œsecurityâ€ of the constitution would be seriously compromised. Indeed, how can a constitution secure the blessings of liberty for posterity when the meanings and applications of the constitution change by the opinion of 9 non-elected, President-appointed, life-term judges, who are connected to and dependent upon the very system of government the constitution was intended to limit? Talk about a conflict of interest.
If our forefathers who ratified the US Constitution intended to secure the blessings of liberty for their posterity but believed that its meaning, application and limits would change over time, then the US Constitution (as applied today) falls severely short of securing the blessings of liberty for their posterity. Are the people of fifty states in 2010 bound by principles and applications that contradict those believed in 1787, especially when we have not ratified the constitution as it is forced upon us today? Americaâ€™s history proves that even a written constitution does not adequately protect the freedoms of a people. James Madison admits this much in Federalist Paper 49 before the ratification of the constitution:
â€œWill it be sufficient to mark, with precision, the boundaries of these [federal] departments, in the constitution of the government, and to trust to these parchment [constitutional] barriers against the encroaching spirit of power?â€¦[E]XPERIENCE ASSURES US, THAT THE EFFICACY OF THE PROVISION HAS BEEN GREATLY OVERRATED; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the governmentâ€¦The conclusion which I am warranted in drawing from these observations is, that a MERE DEMARCATION ON PARCHMENT OF THE CONSTITUTIONAL LIMITS OF THE SEVERAL DEPARTMENTS, IS NOT A SUFFICIENT GUARD AGAINST THOSE ENCROACHMENTS WHICH LEAD TO A TYRANNICAL CONCENTRATION OF ALL THE POWERS OF GOVERNMENT IN THE SAME HANDS.â€ (Emphasis added).
Was Madison right on or what! Madison could not be clearer: limiting the federal government by a mere piece of paper does nothing to protect freedom. What effect do words have when their intended meaning and their forming principles are not complied with? As the Federal Supreme Court repeatedly said in its earlier opinions, â€œLet the nature and objects of our Union be considered; let the great fundamental principles on which the fabric stands be examined.â€ Cohens v. Virginia, 19 U.S. 264, 423 (1821). Indeed, something more the words is necessary to protect freedom.
Unfortunately, there are some (though I cannot judge their intentions necessarily) in the US who argue that the only lawful means by which the people of the states may redress federal grievances is through the (1) election, (2) judicial or (3) amendment processes. They argue as a basis for their position that whatever the federal government passes (through Congress), executes (through the President) and upholds (through the courts) is the â€œSupreme Law of the Landâ€ and that the states are thus required by the US Constitution to submit to those laws, even if it is admitted that those laws are in fact unconstitutional and that those federal powers are exercised at the expense of the retained sovereign powers of the states and the people.
Any studier of political theory knows these advocates believe that the US Constitution places the decision of â€œwhat is constitutionalâ€ into the sole and exclusive purview of the Federal Supreme Court; that this court has the power to define not only the limits and powers of Congress and the President (not to mention its own powers) but also the power to define the lines of sovereignty of the states who created the federal government by their sovereign powers; that nine unelected, President-appointed, life-term judges possess a power equal to what the ratifiers placed into the hands of at least three-fourths of the states as mandated by the US Constitution. Without getting into the details of the fallacy of this position, which creates a dangerous oligarchic power in the federal court, destroys all principles of a free federal republic, contradicts principles of natural law, ignores the intention of the ratification documents of the states, and reduces the power of state sovereignty to mere state submission, let us consider what James Madison said in the Federalist Papers relative to what ingredients are actually required and necessary in a federal constitutional republic to protect the freedom of the people (note: James Madison was one of the proponents in the constitutional convention who actually proposed that the federal courts have a negative power over state laws contrary to the constitution, which was of course rejected in the convention):
Federalist Paper 51: â€œTO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments [of the federal government], as laid down in the Constitution? â€¦It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil:  by creating a will in the community independent of the majority â€” that is, of the society itself;  BY COMPREHENDING IN THE SOCIETY SO MANY SEPARATE DESCRIPTIONS OF CITIZENS AS WILL RENDER AN UNJUST COMBINATION OF A MAJORITY OF THE WHOLE VERY IMPROBABLE, IF NOT IMPRACTICABLE.
