In a historical ruling on Hedges, et al. v Obama, et al. on Wednesday, May 16, Judge Katherine Forrest of the United States District Court for the Southern District of New York preliminarily enjoined the Federal Government from enforcing section 1021 of the 2012 National Defense Authorization Act (NDAA).

Section 1021 purports to authorize the President to designate all persons — including U.S. Citizens found within the U.S — as enemy combatants, subject to the Law of War, including; Indefinite detention without trial or charge, transfer to foreign jurisdictions or entities (commonly known as extraordinary rendition), and military tribunals. Section 1021 authorizes enemy combatant status not just for “terrorists,” but also for the broad and undefined; those who “substantially support Al-Qaeda, the Taliban or Associated Forces that are engaged in hostilities against the United States or its coalition partners.” Those covered by section 1021 are unclear and subject to abuse because it is not limited to individuals directly responsible for terrorism or belligerent acts; it applies to vague ‘substantial support’ for undefined ‘associated forces.’ Section 1021 leaves these key terms undefined; and up to the President’s discretion. Importantly, section 1021 does not require a mens rea or scienter requirement to one’s substantial support. Thus, someone may be subject to the NDAA without ever knowingly or recklessly providing such substantial support.

Mr. Hedges and his co-plaintiffs — reporters, activists, organizers and even a politician from Iceland critical of the U.S. war on terror — have asserted that section 1021 is vague to such an extent that it provokes fear that certain of their potential associations and expressions, including journalistic, political and organizing activities, could subject them to indefinite or prolonged military detention; violating their First Amendment Free Speech and Fifth Amendment due process rights. Each Plaintiff testified that section 1021 has already had a chilling effect on such associational and expressive activities–and it would continue to do so. Mr. Hedges, for example, is a reporter that has interviewed numerous alleged terrorists and terrorist organizations, and testified he no longer interacts with or reports on many such groups out of fear section 1021 may subject him to military detention.

The Government opposed the plaintiffs’ request for preliminary injunctive relief on three grounds. First, that plaintiffs lack standing because they have not been detained pursuant to the NDAA. Second, that even if the Plaintiffs have standing, they have failed to demonstrate an imminent threat requiring preliminary relief. Finally, the Government argued that Section 1021 of the NDAA is simply an “affirmation” or “reaffirmation” of the authorities already conferred by the 2001 Authorization for Use of Military Force (“AUMF”), and thus, the NDAA does not now suddenly subject the Plaintiff to any new immediate disposition that requires injunctive relief.

On April 16, 2002, The Tenth Amendment Center filed an Amicus Curiae brief in support of the Plaintiffs, alleging that section 1021 of the NDAA is unconstitutionally vague and overbroad because it is does not define who is covered and what conduct is prohibited. The Tenth Amendment Center put forth compelling arguments that those covered by the “substantial support” standard are unclear because that term is undefined and overly broad, and importantly, there is no knowing requirement to such support. Moreover, the NDAA does not define the “associated forces” one may not provide “substantial support” to. This rank vagueness is violative of Fifth Amendment due process rights.

The Tenth Amendment Center also discussed how the NDAA is unconstitutional on its face because it is rooted in the 2001 AUMF, which is itself an unconstitutional congressional delegation of war making authority, and that the NDAA violates Article III section III’s treason clause because it forgoes the constitutional requirements to prove treason. These later arguments were not central to the Courts ultimate decision.

STANDING

As a Preliminary matter, the Court was required to decide whether or not the Plaintiffs possessed standing to contest section 1021 prior to being disposed according to its provisions. Standing is established in this case if a litigant shows a concrete injury in fact, or imminent injury, caused by section 1021, that a preliminary injunction can remedy. Because the Plaintiffs’ have not been formally subject to the NDAA, it is more difficult to establish standing to contest the law. The Plaintiffs took the position that their present cessation of journalistic and political associations and expressions, as well as their well-grounded fear of the imminent application section 1021 due to their past and future activities, establishes the concrete injury sufficient for standing.

The Court’s method of analysis first dispenses with the Government’s contention that the section 1021 is nothing more than an affirmation of the AUMF. The Court found — as advanced by the Tenth Amendment Center and Rhode Island Liberty Coalition for months — the NDAA far exceeds those powers permitted by the 2001 AUMF. This is an important distinction because if section 1021 only reaffirmed the already-existing 2001 AUMF powers of the executive, and the Plaintiffs’ various activities have not so far subjected any of them to those already-existing powers, the Plaintiffs’ argument that section 1021 created imminent peril (the requirement for Court-issued preliminary injunction of a Congressional Act) would be undermined.

