Concordia res Parvae Crescunt
by Brian Roberts
Most Americans are unaware but a Constitutional Crisis of immense proportions looms in our near future, and the early shots have already been fired. No, I’m not referring to the Obama birth certificate controversy; I’m referring to the fundamental battle for freedom and liberty based on the uniquely American experiment of Federalism. Federalism is the sharing of power between a federal government and the various state governments, and this foundation is at the very heart of the battle.
Through recent actions, the federal government has demonstrated that absolute power is its sole desire. They have ignored the message delivered through tea parties and have now directly engaged in political battles with state governments empowered by their citizenry. If “we the people†lose these battles, ALL power will centralize in Washington D.C. and the dynamics of our free country will rapidly change from a government that serves the people to a government that dictates to the people. The crisis ultimately revolves around this question:
“Who decides the constitutionality of a federal law?â€
The most visible battle centers around the unconstitutional health care bill passed in March 2010. But as this one proceeds, there are other Constitutional battles cueing up in the pipeline. Many states where the population embraces freedom have begun to draft legislation that challenges federal authority on matters that the federal government has already overstepped their authority; and, proactive states are preparing legislation in preparation for future offenses. Some examples of these battles:
Each one of these battles between states and federal governments will test the very foundation of federalism upon which our great country has prospered in relative political, economic, and individual freedom. If the pillar of Federalism is to fall, the entire house of cards of the American experiment will fall with it, and a centralized authority will be formed. Your children’s future will be sealed as servants to corrupt politicians in Washington D.C.
Will the Supreme Court uphold the Constitution?
The first question that must be resolved is “will the Supreme Court uphold the Constitution?†Almost half of the state governments are participating in a lawsuit claiming that the health care bill is unconstitutional. One of the multiple points of contention has to do with the federal governments new power to force a private citizen, under penalty of law, to purchase a product; clearly unconstitutional and something that has never been demanded by federal law before.
This is the federal court’s chance to clearly reassert the state’s constitutionally empowered jurisdiction and put the federal government back under the chains of federalism as defined by the Constitution. If they are willing and able to do this in no uncertain terms, we may still avoid a full constitutional crisis. If, on the other hand, the federal court sides with the federal legislators, then they will have missed the golden opportunity to restore stability and liberty to this country and will have placed us on a road to a government of absolute power.
Past rulings indicate that judges are, as Jefferson warned, simply people too; with political ambitions and a willingness to apply arbitrary opinions over rule-of-law. In fact, Supreme Court Justice Sotomayor, the most recent Supreme Court appointee, publicly argued the merits of rulings based on social justice over rule-of-law. Can an idea be any more dangerous to liberty than that?
In the 1942 case Wikard v. Filburn, the Supreme Court ruled that a farmer growing wheat, on his own property, for his own consumption, is subject to federal laws. The ruling was based on a laughable “commerce clause†interpretation that claimed that since the farmer was NOT participating in interstate commerce then the farmer affected interstate commerce.  This kind of circular thinking was used to steal the freedom and liberty from this farmer so that federal power might be increased. It was an impossible step of logic, but rulings like this are used as a precedent for incredible interpretations of the enumerated powers in the Constitution.
What precedent is set if the health care legislation is deemed constitutional and the federal government immediately acquires “constitutional†power to mandate private citizen purchases? No doubt, this precedent will be used to force you to purchase all kinds of products that “partner†corporations might offer. What warped definition of “liberty†encompasses this concept?
We can hope the federal courts make the correct ruling here, but this one is simply out of our hands.
Who has the final say on the constitutionality of federal laws?
If the Supreme Court rules in favor of the federal government and deems an obviously unconstitutional law to be constitutional then tensions between the states and the federal government will increase significantly. At this point, the Constitutional crisis will expose its head for all to see, and the fundamental question at the heart of it all is:
“Who decides the constitutionality of a federal law?â€
The constitution does not answer this question. The precedent is that the Supreme Court rules on these. But, what happens when “we the people†judge the Supreme Court to be part of the problem?
