by Steve Palmer, Pennsylvania Tenth Amendment Center
Tenth Amendment: 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.
As has been noted in the Texas Law Review, the Tenth Amendment is a rule of construction. This simple text conveys a great deal of information, telling us how to interpret the entirety of the Constitution.
One important question, covered extensively by Dr. Thomas E. Woods, Jr. in his book, Nullification, is the question of who gets to decide what the Constitution means? Conventional wisdom has it that the Supreme Court is the ultimate arbiter? Our own author, Andy Quesnelle, has also addressed this question here. This topic has also received extensive coverage elsewhere.
Many people who claim that the States also have the ability to interpret the Constitution for themselves argue from the perspective that it would be a conflict of interest for the federal government to have exclusive authority to exercise that power when it is also a contestant. Others focus on the fact that the Constitution was created by the states, so it is logically necessary that the states’ powers are superior to those of their creation, the federal government. In this essay, we will support those arguments with a third plank, what the Constitution actually says.  It is ironic that most commentators I’ve read have not applied the Tenth Amendment to this question.
Using the knowledge that the Tenth Amendment is a rule of construction, we can use it to create a “four square†table of allowed and prohibited powers to graphically show how the powers and levels of government were intended to fit together. For each level of government, State and federal, there are exactly two possibilities: either that level of government is allowed to exercise a power or it is prohibited from exercising a power. Conveniently, there are no other possibilities, so our table can be simple. Any power that can be imagined can be populated into our four cell table.
Table 1: Allowed and Prohibited Powers
*assuming 14th amendment incorporation of the Bill of Rights
The red cell, containing powers which are allowed to the States, but prohibited to the federal government, is the domain of the Tenth Amendment. This particular table is necessarily incomplete, but it will suffice for today’s purpose. It could be extended to describe, in detail, all powers which are described by the Constitution.
The essential feature, for now, is that almost everything was intended to fall in the red, “U.S. Prohibited / State Allowed†quadrant of the table, “Everything elseâ€.  As Madison wrote, in Federalist #45,
“The powers delegated by the proposed Constitution to the federal government, are few and defined[Row 1]. Those which are to remain in the State governments are numerous and indefinite[Row 2, Column 1]. The former [Row 1] 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 [Row 2, Column 1] 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. “
Having a table like this may make it easier for some people to reason about the Constitution. For example, a section of the Constitution which is often raised against the power of states to resist an unconstitutional law is the “supremacy clauseâ€. In Article 6 of the Constitution, this clause says,
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
“Main stream†thinkers often refer to this clause, claiming federal supremacy, to justify their opposition.
Let us examine that claim by using our table of allowed and prohibited powers to break down the first part of the supremacy clause and fit these objects into our table of powers.
- This Constitution – includes all four quadrants of our table.
- The Laws of the United States which shall be made in Pursuance thereof – Can only refer to the “U.S. Allowed” row of the table, since the Constitution itself fences off the “U.S. Prohibited” row.
- “and all Treaties made, or which shall be made, under the Authority of the United States” – is even further focused in the “U.S. Allowed”, “State Prohibited” quadrant, where treaties are placed by the Constitution.
So the preeminent object of the supremacy clause must be, “This Constitutionâ€, since it encompasses the more limited scopes of the following objects. If an ostensible Treaty or a Law of the United States falls in the 2nd row of the table, then “This Constitution†takes precedence and the treaty or law is invalid.  To some, this might seem obvious, but the persistent and wide spread misunderstanding on this point makes it clear that we need to examine it in great detail in order to be able to persuade others.
If a purported U.S. Law is a usurpation, infringing on a fundamental right or legislating on a topic which has not been delegated to the United States, then it falls in the second row of our table. Therefore, the unconstitutional nature of the law overrides, and the supremacy clause says that the judges in every State must uphold the Constitution.
In short, when applying the Supremacy clause to legislation, it only applies to the balance of power between the federal government and a state if the power being exercised falls in the “U.S. Permitted & State Permitted” cell of the table. In that case, and only in that case, the constitution says the federal law is supreme.