Instead, the Court found that the 2001 AUMF was limited to responding to the 9/11 attacks, while section 1021 casts a broad net that potentially encompass numerous of the Plaintiffs’ activities unassociated with 9/11 or those responsible for 9/11. In fact, and of central importance to the Court’s decisions, was that the Government lawyers could not even define what section 1021 “substantial support” encompassed, and they would not aver that the Plaintiffs past, current and potential future journalistic and political expressional and associational activities would not subject them to section 1021.

“I can’t make specific representations as to particular plaintiffs. I can’t give particular people a promise of anything” said the Government Lawyer at hearing.

The Court aptly noted: “It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that Section 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.”

The Court further found that the Plaintiffs’ expressive and associational deprivations are actual current, substantial,injuries to the Plaintiffs, and that the Plaintiffs’ also faced future, imminent and particularized invasion of legally-protected interests as potential covered persons under NDAA section 1021. The Court rightly found that these current and imminent harms, coupled with the significant gravity of indefinite detention, enabled the Plaintiffs to contest the NDAA’s constitutionality without first formally being designated as subject to section 1021 by the Government.

Accordingly, the Court found that the Plaintiff’s had standing because each “has shown an actual fear that their expressive and associational activities are covered by § 1021; and each of them has put forward uncontroverted evidence of concrete–non-hypothetical–ways in which the presence of the legislation has already impacted those expressive and associational activities.”

INJUNCTIVE RELIEF 

In order to demonstrate entitlement to preliminary injunctive relief, the Plaintiffs were required to show (a) a likelihood of success on the merits of their claims of section 1021’s constitutional infirmity; (b) that they will suffer irreparable harm in the absence of the requested relief; (c) that the balance of the equities tips in their favor; and (d) that the injunction is in the public interest. Even in the face of the maxim that the Court must seek to find an interpretation of the statute that upholds the constitutionality of the legislation, section 1021 is so overbroad and vague that the Court was unable to do so.

The first, and most important, analysis concerns section 1021’s constitutionality. The Plaintiffs first assert that Section 1021’s over breadth captures their expressive and associational conduct in violation of their rights under the First Amendment. Separately, the Plaintiffs, and the Tenth Amendment Center in its Amicus Curiae brief, assert that the statute’s profound vagueness violates due process rights under the Fifth Amendment.

The Court was first tasked with determining which type of scrutiny to apply to the NDAA section 1021’s alleged infringement on the First Amendment’s associational and expressive rights; the tepid rational basis test, the heightened scrutiny test, or the strict scrutiny test where the Government must present a compelling justification for its infringement. Strict Scrutiny is an extremely heavy balancing test for the Government to overcome because it involves the infringement of a fundamental Constitutional right; in this case the content-based deprivation of First Amendment political expressive and associational conduct.

The Court justly found that Strict scrutiny applied because “each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by section 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within section 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.”

Applying the strict scrutiny test, the Court remarked on long-established case law holding that only the “exceptional circumstances” of political speech that incites violence, is obscene, or is incidental to criminal activity, may be prohibited. The Plaintiffs past and potential future political conduct, which the Court concluded is encompassed by Section 1021, simply does not rise to those levels prohibited political speech. Accordingly, the Court concluded that section 1021 is unconstitutional as a violation of the First Amendment.

The Second prong of Constitutional analysis concerns the Plaintiffs’, and the Tenth Amendment Center’s, contention that NDAA section 1021 is unconstitutional as a violation of the FifthAmendment’s Due Process Protections. To satisfy the Due Process Clause of the Fifth Amendment, individuals are entitled to understand the scope and nature of statutes which might subject them to criminal penalties. Although the NDAA concerns military law, the punishment is criminal in nature, and the Court accordingly applied the criminal statute test: A penal statute must define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement. That analysis is performed against the backdrop of a strong presumption of validity given to acts of Congress.

The Court then remarked on an interesting facet of Constitutional examination: a Due Process analysis usually is “as applied” — meaning that the facts of those allegedly deprived of due process drive the consideration, or put otherwise; ‘did this person’s treatment violate due process.’ Except however, where the statute does not contain a “mens rea” or scienter requirement, e.g. a requirement that one knowingly or recklessly committed the prohibited conduct. As argued by the Tenth Amendment Center, the Court found that section 1021 does not have a mens rea or scienter requirement; that one may still even be subject to section 1021 even though they had no knowledge their conduct “substantially supported” a terrorist organization. The Court found that in these circumstances, Constitutional challenges based on due process may be asserted based on the plain language of the statute, without regard to the underlying facts of the complaining litigant.

Moving on to its analysis, the Court remarked: “Before anyone should be subjected to the possibility of indefinite military detention, the Due Process Clause of the Fifth Amendment requires that individuals be able to understand what conduct might cause him or her to run afoul of § 1021. Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct.” The Court refers specifically to section 1021’s prohibition of providing vague “substantial support” for Al-Qaeda, the Taliban or undefined “associated forces.”