First, consider that the common idea is that the Supreme Court offers the final say on constitutional. This is partially true given past history and other Supreme Court rulings. But take notice that historically the Supreme Court assumed this power for itself; it was not allocated through the Constitution. This power of final authority was first considered with Marbury v. Madison in 1803 and accrued through other cases presided over by Supreme Court Justice Marshal, a well-known champion of centralized federal power. It’s easy to see the conflict of interest when a federal judicial branch deems itself to hold absolute authority over the constitutionality of federal laws and federal executive actions. Over time a federal court will become more and more emboldened to ignore the states and “we the people†and rule in favor of more centralized federal power.
It is important to realize that the Constitution is silent on this and does not provide the answer. This was intentional, because on all matters “we the people†are the final authority. Giving the federal judicial branch the supreme power of determination institutionalizes an obvious danger to freedom and liberty. This danger was described by Jefferson:
“….To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power is more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots….â€
In 1798, Jefferson and Madison authored the Virginian and Kentucky Resolutions in response to the Alien and Sedition acts. The resolution argued that unconstitutional federal bills that became federal law were null and void and of no effect. According to Jefferson and Madison, states were to be the ultimate arbiter on which laws were constitutional and which were not. By nullifying unconstitutional laws state governments need not ask permission of federal courts to govern their sovereign states.
The Crisis Resolved
So, what’s it going to be?
Freedom through decentralized government in which the people and the states determine the constitutionality of federal laws. With this choice, federalism is restored and sovereign states each govern themselves locally through rule-of-law.
Or, servitude to a centralized government in which all three federal branches work together to pass laws, enforce laws, and judge their own laws constitutional. With this choice, the Constitution and federalism are destroyed, absolute power is centralized and rule-of-men will dominate law.
This question is ultimately answered by the will of the people. We will decide and it will have immeasurable impact on our country’s future.
Brian Roberts [send him email] is the State Chapter Coordinator for the Texas Tenth Amendment Center
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.
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By the way the Bush administration had already predicted the possibility of civil unrest in the possible near future due to a declining economy, immigration, and a possible large tax increase to pay down the national debt not to mention the obvious of militias such as seen in the 90s. They have begun putting contingencies in place for martial law and even a special policing force to control this. There will be great losses if people do not stop this revolting rhetoric. Do it with your votes fine. I sense some of you do not care though. And by some I mean relatively well off white people who only want to see other white people.
My thought is if a state defects from a federal imposed mandate such as the healthcare bill, the federal government could punish it by with holding all sorts of funds. Not likely to happen unless people in those states want to be almost completely cut off from federal benefits.
I just meant that the founder's intentionally left this up to "we the people"; therefore leading to the conclusion from the article that "constitutionality" will be decided by the will of the people.
In other words "we the people" will decide whether to judge constitutionality based on the Supreme Court precedent or the nullification precedent. And if there are countering views across the country then it will eventually be determined by who blinks.
Ever hear of, tyranny of the majority? decisions made by a majority under that system would place that majority's interests so far above a dissenting individual's interest that the individual would be actively oppressed. Sometimes the majority is right. And letting it be a populist vote can lead to as many problems. Careful how you tread.
You say you're sure the founders didn't miss the "gaping hole." I assume the hole you're referring to is the question posed by the article: Who decides constitutionality?
You also say the two processes of US Supreme Court rulings on constitutionality and state nullification proceedings were not identified in the Constitution. That's true.
If the founders didn't miss this hole, and it is a GAPING hole, why did they not ID the process for deciding the issue? If they didn't miss this hole, what is the process they foresaw would be used to resolve these issues?
I don't see how researching fringe groups who act stupidly is useful. Perhaps you're using the term "Sovereign Citizen" as a term of art to refer to specific violent groups you have become aware of.
If that's the case, I have no problem with it except I wonder why you raised it at all in response to Michael's comment that the people are sovereign. Surely, you don't believe Michael is advocating the types of actions you complain about. He did not use the term 'sovereign citizen.' He only used the term 'sovereign.' You seem to be reading a lot more into his comment that is there...