Now, we get to the main question of this essay, “Who decides whether a law contradicts the Constitution� The supremacy clause, the Tenth Amendment and our table of allowed and prohibited powers help us to answer this question.
First, with regards to the supremacy clause, note that the terminal portion of the supremacy clause does not limit its binding to federal judges. It says, “the Judges in every Stateâ€. Referring back to our table of powers, we see that the judicial power is a shared power. The State and federal governments are both allowed to exercise judicial power under the Constitution. The supremacy clause, therefore, tells us that state and federal judges are both bound by “this Constitutionâ€, “the Laws of the United States which shall be made in pursuance thereof†and “all Treaties…â€.
It should now be obvious that the supremacy clause allows, and in fact requires, both State and federal judges to evaluate whether laws are Constitutional.
Further, let us note that nowhere in the Constitution is the power to interpret the Constitution prohibited to the states. Since the power to interpret the Constitution is not prohibited to the states, if we apply the Tenth Amendment, this power can only be in the “State Allowed†column of our table. Either it is a shared power with the federal government or it is the sole province of the States. An argument can be made that this power is included in the judicial powers, and thus shared by both levels of government, but it is clear that there is no Constitutional claim that the states may not exercise this power.
The “main stream†understanding in our times continues to be that only the federal government, in the form of the Supreme Court, is entitled to declare a law to be unconstitutional.  Many articles have been written describing the conflict of interest inherent in that viewpoint. Others have been written detailing historical objections. This article used logical arguments based on the Constitution itself to prove the fallacy of that idea.
There is nothing in the Constitution, including the supremacy clause, which prohibits States from interpreting the Constitution for themselves. In fact, the supremacy clause requires the federal and state judiciary to do just that.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
Thanks for a thought-provoking article!
The question of which body has the power to determine constitutionality is not specifically addressed in the US Constitution. Marbury v. Madison (1803) has been cited forever for the proposition that the federal courts have this power ("judicial review") and the Supreme Court, being the 'highest' federal court, has the ultimate decision.
Therefore, if you're going to explore this issue, you need to address Marbury. If you study Marbury, however, you'll find that it was wrongly decided (on many levels) and anything the opinion says about the federal courts' power to address constitutionality is dicta (not necessary to the holding and thus not binding).
(For a VERY brief idea of why the 'judicial review' part of Marbury is dicta, consider that the opinion held that Marbury was entitled to the relief he sought because the fact that his commission was not delivered in time was a ministerial detail that did not void the presidential appointment. Broad statements from the court about judicial review were unnecessary and not binding. Such dicta would have been avoided by a more-competent jurist.)
Besides all the technical, legal, logical, practical and ethical problems with Marbury, the OBVIOUS problem with the way Marbury has been used is the conflict of interest it presents where a branch of the federal government gets to decide the extent of the power of the federal government. This is Tom Woods' big point.
With such an important question as determining constitutionality, it is simply not acceptable to have such an unfair solution. That's why I believe it was a mistake for the Founders to not address this issue specifically.
Because of the idea of "binding precedent" (as Andy Quesnelle pointed out in the article referenced above and EXACTLY as Yates predicted in the Anti-Federalist papers), once you allow the federal courts to determine constitutionality, you end up with an all-powerful federal government rather than a LIMITED federal government. This was CLEARLY NOT the intent of the Constitution. Therefore, any holding that results in an all-powerful federal government is patently incorrect. (Again, contrary to what you've been told, this was NOT the holding in Marbury; this was dicta and therefore not binding.)
Since there is no specific solution in the Constitution and since all powers not delegated to the feds remain with the States and the People, the power to decide constitutionality remains with the States and the People and NOT with the feds. (There are other arguments to be made on this issue but they are left for another day…)
One possible solution for the States, therefore, is nullification.