The Court noted that although “associated forces” may be subject to definition (“individuals who, in analogous circumstances in a traditional international armed conflict between the armed forces of opposing governments, would be detainable under principles of co-belligerency”), not even the Government was able to define precisely what “direct” or “substantial” “support” means. And of course, the Government was unable to state that plaintiffs’ conduct fell outside section 1021. In addition, the Government even conceded that the statute lacks a scienter or mens rea requirement of any kind. Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.

The Court stated that “the vagueness of § 1021 does not allow the average citizen, or even the Government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope” and emphatically concluded that “In the face of what could be indeterminate military detention, due process requires more.” Furthermore, the Court ruled that the section 1021 is so overbroad and unspecific that the Court is not able to construe it in a limiting manner to comport with the Constitution. To do so, the Court would have to rewrite the law to such a great extent that it would unconstitutionally adopt the Legislative function; this is strictly prohibited.

Finding that the section 1021 expands that which was authorized by the 2001 AUMF and is an unconstitutional deprivation of First and Fifth Amendment guarantees, and because the Government could not say whether the Plaintiffs’ conduct subjects them to section 1021, the Court then easily concluded that the potential of the Plaintiffs’ indefinite detention constituted imminent and irreparable  harm.

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The Court finally recognized the strong public interest in citizen retention of First and Fifth Amendment rights, and determined that these fundamental rights balanced the equities between the parties in favor of the Plaintiffs. The Plaintiffs risk of indefinite detention far outweighed the Government’s proffered powers under section 1021. Indeed, the Court noted that if an injunction issued, the Government would still possess all the war powers of the 2001 AUMF, just not the expansive and unconstitutional ones contained within section 1021.

The Court then granted the Plaintiff’s motion for preliminary injunction halting enforcement of section 1021 of the NDAA pending further order of the Court or amendments to the statute rendering its Opinion & Order moot.

One extremely interesting wrinkle is that Plaintiffs Kai Wargalla, of the UK, and Brigitta Jonsdottir, of Iceland, are not U.S. citizens, and for the most part, do not live in the U.S. Yet the Court did not distinguish between these individuals’ and the citizen-Plaintiffs’ Constitutional rights. The Court also did not forbid the application of section 1021 to only the U.S. homeland. Thus, the Court’s decision can be interpreted as applying to citizens and non-citizens alike, potentially located anywhere.

Striking!

The path the Government takes is unclear. There likely will be an appeal to a higher Court where most of these questions will again be dealt with. However, on appeal, the Court’s findings that the section 1021 does apply to the Plaintiffs will likely be preserved, and will form the factual basis for appeal. The system works, for now!

*******

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. C. U. S. Art. 1. §. 9.

The writ of habeas corpus, is the great and efficacious remedy provided for all cases of illegal confinement; and is directed to the person detaining another, commanding him to produce the body of the prisoner, with the day and cause of his option and detention, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. In England this is a high prerogative writ, and issues out of the court of king’s-bench, not only in term time, but during the vacation, by a fiat from the chief justice, or any other of the judges, and running into all parts of the king’s dominions.

In Virginia it may issue of the high court of chancery, the general court, or the court of the district in which the person is confined, and may be awarded by any judge of either of those courts in vacation: and if any judge in vacation, upon view of the copy of the warrant of commitment or detainer, or upon affidavit made, that such copy was denied, shall refuse any writ of habeas corpus, required to be granted by law, such judge shall be liable to the action of the party aggrieved.

And by the laws of the United States , all the courts of the United States, and either of the justices of the supreme court, as well as judges of the district courts, have power to grant writs of habeas corpus for the purpose of an enquiry into the cause of commitment …. Provided that writs of habeas corpus shall in no case extend to prisoners in goal, unless they are in custody under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

Here a question naturally occurs: if a person be illegally committed to prison in any state, under, or by colour of the authority of the United States, can any judge, or court of the state in which he is confined, award a writ of habeas corpus, for the purpose of an enquiry into the cause of his commitment? To which, I answer, that if he be committed or detained for a crime, unless it be for treason or felony, plainly expressed in the warrant of commitment, and be neither convicted thereof, nor in execution by legal process, the writ (due requisites being observed) can not be refused him : for the act is imperative, as to awarding the writ.

The court or judge, before whom the prisoner is brought, must judge from the return made to the writ, what course he ought to pursue: whether, to discharge him from his imprisonment; or bail him, or remand him again to the custody of the person from whom he may be brought.