As I said, SOME people may be anarchists (or stupid) but not ALL people who understand that people have rights are anarchists. It's really a very simple concept and it's odd you don't seem to understand that people such as the drafters of the Declaration were not anarchists just because they believe they have certain rights. As I said, some of us are willing to give up some of our rights for a good cause.
Further, it's not possible to list or define ALL my inalienable rights. The list is endless. The concept is rooted in freedom and flows from that. This is explained in the Declaration as "life, liberty and the pursuit of happiness." Again, it's odd you seem put off by that concept which is fundamental.
It is not 'cherry picking phrases' to refer to these rights which are defined well enough in the Declaration. Either you believe people have rights by virtue of their birth or you don't.
You write:
"The fact you claim certain inalienable rights is true."
I am quite aware that I claimed certain inalienable rights and there's no need to tell me that this fact is true. What an odd statement... I can only guess at what you're trying to convey.
Finally, you write that the constitution's purpose is to define my rights. YOU are apparently the one who needs to do more research. The constitution's purpose is to limit the powers of the federal government. It is NOT to define my rights.
I would encourage you to do more research.
See "Republic of Texas" as a good example of "sovereign citizen" group. There is nothing "republic" about that group. They create their own laws as they see fit, put out fake arrest warrants, file false liens, etc. on otherwise law abiding citizens. That my friend... is anarchy. Much like the quack that ordered all governors he didn't like to leave office within 3 days.
The fact you claim certain inalienable rights is true. Before you make a claim like that though, you have to define them. That's what the constitution is for and you can't cherry pick phrases. That is the problem with sovereign citizen movements, they are fringe.
I disagree that the 'sovereign citizen movement' is necessarily based on anarchy. It might to some people be that way but, to me, it simply recognizes the obvious fact that only people have rights and governments are artificial creations that are designed by us to work for us.
Just because I believe that I was born with certain inalienable rights does NOT mean that I am opposed to giving up some of those rights to get more security or prosperity, etc. I'll bet a lot of people feel that way if they think about it.
R.C. is correct. Might not like it, but that is the lawful, legal, and best way (within this constitutional) framework to make a change.
Chances at success? We have a better chance of a violent revolution than successful, meaningful, lack of a "power grab" constitutional convention.
This country will fall like every other country in history. The timing is a lot like the return of Jesus... unknown. The only difference in that analogy is that you can slow (or hasten) the crumbling of this country, but you can't slow or speed up the return of Jesus.
Yes, I think it's VERY unlikely a Con Con would work out well for those of us who love the current Constitution. The US Constitution is the best design anyone could expect - it's far better than I would have guessed would ever be possible. The odds of getting a BETTER one today are nil.
Like all things in nature, people are lazy and seek the path of least resistance. The average American has it so easy and lives such a high standard of life compared to historical norms, that he is unable or unwilling to see that it is gradually being lost through mismanagement and neglect.
If you tell people they have to work and save they will dismiss you as the masses have for so long with Ron Paul, for example. It's easier to believe there is a magic fairy in control who will grant all your wishes.
I could be wrong, but I suspect our best hope is to salvage the current system by re-asserting state power.
Another possibility is an Article V convention to propose Amendments to the U.S. Constitution.
Such Amendments might include:
•Restoration of the appointment of U.S. Senators by State Legislatures.
•Clarification of State Sovereignty.
•Limiting federally imposed mandates.
•Creating a balanced budget.
•Setting term limits.
Ref.: comments on FB "RCJ's WE THE PEOPLE".
So what do you think the odds are these days - that in some way 3/4 of the country support actions to LIMIT the federal government's power instead of expand it? Nearly 50% support socialized health care, for example. Any ideas or thoughts on that?
That's just what THEY want you to think, and that's what they teach people in this country. this is wrong. Sovereignty in the American system is "final authority" and the courts aren't sovereign, the politicians aren't either. it's the people.