Nullification has the potential for problems, of course, But, no solution is ever perfect and nullification is much more in keeping with the original intent of the Constitution. Again, this is why this issue should have been addressed specifically in the Constitution.
Theodore says it best:
“It is the people, and not the judges, who are entitled to say what their constitution means, for the constitution is theirs, it belongs to them and not to their servants in office — any other theory is incompatible with the foundation principles of our government.”
By, Theodore Roosevelt
I would have agree to a point. I believe that T. Roselvelt was a progressive so when they talk about the people constitution they usually wanted the democratic process to decide what it means which meant exploiting the masses in order to get the result they wanted.
The people write the constitution but they do not decide cases on it. That is the role of the judges and they have to be immune from public pressure in order to do what they are suppose to do. I think if a judge gets out of line then their should be some recall in place but that recall should be difficult since the public could put enough pressure on them to go against what the constitution means.
I'm not saying the masses are stupid but democracy has its perils and the point of a constitutional government is a government of law and not of men. The law being the constitution itself is the supreme authority in those systems. Its not the will of the people in office or the will of the people themselves but the authority of that law that determines everything. The people can alter the constitution when they don't like it but as long as that document is the supreme authority then liberty is secured.
I believe the founder said the law is king but were referring to the constitution since it says it is the supreme law of the land.
Why not? Its no different than any other law that can be ignored since, in both cases, the only way they can enforce it is by the force of government.
It is very dificult to contend that the Constitution itself is "unconstitutional", there are some conspiracy theorys which are pretty convincing (about the ratification of it), but after all these years challenging on proceedural grounds seems kind of weak. The one thing that can be done (IMO) is to nullify the unconstitutional items they spend their tax revenue on, somewhere around 60-80 percent of what they do is unconstitutional. Some sort of "Federal Tax Escrow Acct." could be set up to collect the tax money intended for the federal govt., and give the feds the revenue for only the Constitutional projects. The rest could be used for state projects, or returned to the taxpayers.
It would be breaking the law to do so but without a mechanism to enforce the law then a state or individual can do whatever they want. A court decision against a state can only be enforce if the state decides to comply with the court decision. The court has no power to remove a government official so it can't enforce anything it decides and without enforcement it becomes a choice for the state to comply.
While in actuality you are correct (a state could do this), normally when I refer to a "nullification" I am speaking specifically of a state passing laws to cancel a law which is unconstitutional, canceling a law which is fully constitutional would be something else not "nullification". It would also be a violation of the Supremacy clause which would (in principle) compel the executive branch into "enforcing" the Constitution. weather that be thru military action, or something else is anyone's guess.
I am not saying that 16th is unconstitutional but it definitely violates the spirit of the original document. After all, how can the same document set up a legal framework for a limited government and at the same time give that government an unlimited source of revenue and therefore unlimited power? Seems to me the Constitution contradicts itself on this one.
I agree, but once something is an amendment, it is for all intents, and purposes part of the constitution, and in common law it is actually superior to the original document. A sad quandary that we put ourselves in when we ratified that one…
I would agree with TextualistDude that this issue should have been addressed in the Constitution more explicitly. IMO, the Tenth Amendment provides the power for states to interpose when Congress oversteps their bounds. Obviously, relying on the federal courts to protect states from federal tyranny has gotten us nowhere as there seems to be no end to imagining powers never intended and stretching the meaning of clauses beyond original intent. Insisting states may not nullify is like telling a homeowner he may not prevent strangers from entering. If he doesn't protect himself, who will?
The thing is, however, that under Article III sections 1 and 2, ultimate appellate authority for ANY case "arising under this Constitution" is always the U.S. Supreme Court. So although the state courts may have the authority (according to this line of reasoning) to rule on the constitutionality of a law enacted by the United States, i.e. by Congress in the manner prescribed in Article I, it's hard to get around the meaning of the words "all cases", and to deny the Supreme Court its position as the court of ultimate appeals.