In England the benefit of this important writ can only be suspended by authority of parliament. It has been done several times of late years, both in England and in Ireland, to the great oppression of the subject, as hath been said. In the United States, it can be suspended, only, by the authority of congress; but not whenever congress may think proper; for it cannot be suspended, unless in cases of actual rebellion or invasion.

A suspension under any other circumstances, whatever might be the pretext, would be unconstitutional, and consequently must be disregarded by those whose duty it is to grant the writ. The legislatures of the respective states are left, I presume, to judge of the causes which may induce a suspension within any particular state. This is the case, at least, in Virginia.

St. George Tucker [1752-1827] was a professor of law at College of William and Mary. In 1804 he was appointed to the Virginia Court of Appeals in Richmond.

The clear answer is “yes.” During the colonial era, each colony was governed by its charter, which was a kind of constitution for the colony. Colonial laws in violation of the charter were understood to be void. So also were laws that violated fundamental documents in the British Constitution, such as Magna Carta.

During the ratification debates, both Federalists and Anti-Federalists assumed that the courts would have power to void unconstitutional laws. Probably the most famous example is Federalist No. 78, in which Alexander Hamilton wrote:

By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

During the Virginia ratifying convention, Federalist George Nicholas responded to fears that the federal government might exceed its powers by saying,

But, says he [Anti-Federalist Patrick Henry], who is to determine the extent of such powers? I say, the same power which, in all well-regulated communities, determines the extent of legislative powers. If they exceed these powers, the judiciary will declare it void, or else the people will have a right to declare it void.

Anti-Federalist George Mason, discussing ex post facto laws, argued at the same convention, “Will it not be the duty of the federal court to say that such laws are prohibited?” And at the same gathering Federalist John Marshall argued that Congress could not exceed its enumerated powers:

If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under [congressional] jurisdiction. They would declare it void.

In the years before the first case in which the Supreme Court struck down a federal law (Marbury v. Madison, 1803), there were over thirty episodes in which American courts voided state or federal laws for unconstitutionality. See William Michael Treanor, Judicial Review Before Marbury, 58 Stanford L. Rev. 455 (2005).

The occasional claim that the Framers rejected judicial review at the Philadelphia convention seems arise from misunderstanding the Framers’ decision to reject a council of revision. A council of revision was a system that then existed in some states as a substitute for the executive veto. It was a panel of executive and judicial officers who reviewed a bill before it became law. Like an executive when he considers whether to sign or veto a bill, the council could consider issues of policy and drafting as well as constitutionality.

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Elbridge Gerry argued against a council of revision, and his argument shows how well accepted judicial review was. According to James Madison’s notes,

Mr. Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of [the] office to make them judges of the policy of public measures.

The convention followed Gerry’s advice and adopted the presidential veto instead of a council of revision.

The schoolboy version of the American system of government centers on the three-branch structure of the Federal Government established by the ratification of the Constitution in 1788. Integral to that structure are a system of checks and balances among those three branches and the division of powers between the Federal Government and the states. The Tenth Amendment makes that federalism principle explicit.

The dirty little secrets, however, are that the division of powers disappeared long ago, and the checks and balances do not work. Instead of a decentralized, republican system in which the Federal Government bears responsibility for only a few issues, then, Americans now groan under an unlimited central government whose taxing, spending, borrowing, and printing seemingly know no limits either of law or of sense.

To read through this tome is to be struck by the unalloyed banality of both Stevens’ writing and his mind. Stevens spent thirty-four years on the Court, and yet the 282 pages in his book include a 32-page Appendix reproducing the Constitution, the signatures affixed to the Constitution, and the amendments, two pages of acknowledgements, and several blank pages. In addition, he gives thirty pages over to an extremely shallow account of the history of the Supreme Court up to the middle of the twentieth century.In light of their distended significance, Supreme Court justices now occasionally bless the rest of us with their ruminations. The latest specimen of the genre is John Stevens’ Five Chiefs: A Supreme Court Memoir.

For example, Stevens’ account of Chief Justice Roger B. Taney’s tenure as chief justice is notably brief. Its one paragraph merely summarizes the Court’s outrageous decision in Dred Scott v. Sandford (1857) and says that, “The only good thing that can be said about that case is that Abraham Lincoln’s criticism of it in his famous debates with Stephen Douglas received nationwide attention and helped get him elected president.” (p. 20)An impressive intellect might have turned the excursion through the Court’s early history to good effect. Stevens, on the other hand, seems not to recognize the ways in which events he glosses over laid the groundwork for his own career.

Yet, Stevens actually based much of his performance as an associate justice on the foundation of Dred Scott. It was after all in Dred Scott that the Court invented the idea of what scholars and judges alike now call “substantive due process.” That idea is that the Fifth Amendment’s statement that, “nor shall any person … be deprived of life, liberty, or property, without due process of law” did more than guarantee that before one could be punished, he must first be afforded all of the incidents of the traditional Anglo-American adversarial process.