â€œThe first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. THE SECOND METHOD WILL BE EXEMPLIFIED IN THE FEDERAL REPUBLIC OF THE UNITED STATESâ€¦[T]HE STABILITY AND INDEPENDENCE OF SOME MEMBER OF THE GOVERNMENT, THE ONLY OTHER SECURITY, MUST BE PROPORTIONATELY INCREASED.â€ (Emphasis added)
Madison notes that the only way a minority of the people and of the states can be protected against the tyrannical actions of the majority through the federal government is that minorityâ€™s stability and independence be maintained and that minorityâ€™s stability and independence be proportionally increased with the increase of the majorityâ€™s power and influence. Thus, a mathematical equation is created: The Minorityâ€™s (e.g. the states) stability and independence increases in direct proportion to the majorityâ€™s (e.g. the federal government) attempt to circumvent the minorityâ€™s freedom. Madison continues in this line of thought:
Federalist Paper 52: â€œ[The] federal legislature will not only be restrained by its dependence on its people, as other legislative bodies are, BUT THAT IT WILL BE, MOREOVER, WATCHED AND CONTROLLED BY THE SEVERAL COLLATERAL [STATE] LEGISLATURESâ€¦With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.â€ (Emphasis added)
Madison, as nationalistic-minded as he was in 1787, cannot escape the principle of states checking federal usurpations because it was so engrained into the conscience of the people and governments. Thomas Jefferson expresses the same principle of check and balance in a federal republic system: â€œthe States should be watchful to note every material usurpation on their rights; denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary.â€ Thomas Jefferson and John P. Foley, ed., The Jeffersonian Cyclopedia, A Comprehensive Collection of the Views of Thomas Jefferson, (New York and London: Funk & Wagnalls Co., 1900), 133.
This application of state sovereignty was explained by James Madison in Federalist Paper 39, when he states, â€œ[T]he [state] authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the [federal] authority, than the [federal] authority is subject to them, within its own sphere.â€ Nothing can be more provable in American jurisprudence: sovereignty necessarily carries with it the power to defend it. Yet, even today, after seeing the usurpations of the federal government for more than 150 years, there are still those who would deny the states their power to defend sovereignty and thus the freedom of their citizens.
This can mean only one thing: these people prefer a national system of government (as certain of our founders did and as did the Tories) over a federal system of government. That may be their choice, but did our ratifiers create a national system, whereby the states gave up their right to defend their powers? The answer is most certainly, No. The evidence expressed even by those who advocated for a national government (e.g. James Madison and Alexander Hamilton) in the Federalist Papers, not to mention the vast array of freedom documents forming our country, confirms this. Yet, constitutional (de)construction, through federal courts, supposedly has created the very form of government that our ratifiers rejected.
A decision must be made in 2010: Are states politically and legally incapable of governing themselves within their borders, or do they have the power and right to defend their sovereignty retained? Are the states subject to the tyrannical definitions and lines drawn by the federal governmentâ€™s court as sole arbiter, or do they have the power to judge for themselves and defend their powers given to them by the people of that state? Are the states bound to live under a constitution that applies to them contrarily to the constitution ratified in 1787, or do they have the natural law and constitutional right to be governed by the principles of a free republic without interference from other government bodies and to perpetuate those principles for them and their posterity?
There is no neutral ground on this issue.
Those who advocate that the states MUST pass constitutional amendments to correct federal usurpations do not understand the first thing about living in freedom in a federal constitutional republic. Why should weâ€“the non-aggressorsâ€“have to go through the arduous process of getting three-fourths of the states to correct federal abuses, when the federal government does not have the power or authority to act the way it does in the first place and are contradicting the limits we have already placed upon them? This line of thinking says, the federal governmentâ€™s usurpations are valid and effective until the States pass a constitutional amendment stating otherwise. This effectively eliminates the usefulness of a written constitution, delegating only special and limited powers to a government, just as Madison explained.
How about this instead: a state can protect its own borders and powers by resisting and arresting federal tyranny, and if three-fourths of the states do not believe that state is correct in its defense of its powers, then let them pass a constitutional amendment limiting the statesâ€™ sovereignty in this regard. Giving the federal government (which our founders admitted and acknowledged would and should not comprise the vast majority of powers over the lives of the people) preference of sovereignty over the states contradicts the very structure and nature of our union in 1787, whereby the states possessed defendable concurrent power with the federal governmentâ€“states who won their complete and absolute independence through a bloody and arduous seven years war, through the infinite pains and labors of millions and the lives of thousands of men, women and children. Any person or government that would have these states give up their powers and rights, when these states did not do so, commits treason against those states.Thomas Jefferson rightly describes the tendency of human nature to suffer evils while evils are sufferable. Most of us would agree with this practical reality. Accordingly, â€œwe must be patientâ€¦and give [the federal government] time for reflection and experience of consequences.â€ Jefferson, The Jeffersonian Cyclopedia, 133. Perhaps so, but the states in America have suffered long enough. Our freedom and our posterityâ€™s freedom are at stake. If the correct, appropriate and proportional actions are not taken soon, freedom will be that much harder to secure. It is time for the people of the states to decide which constitution they want to be governed by: a free one or an enslaving one.
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 Attorneyâ€™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 Americaâ€™s foremost defenders of State sovereignty. See his website.
Copyright (c) Timothy Baldwin, 2010.