You're only looking at this as a matter of contested law, wherein the courts are left to arbitrate. But as free standing states, the state legislatures have the authority to legislate to protect their citizens from federal abuses. In other words, they have a duty to interpose–through legislation–when the Constitution has been violated and they do not need permission from the courts to do this. A proactive approach as opposed to a passive victims approach. As long as the state is within Constitutional limits, they are within their rights and have a duty to do this.
Chi
To me, you've hit on the main argument Marshall should have used in Marbury: Article III and "all Cases arising under" the Constitution. I still don't believe it is persuasive, though.
"Cases" refers to disputes between parties whereas the question of constitutionality itself is not a 'case' between parties.
Also, the question of constitutionality does not "arise under" the Constitution because the Constitution has no express method for determining constitutionality. So, that question is external to the Constitution and does not "arise under" it.
Again, this is why the issue should have been explicitly addressed.
I'm not really sure about this but I've been circulating this theory in my head for quite a few months now and wonder if that was only meant to apply to certain cases specifically stated in that section and not to all cases involving the constitution. The section starts out with all cases involving the constitution, treaties, and laws of the United States but then list specific cases where the federal courts have jurisdiction. I wonder if they meant cases that arise under the constitution, treaties, and laws for those specific cases only and not to every case in existence. If my theory is true then it would have profound implications on the power of the supreme court itself since it is limited to those specific cases listed in that section.
You must remember though that state court systems and federal court systems are independent of each other. The only time the federal court has appellate jurisdiction is when it is a case arising under the constitution but this does not mean their is a direct connection between the two court system. It is possible for one court system to feel a law is constitutional yet the federal court says otherwise but since that case may never reach the federal court system that courts judgement will remain.
Also, what if a state decided to act against the judgment of the supreme court? Does the supreme court have any power to order arrest, call for an army, or enforce its judgement in anyway? The answer is no so a state can simply ignore then court when it wants to since it has no enforcement power whatsoever.
I just checked that section and noticed that it says that appeliate jurisdiction only applies to the federal courts themselves because in that same paragraph it states an exception where the supreme court is the original jurisdiction such as cases involving ambassadors. I believe it is saying that lower federal courts can appeal their cases to the supreme court but the supreme court shall have original jurisdiction for cases involving ambassadors.
Its not stating a court case in a state court system can appeal it to the federal courts. In order for the federal courts to intercede in a state court system they have to start a new court case in one of the lower courts. From there it can be appealed to the supreme court. A case in the state court system can't be appealed direct to the federal court system. It has to be started anew within the federal court system.
In Federalist Essay No. 26, Alexander Hamilton stated:
“[T]he State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government…will be ready enough, if anything improper appears, to sound the alarm to the people, and not only be the VOICE, but if necessary, the ARM of their discontent.”
And in Essay No. 28 he said:
“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”
Melancton Smith, in the New York State Ratifying Convention of 1788 stated:
“The state constitutions should be the guardians of our domestic rights and interests, and should be both the support and the check of the federal government.”
Gilbert Livingston would add:
“[I] conceive the state governments are necessary as the barrier between the people’s liberties and any invasion which may be attempted on them by the general government.”
The only question is how are the States to perform this function when the federal government usurps power and violates the Constitution? Since these comments were made almost 4 years before the adoption of the 10th Amendment, it is beyond doubt that the Founders had a method in mind separate from the 10th Amendment. Therefore, we must look beyond the 10th Amendment for the primary answer.
In my opinion, Article VII gives me the answer to the question.
BG
Can you briefly explain your thinking about Article VII? I'm guessing you're saying that the States are in charge because they controlled ratification.
If that's your thinking, I agree. But, that doesn't give us a specific method for determining constitutionality does it?
TDude-as you know-
Article VII states:
"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
done in Convention by the Unanimous Consent of the States present…In Witness whereof We have hereunto subscribed our Names."
The words “between the States” were added by a special motion in the Federal [Constitutional] Convention of 1787 “to confine the operation of the government to those States ratifying it.”