No, the Fifth Amendment’s Due Process Clause was used in Dred Scott as an empty vessel into which seven entirely partisan Democratic justices could pour their desired partisan outcome: a holding that Congress could not bar slavery from the western territories. Far from merely procedural, as it seemed to be (and had always been thought to be), the Due Process Clause was substantive.

When in the 1860s Congress came to draft the Fourteenth Amendment, it inserted a clause nearly identical to the Fifth Amendment’s Due Process Clause, this time applying the requirement to the states. Beginning in the early 20^th century, federal judges used this provision as an empty vessel into which they could pour all of their favorite policy outcomes, this time making them enforceable against the states.

Stevens makes clear what he does not mean: that the outcome is consistent with the intention of the people in adopting a particular legal or constitutional provision. He provides only the assertion that one must not be guided by any such intention.Stevens in the slim portion of the book on his own career trumpets various rights-creating lines of the Court’s recent product, such as the cases in which the justices invented various sexual rights enforceable against the states, various religious rights enforceable against the states, etc. He calls some of these outcomes “correct” without ever saying how one can know which outcome is correct.

Here we find the fundamental theoretical shortcoming of the current American regime: that no one ever consented to it. As I showed in The Politically Incorrect Guide to the Constitution, federal judges long ago abandoned the notion that constitutional interpretation was about, well, interpretation. Instead, Taney-like, they use constitutional cases – and, when it comes to enforcing made-up individual rights against state governments, Taney’s Dred Scott doctrine of substantive due process – as opportunities to impose their will.

This problem was uniquely grievous in the case of Justice Stevens. As the sole Supreme Court appointee of President Gerald Ford, Stevens was the sole justice appointed by a man who had never been elected either president or vice president. Even if one accepted the legitimacy of substantive due process as a way for people indirectly elected to enforce their superior wisdom on the rest of us, then, it would still be hard to see how Ford’s appointment of Stevens could justify wide-ranging legislative behavior by Stevens.

Stevens blithely accepts that the Supreme Court is a kind of super-legislature. Indeed, Five Chiefs gives not the slightest indication that Stevens has ever considered this matter. One might wonder whether he has thought about the Constitution much at all. For example, I am certain that every student in my recently concluded undergraduate course in American Constitutional History knows that the Bill of Rights is the first ten amendments to the US Constitution. Stevens, on the other hand, refers to “the first eight amendments to the Constitution, commonly described as the Bill of Rights.” (p. 19)

No, this doubtless is not a typographical or editorial mistake. Rather, it reflects the Hamiltonian approach to federal power taken by virtually all of our ruling elite today. As James Madison and his fellows explained the Constitution, it was to create a few islets of federal power in a sea of liberty. The Bill of Rights’ purpose was to ensure that the limits on theFederal Government’s power were respected, and thus to help preserve the principle of subsidiarity so integral to the Constitution’s original structure.

Thus, the Ninth Amendment said that the list of rights earlier in the Constitution was not exclusive, and the Tenth said that all powers not given to the Federal Government by the Constitution or denied by it to the states were reserved to the states or the people. Clearly, neither of these amendments serves the purpose of Stevens and the like, whose goal is to impose their will regardless of petty issues like popular consent. They have ignored the Ninth and Tenth Amendments for so long that, like a Trotskyite of old, those amendments no longer appear in the official photos. Now, the Constitution as they understand it stands for a few small islets of liberty in a sea of power.

Stevens’ ideas thus reflect not some well-considered jurisprudential perspective, but the Common Wisdom of our Betters. Rather than burdening readers with discussion of such matters, Stevens devotes more than two pages of his book – a memoir of thirty-five years on the Supreme Court – to an explanation of the placement of the conference table in the room where justices meet to discuss pending cases. (pp. 212-14) Utter inanity.

Numerous journalists have spilled lakes of ink describing absurdly low-brow discussion in American legislative bodies. John Paul Stevens’ memoir shows why we should not assume that decision-making by unelected, unaccountable, politically connected lawyers meeting in secret in Washington is a superior alternative to parliamentary politics. If you have a low opinion of American legislators, you ought to favor less government, not government by judiciary. Come to think of it, that was the Constitution’s bias as well. At least, as it was originally understood.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776-1840 ( and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush. His latest book is James Madison and the Making of America.

Copyright © 2011 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Commentators and journalists sometimes describe the current U.S. Supreme Court as “conservative.”  But that’s not true if your definition of a conservative justice is a traditional or “originalist” jurist—that is, one who applies the Constitution as the American people understood it when they adopted it.