Madison and Jefferson both warned us that if the federal government ever became the sole and exclusive arbiter of the extent of its own power (as it is today with this kind of view of the constitution) then its power would always grow, regardless of elections, courts, separations of power, or other much-vaunted parts of the American system.
Again, I agree.
The order is:
1) People (real, living entities) create the
2) States (artificial concepts to promote order) which then create the
3) Federal government (another artificial entity to enhance order, etc.)
States control the feds (nullification, e.g.) because they created them and the people control the States because the people created the States.
Yes and no. The "sovereign citizen" movement is based on anarchy. No one tells anyone what to do because you are your own government. I don't think "10th Amendment Center" advocates this, since it is about states rights. "The people" only have so much control of their own destiny without changing the government through elections or violence.
We have government for a reason. I'm an advocate of a weak centralized government, but to the extent there is no federal authority, doesn't sit well. Congress has the ability to make laws, executive branch enforces, and judicial decides whether the law is valid or not based on the constitution. That is exactly what the founders intended.
The "warnings" from people that aren't a part of the constitution aren't something I put much stock in. Although they may be predictive in nature (and I might agree with them), our representatives didn't ratify them and our country doesn't abide by them. Someone has to decide the constitutionality and that is the USSC based on the written law. If you don't like it, see paragraph one (election or violence). The only other option is to leave the country. At this point things are still slightly better here with our flaws than anywhere else I can think of. Although I'm not opposed to uprooting a family for a better country if one presents itself.
The danger certain movements have is that THEY think they are the decision makers and everyone thinks like them. THEY aren't. The majority holds the hammer because the biggest group can use the hammer at anytime they want. If any movement (including states rights and the 10th Amendment Center) is to be successful, it has to start with education (as Brian advocates from his previous articles) and persuasion to get more people in line with a particular ideology.
Good example of this? ACW, South lost because they didn't hold the hammer. Whether they were correct with their argument (excluding slavery) or not, is a moot point. They might have been constitutional all day long, but it did no good. The South lost and was brutally savaged by the Northern invaders. The winner decides the rules. Our best hope is to convince those of all kinds to get back to allowing state governments to decide. This gives you 50 places to live that are different from each other.
Unfortunately "50 places to live" doesn't guarantee more freedom. It just allows smaller groups of people to decide more for themselves. It can be just as tyrannical, just not as likely. Every state has dumb laws. The fact that "power corrupts" can just as easily happen (and sometimes more so) at the more local or state levels. At least 100 people with a mind to do something have the power to change it with smaller government. With a stronger fed though? It is like shooting a bb against a brick wall. It can destroy a wall, it just takes a lot more bb's.
As usual Brian, good article.
The first responder has my exact question in mind: Who gets to decide?
The way I understand it, it is the USSC. If you don't like their decision, ammendments need to be added to force their hand. That is where the "will of the people" comes in.
There are two historic precedents coming to a head here. First, the Supreme Court makes rulings on Constitutionality of laws and second states have historically nullified laws that they through their own determination deem unconstitutional. Neither process is identified in the Constitution and I am sure the founders of our country didn’t simply miss this gaping hole.
This article was about education. If you ask someone on the street who has authority, he will say the supreme court. Constitutionally speaking, that is simply not true. Using precedent as a guide, there are two conflicting answers to the question and the “nullification answer” requires much greater awareness.
If we give the power of ultimate interpretation to the Supreme Court then there is simply no use for nullification and interposition. None, because the Supremacy Clause clearly states that ***constitutional*** federal laws are the supreme law of the land.
Therefore, if we accept only decisions from the Supreme Court regarding Constitutionality, then when the people are at odds with the Supreme Court’s interpretation there are only 3 options left to defend liberty; all of them varying degrees of a nuclear response. Many would argue that the article V convention is not nuclear but since out Constitution only has limited amendments and this type of convention has never occurred in our history I’d say it’s pretty radical. The other two options would be secession and violent revolution. I guess subjugation to unconstitutional laws is always an option too.