Thus, we have a Constitution-
between States-
that required Consent of States-
and the operation of the government being established would be confined to States.
Article V confirms this because the Constitution can only be amended by a vote of States.
This is further confirmed by Alexander Hamilton in Federalist Essay No. 83:
"The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer." [Caps not added]
Since all power is vested in the people, the people are the people of the several States. We are looking at a contract or compact between the several people—as States. We are not looking at a contract between all the people—as comprising one nation. Thus, the people of the several States, acting as States and through States, established a federal government to act collectively for the States they established. The federal government is not a party to the compact but the result of the compact. The federal government is simply an agent created and empowered by a compact or contract.
If 13 separate families draft a contract and create an agent to perform limited functions for all 13 families, who decides when the agent has violated the terms of the agreement? The principles to the contract who drafted and ratified the contract or the agent created and empowered by the contract?
Since you are an attorney, I think I know how you will respond to this question.
My bad. Typo.
"Since all power is vested in the people, the people are the people of the several States. We are looking at a contract or compact between the several people—as States."
Typo-s/b-…"between the people—as States."
Excellent reply, Bob. This is why I love coming to this site. I learn so much from brilliant thinkers.
BG
Yep, you got it concerning the power of States. That's exactly how I see it and frankly, it stuns me that Marshall got away with his view that it is not a compact of several States but a united, collective nation of all people. It's simply impossible to read the Constitution carefully and reach that conclusion. Letting Marshall make the most important decision in the history of the US (Marbury) was one BIG mistake!
In your hypothetical of principal/agent, neither the principal nor the agent would normally decide disputes. The agreement might provide a method for dispute resolution (arbitration, mediation, etc.). Absent that, a court of competent jurisdiction would decide. I.E, a neutral third party would decide.
This is why I said the issue of determining constitutionality should have been addressed in the Constitution so we would have a way to make these decisions. There is no neutral third party to make such decisions. (That's partly where the principal/agent analogy breaks down.)
Further, such an agreement would normally provide a withdrawal provision so parties could withdraw from the agreement. Short of that, withdrawal is always an option but may result in damages under various legal theories.
This is analogous to secession and it's why secession is an obvious option but it might subject the withdrawing state(s) to a claim for damages. Again, the Constitution did not make an express provision for secession so the issue of damages would have to be resolved somehow. (Lincoln got it wrong!)
Finally, I would have liked to have seen a termination clause in the Constitution so the union could be dissolved. This is like a pre-nup… No one about to get married wants to talk about what happens in the potential divorce, so this is never a popular topic and is rarely addressed. But, it should have been…
The bottom line to me is that there is an anger brewing in this land and I'm afraid it could boil out in violence if we don't start to address the legitimate and deep concerns of people such as I who believe the Constitution has been blatantly ignored and we are being driven into 3rd world status with a small group of 'haves' and a very large group of 'have nots.'
Nullification provides a release valve for this pressure and a way to move us away from complete breakdown.
WTF is that thing on the X supposed to be? It looks like that knit cap worn by Waldo, of "Where is?" fame. Or maybe the X is disintegrating from some kind of invisible ray. Really can't tell.
Honest, I have no idea, and it looks pretty stupid. Can somebody explain what it is?
Like your site, otherwise.
If, as the tenth says, powers are delegated and not owned by the federal government, then can any amendments from the point of the civil war be constitutional, particularly as the powers were forcibly extracted and not delegated? For one to delegate one must have the right to not delegate, or even withdraw that which was delegated, or any power exercised is then but a grant or privilege. I am probably more radical than most in this, but to contend for true 10th amendment enforcement, we must go back to that point where the right of owning powers that would then be or not be delegated.
I say this to say that the 16th cannot be in effect as the US constitution has not been in effect since Lincoln and the Reconstruction times.
As an aside, even were the 16th in effect income is that which comes in from a source other than the person's labors, and cannot be direct taxation as those clauses regarding direct taxation would have to be removed to allow for the type of taxing that is imposed on Americans.