Consider, for example, the Court’s latest First Amendment case.  The Court utterly disregarded the true meaning of that amendment, and instead applied a rule almost entirely unrelated to it.

The case was Snyder v. Phelps.  The father of a deceased U.S. Marine brought a suit under state common law against some members of the notorious Westboro Baptist Church.  As you may have learned from news sources, the Westboro Baptist Church is a tiny congregation with extreme anti-homosexual views.  The members regularly picket the funerals of soldiers, displaying signs that attack the military, the United States, and the innocent deceased.

Church members did so in this case, parading hateful signs on public property near the funeral.  They also launched unfounded personal attacks against the deceased both at the funeral and over the Internet. The serviceman’s father was so devastated emotionally that he sued them for damages, relying on claims for intentional infliction of emotional distress and for several other common law torts (civil wrongs).  The jury found that the father had been deliberately injured, and awarded him damages.

The church members demanded that the verdict be set aside.  They argued that the First Amendment Free Speech Clause protected them from liability.

Now whatever you think about Westboro Baptist or the father’s lawsuit, the fact is that the First Amendment, properly understood, was simply irrelevant to the case.  The issue should have been a slam dunk for the Court.

The text of the Free Speech Clause reads, “Congress shall make no law . . . abridging the freedom of speech.”  That is, the Amendment restricts actions of Congress.  Unlike other parts of the Bill of Rights, it applies only to the federal legislature, not to other branches of government.  It does not affect the common law, a system of case-by-case precedent built up by judges and juries over the years—a system expressly recognized as legitimate in other parts of the Constitution and Bill of Rights.

Moreover, the First Amendment says absolutely nothing about the states—and, in fact, during the 19th century the Court correctly held that the federal Bill of Rights controls only the federal government.  (States are bound by their own constitutions’ bills of rights.) True, some scholars argue that the later-adopted Fourteenth Amendment applied the First Amendment to the states, although others argue the contrary.  But the Supreme Court has never persuasively explained why it thinks the Fourteenth Amendment imposed the First on the states.  And even it did, that would bind only their legislatures, the state analogues of “Congress.”  It would not affect the common law.

There’s more: Although you would never know it to read Supreme Court First Amendment decisions, the Founders actually meant something by the phrases “freedom of speech” and “freedom of the press.” Those phrases had specific content.  What they meant is explained more fully in my book, The Original Constitution.  But what is important here is that they did not prevent civil lawsuits by innocents for harm inflicted by irresponsible people. Among those saying so during the debates over whether to ratify the Constitution was James Wilson, one of the greatest of the Founders.  (Wilson was a Framer, a leading Ratifier, and a distinguished lawyer whom George Washington later appointed to the Supreme Court.)

And as if that were not enough, during those debates the document’s supporters represented that tort and contact cases generally remained outside the federal sphere and were reserved exclusively to the states.

Yet in the teeth of text, law, and history, the Court held that the First Amendment prevented the serviceman’s father from collecting a dime.

How could this be?

During the Twentieth Century, “progressive” justices, ignoring text, law, and history, invented new First Amendment rules out of thin air.  In the 1960s and ‘70s, over the strenuous objections of moderate justices (there were no conservatives then on the bench), progressives largely re-wrote the defamation law that states had applied for two centuries.  In the course of their activity, they virtually destroyed the cause of action family members previously could use against those who maliciously “blackened the memory” of the deceased.  That may be why the family in this case resorted to claims such as intentional infliction of emotional distress.

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If we had any consistently originalist justices on the Court today, they would have voted to overrule the 1960s/70s decisions as a form of usurpation.  In other words, they would have applied the Constitution as the people adopted it.  Instead, in Snyder v. Phelps all the justices applied the 1960s/70s decisions.  There was only one dissenter, Justice Alito, but he merely disagreed as to how to apply them.

Last year when the Left was outraged because the Court struck down some restrictions on corporate participation in politics, I pointed out that the Court was just following the rules that “progressive” activists had invented throughout the Twentieth Century.

That’s what the justices did in the Snyder case, also. Far from the Court being conservative, the fact is that today there is not a single sitting Supreme Court justice who is a consistent originalist—not one.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

Imagine you wake up one morning and walk down into your basement to find that while you slept a pipe burst, spewing hundreds of gallons of water into your cellar. To your horror, swirling water already reaches above your knees.

You immediately go to your main water shut-off, only to find it completely jammed. So, you call a plumber, who informs you that he will come as quickly as possible.

Of course “quickly” in plumber parlance means a couple of hours. When he arrives, water flows above your waist. But whatever this particular plumber may lack in speed, he makes up for in efficiency, and within moments he shuts off the flow of water and proceeds to fix the broken pipe.