That IS the essential question. And the bottom line, in my view, is that it's we the people who are in charge, and not they the government. So the practical reality is this - if the people choose to do things differently than the government wants, there's not much that's going to be done about it.
I totally agree that all power comes from the people - there's no other locus of power possible! States and governments are just ethereal ideas and do not exist in the real world. However, it's not practical for 300+ million people to be consulted on a daily basis.
So, our system was designed as a constitutional republic where agents we elect act for us. So, in theory, those representatives are 'in charge' (making decisions for us) as long as we let them stay that way. Voting for morons, liars, moral reprobates, etc. is a big problem because, as it turns out, politics attracts the worst kind of person who wants power in the worst way. We get the government we 'deserve.' (Not you and I, just the overall society.)
I suspect the Founders didn't foresee Marbury v. Madison's ruling or its effect to elevate the USSC to the top of stack since that effect completely defies the separation of powers, checks and balances, 3 equal branches system they so carefully devised. Thomas Jefferson, for example did not agree with Marshall's ruling in Marbury for the exact reasons we see today.
That's why I commented earlier that one way to limit this effect is to recognize the original view of judicial scope and power: Legal rulings only apply to the particular litigants in the case at bar. Without this view, the USSC becomes the super-legislature most people think of today. That was NOT the original idea.
We need to get back to the original ideas behind the US Constitution in order for it to work as it was designed.
For example, the 17th amendment (direct election of US Senators rather than election by state legislators) is a bad idea . It upsets the original design of the system and effectively takes those who are directly responsible for running the states out of the picture.
The 10th amendment correctly recognizes that the people are the source of all government power. If enough people decide that they are unhappy enough, then, and only then will something happen. Sadly, it takes a crisis for most people to wake up. It seems as if there is some awakening going on now and I think it's because of the current financial mess. I sure hope the awakening continues!!
Your idea is good however I do have a solution. If we can just spread the word and have everyone and I mean everyone, it is the only way it will work, change their 1099 to EXEMPT and stop the money. Following the money is the only way to instantly bring the government in line to answer to us. They have no way to earn money, loaning will be null and once the money is stopped and the federal government starts to collapse they will talk and listen. The first condition is that we reduce the income of the government to zero and close down the duplication of departments that exist in states, like education, transportation, energy health and several others. That is a real down size in government that the Republicans and Democrats say when they want money and elected positions everytime. Yet not one of them keeps their word when we say downsize we mean it. Now the buck stops here in the states and then fire the IRS and the Amendment that created it during WWII and was never, NEVER ratified by the states for approval, it was a time of national emergency and has gotten out of control. Stop the money and take the power away from the Federal Government then only give them enough to provide protection from domestic and foreign threats as The Constitution is designed. STOP THE MONEY AND GET IT BACK TO THE STATES FOR DUPLICATE SERVICES. They only dole it back to states that supported their parties. Then dis-enfranchise both parties in each state, now our country is ours again.
Great article! It raises the big issue: Who gets to decide?
It might not be such a big issue if people adopted the original view of our legal system whereby a court's ruling only impacts the parties to the lawsuit. Others are free to react to the ruling as they wish. Stare decisis has been vastly overemphasized and gives the USSC far too much power.
For example, as the head of the Executive branch, the President may choose not to enforce a law that s/he feels is unconstitutional. This is part of the 'checks and balances' of our three, EQUAL branches of government. That idea has been lost and leaves us with 9, unelected, lifetime federal drones running the country. Bad idea!
Just finally got a chance to read this. I am thankful that Marbury v Madison is being brought up and how the Marshall Court decided that they could grant themselves power. I highly recommend the book: Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court by Edward Lazarus. I found it extremely informative as it provides much detail on this case and how it re-shaped the whole system essentially changing everything.
It is high time WE the PEOPLE stood up and that the states regain their proper rolls in this republic. Our rights are God given not government given and we are at risk of losing them all if we let this fiasco continue much longer.
Tenther Radio!
"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."
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