Unless I'm reading him wrong, it sounds to me like BG is suggesting the principles (or the States) would have sole discretion to determine when the agent violated the terms of the agreement (the Constitution) whereas you are suggesting a third party needs to be brought in to resolve the dispute. Am I wrong?
TDude-you wrote:
“In your hypothetical of principal/agent, neither the principal nor the agent would normally decide disputes.”
Let’s look at the Kentucky and Virginia Resolutions of 1798.
Kentucky-written by Jefferson-
“[W]hensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that 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 to 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.”
Virginia-analysis written by Madison:
“The resolution having taken this view of the Federal compact, proceeds to infer, ‘that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and are duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.’
It appears, to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts- that, where resort can be had to no tribunal superior to the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States, was framed by the sanction of the States, given each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows that there can be to tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
Your thoughts?
TDude-you also wrote:
“Further, such an agreement would normally provide a withdrawal provision so parties could withdraw from the agreement….
This is analogous to secession …. Again, the Constitution did not make an express provision for secession ….
Finally, I would have liked to have seen a termination clause in the Constitution so the union could be dissolved.”
How do you square this with the transition from the Articles of Confederation to the Constitution?
The Articles of Confederation:
1-Established a Union or Confederation between the several States.
2-In numerous clauses the Union between the States was described as perpetual…there was no withdrawal or termination provision.
3-The Articles were referred to as the federal constitution by the States.
4-The Articles established a federal government.
The Constitution, in spite of the above:
1-Dissolved or terminated the existing perpetual Union or Confederation between the several States and established a new Union between the States.
2-Established a new federal Constitution.
3-Established a new federal government.
Thus, the States withdrew, terminated and then re-established the Union with a new and expanded agreement in spite of the fact that the Articles did not provide for this because the Union established by the Articles was agreed to be perpetual.
Your thoughts?
TDude-
This how I view the secession question you raised.
Since each of the States voluntarily entered into the compact or contract known as the Constitution for the United States of America, they have the power, as sovereign political entities, to withdraw from that voluntary agreement any time they choose. If the contract placed any restrictions on the States, those restrictions would have to be enumerated in the contract. Nowhere in the Constitution is there any clause that restricts the States from withdrawing from the Union or is there any clause that designates the term, in years, of the Union between the States.
In his book, Democracy in America, Alex De Tocqueville observed:
“The Union was formed by the voluntary agreement of the States; and these, in uniting together, have not forfeited their Nationality, nor have they been reduced to the condition of one and the same people. If one of the States chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so, and the federal government would have no means of maintaining its claims directly, either by force or by right.”
Your thoughts?
BG
Generally, I agree with Alex. The only issue I see is whether there might be a claim for damages by other STATES (not the feds) under a 'reliance' theory that is recognized in the law.
As I said above, there's no ethical way to keep States in the union. To me, the union is more like a contract among States than anything else. To me, the federal government is an artificial creation of the States which are, themselves, artificial creations of the People (who are the only real beings in this entire story).
If the People, through a State, want to change something, they can do so but they might have an adverse impact on the other States to the Compact. If so, there may be a claim for damages by other States that relied on the Compact. But, that's it. There is no claim by the federal government – just the other States that are parties to the agreement.
BG
Agreed. The fact that the AoC were claimed to be "perpetual" and yet clearly were not is a strong point for those who believe States cannot withdraw.
Obviously, where all the parties to an agreement that is said to be 'perpetual' agree to dissolve the agreement, it will be dissolved despite the prior language.
The Constitution left out the 'perpetual' language but it couldn't have been enforced even if it were there. The States can secede anytime they want; it's a VOLUNTARY compact and there's just no other way to see it. It is simply unethical to force someone to stay in a relationship he wants out of. If he addresses any damages he causes by termination he MUST be free to leave.
That's why I said Lincoln got it wrong. He CREATED slavery rather than ended it!