A couple of hours and several hundred dollars later, the plumber leaves you with a brand new, leak free pipe. In all likelihood, you would feel a great sense of relief and perhaps even a touch of euphoria knowing that the pipe was fixed and  water was no longer free-flowing inside your home.

Just one problem – you still have several feet of water standing in your basement.

Cleanup wasn’t in this particular plumber’s job description.

The recent ruling striking down the insurance mandates in the federal health care legislation leaves me feeling a bit like the man in this little tale. I’m excited that a judge got it right – at least within the narrow scope he addressed. But when it’s all said and done, I still have a bunch of water in my basement.

First the good news.

U.S. District Judge Henry Hudson  understood the Constitution well enough to reason that the founders never intended a power to force citizens to engage in commerce.

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I….

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, the dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it’s about an individual’s right to choose to participate.

Hudson stopped the leak.

And while I see this as a positive, I still can’t bring myself to join in with those applauding the ruling as a great victory for the Constitution.

My basement remains full of water.

Although Hudson struck down the insurance mandates, reading through the entire decision reveals that he has no issue with the notion that the federal government has the power to regulate health care. He accepts the expanded view of the commerce clause formulated by the courts since the 1930′s. He takes no issue with Wickard v. Filburn, a ruling that held the federal government could fine a farmer for growing wheat for his own use, even if it never left the farm, reasoning that his consumption of his own wheat still had a substantial effect on the interstate market. And he consistently uses the terms “commerce” and “economic activity” interchangeably.

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But the founders did not understand commerce to mean all economic activity. Constitutional scholar Robert Natelson did extensive research on the word “commerce” and found that its meaning, as understood in the 18th century, centered around trade. Not manufacturing. Not agriculture and certainly not health care.

The framers granted Congress authority to regulate interstate commerce simply to prevent states from imposing tariffs on one another, thus inhibiting trade. It was never intended as a positive power allowing Congress to implement regulations on things like health care. James Madison made this clear.

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

When applying a proper understanding to the framers’ intent in granting Congress the authority to regulate interstate commerce, the Tenth Amendment Center holds that regulation of health care lies outside of the enumerated powers granted to Congress and therefore the entire health care bill is unconstitutional – not just the insurance mandates.

But the courts have stretched the commerce clause so far beyond its original intent and meaning as to render it almost all encompassing.

Hudson’s ruling places a roadblock in the progressive drive to grant Congress unlimited power to regulate virtually everything. And it certainly creates problems for President Obama and those seeking to expand the role of government in health care.

But it does nothing to restrain Congress from exercising power never intended by the founders. It does nothing to roll back more than 50 years of unconstitutional judicial interpretation. (For more on the judiciary as the final arbiter, click here.) And it does nothing to stop Congress from meddling in health care.

The Tenth Amendment Center applauds efforts to curb federal power from every front. But it is our view that the states will ultimately have to take matters into their own hands and nullify unconstitutional acts such as the federal health care legislation. We simply cannot put our faith in the federal judiciary to limit federal power.

As Thomas Jefferson said, nullification is the rightful remedy.

CLICK HERE to read about legislation in Texas that will do just that.

In the various lawsuits brought by states to challenge the validity of ObamaCare, an over-arching issue concerns the limit, if any, of Congress’ powers under the Commerce Clause.  However, there are more arguments in play.  One of them deals with Congress’ power to tax.  This issue has been discussed in Virginia vs. Sebelius by way of the federal district court’s Memorandum Opinion on Defendant’s (Sebelius’) Motion to Dismiss.

In the case, Virginia asserts that Congress is not Constitutionally-authorized to enact ObamaCare.  Sebelius filed a motion to dismiss against Virginia, on the grounds that Virginia’s complaint does not state a valid cause of action.  While the Commerce Clause issues are more widely-discussed, little discussion has been dedicated to the taxation issue which is equally important in the decision as to whether or not ObamaCare is Constitutional.

There is no doubt that Congress has the power to levy taxes.   However, as to the Commerce Clause, there are many who doubt that Congress, for example, has the power to direct that people must, pursuant to its Commerce Clause authority, put on both socks before putting a shoe on either foot.   If Congress cannot force people to do this pursuant to the Commerce Clause, then, perhaps it has another means at its disposal – this being its power to levy taxes.   So, the argument goes, based on a long line of cases from the U.S. Supreme Court.

Suppose Congress passed a law “levying a tax of $50.00 against each person, for each instance in which said person fails to don both socks before donning the first shoe.”   (Okay, I know this is a very hyperbolic example, but read on).  While such attempts to regulate would be, we hope, impermissible under the Commerce Clause, what about Congress’ power to tax?  After all, this hyperbolic measure is, indeed, a tax-raising mechanism.