BG
I agree with all the sentiments expressed here by TJ and Madison. As I recall, TJ was NOT pleased with Marbury.
I would have preferred a Constitutional Review Board but that didn't happen. I believe the States can nullify acts of the feds and can also secede anytime they want. That is the obvious, logical result of the way the union was formed as a compact of States under the Constitution.
(I was only answering your principal/agent question as a lawyer. I do not believe it is entirely apt in this context.)
Error: "principles" should be "principals"
Hi, Julie
I think BG is suggesting what you said. I was just taking his principal/agent hypothetical and answering his question as a lawyer. Again, in a typical principal/agency relationship, there is an agreement, usually written, that will spell out the rights and duties of the parties. Typically, there will be a dispute resolution clause and, if not, a court will decide using principles of common or statutory law, as applicable.
That, to me, is where the analogy to the States/Feds breaks down since that isn't possible.
I'm not saying a third party MUST be brought in to resolve constitutional differences (although I think that is a good idea and that's why I proposed a Constitutional Review Board a long time ago here). I'm just saying that's how it works in agency law.
Since the Constitution doesn't specify the method for resolving these disputes, we have to come up with some method. Marshall left it to his own court to decide. I don't think that's fair or in keeping with the spirit of the Constitution. I believe the States are superior in power (in theory) to the feds and the people should use this power to shut down the feds. Nullification is thus a good idea.
TDude-
Back in the 1980's, someone did research and documented that the 16th Amendment had not been ratified. When he took the issue to court, the federal courts ruled they lacked jurisdiction because the ratification or the lack thereof was a political question and the case was dismissed.
Justice Marshall stated: “the judicial power cannot extend to political compacts.”
That being the case, I would argue—-
Since the Constitution is a political compact between the several States, the federal courts have no constitutional authority to define the nature of the compact. As stated by Marshall, the federal judiciary has no jurisdiction over political questions.
The federal judiciary was not granted the power to decide, in the last resort, questions involving the nature of the compact between the several States. Only the States, as the exclusive parties to the compact possess that power. If the federal courts had the power to define the extent of federal power, then the Constitution, as a written document, would be meaningless.
BG
I handled several of those '16th amendment was not ratified properly' cases back in the 80's when I worked for the federal court for the Chief Judge in my district. We did not refuse to decide the cases on the ground ratification is a political issue. (In every case, there was a lack of evidence to overcome the presumption the law favored.)
The 'political question' argument is a policy decision by the courts based on the theory of separation of powers and is not a hard rule of law. It's usually a dodge used by a court that doesn't want to 'rock the boat.' (Recall, however, Gore v. Bush, which the courts decided.) And, there's almost always some element of conflict of interest. E.G., a federal court whose employees are paid from federal income taxes are asked to find the federal income tax is unconstitutional.
However, I agree with you that the federal courts, which were created by the Constitution, cannot logically and fairly determine the extent of that same Constitution. I also agree that the States are more logical.
However, EXACTLY how do you do it? It was never specified and, again, I think that was a mistake.
Further, I'm sure you can imagine that California might find ObamaCare constitutional while Montana might not. That disagreement among various States could cause practical problems.
I think it would be better to have an agreed upon method that does not violate the spirit of the Constitution and that is workable and fair.
Short of that, nullification and secession are options that can move the issues forward and force people to start dealing with this very important issue!
TDude-political question quote of interest.
"A constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution to Congress or the president is a political question, which judges refuse to answer."
Mode of amending federal Constitution is a political question. Coleman v. Miller, 307 U.S. 433 (1939)
I would think if the mode of amendment is a political issue, then so is the nature of the compact as far a federal power is concerned because the compact adopted by the several States created the federal government and granted its departments all of their powers.
BG
Thanks for the great quote and cite! Hard to argue with your logic…
As a guy who spent many years in the federal court system, I can say that 'political question' is a dodge used whenever a court doesn't want to step into something they think is really ugly. They have NO PROBLEM stepping into cases where they have NO IDEA WHAT IS GOING ON if it happens to suit their biases. (School busing and abortion come to mind immediately.)
FWIW, I enjoy reading all your comments and appreciate all the effort you put into educating everyone here.
Thanks!
And I thank you both.
TDude-back at ya for the legal perspective you bring with all your great comments.
I have a plan of action on this topic, as we have discussed above, and want to run it by you.
I will do it in a separate post.
BG
Sounds good!
Hi, Julie
You're welcome! I appreciate your thoughtful and courteous comments that move the discussion forward. It's very encouraging to know there are people out there across America who care enough to participate.
What if any federal law would only apply to the people of the States whose representatives voted for that law? An automatic opt-out (or withdrawal of consent) provision?
Alex
Interesting idea… It sounds as if you'd end up with 2 state legislatures: one in your state's capital passing laws for the citizens of that state and a much smaller one in Washington DC doing the same thing.
If I've got that right, it seems redundant for the most part although it might result in some diversity of ideas that would be lacking at the purely local level.
I'm guessing the sentiment is that you don't want to be stuck with crap that people from a wildly different area think is a great idea. For me, a good example is that the size of my shower head is determined by some bureaucrat in Washington DC even though I live in rural Oregon on a well and recycle rain water!
To me, that is the core of the idea of federalism and is the core of the idea underlying the original intent of the US Constitution: local control is better than centralized control from afar. (Think: King of England telling Colonists how to live.)
With the exception of the few, defined powers listed in the Constitution, governance should be left to the States and the People in those States who are closest to their problems and best able to decide how to resolve them. (The downside is you don't get the federal treasury's help and people have to start dealing with that issue and stop relying on OPM to live on.)
People who read this site regularly, should consider studying their State's constitution as carefully as they read the US Constitution so they can see more clearly how their State was intended to be the main locus of governmental power in their lives. At that level, you have a much better chance of controlling the outcome and, even if you don't get your way, at least you can feel you had SOME chance. With the national approach we have now, the "little people" have NO CHANCE. This will result in violence some day as the gap between power and no-power widens ever greater.
If only Constitution was applied as intended and the Federal government stayed confined in its original boundaries we would not have this discussion.
However, the Federal government routinely oversteps the limits of its power (shower head is a perfect example) and there is nothing that can stop it except for a set of legislators who would repeal all unconstitutional laws at the expense of their political career. I don't think this will ever happen though.
Alex
Sadly, I agree with every word you wrote…
TDude-I was re-reviewing the following book today. It discusses the topic raised in this article and our discussion about political questions. Have you heard of this book or have you read it? Re-prints are available and it can be read and copied on line.
His analysis is awesome. It is one of the finest books ever written on the nature of the federal government. This book is required reading for anyone interested in this subject.
Abel Upshur, The Federal Government: It’s True Nature and Character, (1868, New York, Van Evire, Horton & Co.) Upshur was a Judge of the General Court of Virginia and entered President Tyler’s Cabinet as Secretary of the Navy. He became Secretary of State in the spring of 1843.
BG
Yes, thanks. Upshur hammers home the point that, to me, has always been obvious: The Constitution is a compact among the States on behalf of the citizens of each State and is not a document of one mass of people known as Americans.
Sadly, with people like Marshall, Story, Jay, et al, this point has to be reiterated ad nauseum even though it is abundantly clear from the text of the Constitution itself.
These moronic arguments just won't go away. People who want a certain result will grasp at any straw (such as the wording of the Preamble, general welfare clause, necessary and proper clause) to make their point while, at the same time, ignoring critical language that CLEARLY settles the matter simply because it goes against their bias for a given result.
I call myself a textualist because I believe the language of the document itself controls. It's not necessary or proper to refer to other documents to interpret the Constitution if the language of the Constitution is clear.
On this point (and many others), the Constitution is clear that the States RETAINED their independent sovereignty. Frankly, no one of intellect and honest can claim otherwise after reading the Constitution itself.