This taxation argument is very much in play in the challenge to ObamaCare.   Its mandate assesses penalties on individuals who fail to obtain approved health insurance policies, and toward this end, it is being argued that it is a revenue-raising mechanism authorized pursuant to Congress’ power to levy taxes.

Throughout our history, there has been an on-going conflict in doctrines between Congress’ general power to tax and the limitations of its regulatory authority under the Constitution.   These competing doctrines are anything but novel.

In 1950, the Supreme Court issued its opinion in U.S. vs. Sanchez.   At issue was a federal tax on marijuana.   A transfer tax was imposed of $1.00 per ounce if the transfer was authorized in writing by the Secretary of the Treasury, and if the transfer was not so authorized, then, the tax was to be $100 per ounce.

The Sanchez opinion delves into the tension between Congress’ taxing power and the limitations of its regulatory authority.   Discussing this tension between the doctrines, the Court wrote:

It is obvious that [the statute], by imposing a severe burden on transfers to unregistered persons, implements the congressional purpose of restricting traffic in marihuana to accepted industrial and medicinal channels. Hence the attack here rests on the regulatory character and prohibitive burden of the section as well as the penal nature of the imposition. But despite the regulatory effect and the close resemblance to a penalty, it does not follow that the levy is invalid.

First. It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v. United States, 1937, 300 U.S. 506, 513-514, 57 S.Ct. 554, 555-556, 81 L.Ed. 772. The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v. United States, supra, or the revenue purpose of the tax may be secondary, Hampton & Co. v. United States, 1928, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624. Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate.

In essence, the proposition was thus put forth that, even though Congress might not have authority to regulate marijuana pursuant to its Commerce Clause power, it has a more general power to tax.  And if the effect of the tax incidentally has a regulatory effect over something Congress may not regulate, this regulatory effect will not impair Congress’ general authority to levy taxes.  Thus, in essence, Congress has been deemed to have an indirect power to regulate through its power to prescribe tax policies.

However, compare the Sanchez case to U.S. vs. Butler, a 1936 case where the Supreme Court struck down the 1933 Agricultural Adjustment Act, noting that it created a tax for the purpose of regulating that which Congress had no power to regulate – namely intrastate agriculture (think “pre-Wickard vs. Filburn and the switch in time that saved nine”).   In Butler, the Court wrote:

In the Child Labor Tax Case, 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817, 21 A.L.R. 1432, and in Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822, this court had before it statutes which purported to be taxing measures. But their purpose was found to be to regulate the conduct of manufacturing and trading, not in interstate commerce, but in the states-matters not within any power conferred upon Congress by the Constitution-and the levy of the tax a means to force compliance. The court held this was not a constitutional use, but an unconstitutional abuse of the power to tax. In Linder v. United States, supra, we held that the power to tax could not justify the regulation of the practice of a profession, under the pretext of raising revenue.

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These two opinions provide a general summary of the state of the law, as held by the Supreme Court, with regard to whether or not Congress may effectively regulate beyond its jurisdiction by using its taxing power.   The rule of law is:

• Congress’ power to tax cannot justify the regulation of matters beyond its regulatory authority under the pretext of raising revenue, and
• A tax statute by Congress will not necessarily fall because it “incidentally” regulates activities which Congress might not otherwise be empowered to regulate.

Confused?   Don’t be.  This is not rocket-science.  The language is clear – yes, even in both cases.   What is really happening is that the Supreme Court is making up sh….tuff as it goes.   You cannot have a Constitutional rule of law with inconsistent, flexible rules like these.

And so, I ask, why is it of any use to rely on anything the Supreme Court says?  There is no mysticism there.  No greatness.   No awesome enlightenment.  Just pure sh….tuff.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.

EDITOR’S NOTE: Joe Wolverton, II will be joining us as a featured speaker at Nullify Now! Chattanooga. Get tickets here – http://www.nullifynow.com/chattanooga/ – or by calling 888-71-TICKETS

*******

Late last week a federal judge ruled that according to the settled case law undergirding the jurisprudence of the Commerce Clause, the individual mandate of ObamaCare is constitutional.

According to the holding in the Michigan case, one of at least fifteen similar challenges wending their way through the federal court system, ObamaCare’s requirement that all individuals, regardless of personal choice, purchase a qualifying health insurance plan does not violate the Constitution, in fact it is but another of an acceptable example of “activities that substantially affect interstate commerce.” It is that precise phrase — “substantially affect interstate commerce” — that set the threshold over which the Supreme Court for decades has determined that challenges to Congress’s Article I power to regulate interstate commerce must climb.

Judge George C. Steeh, a Clinton era appointee, sided with the Obama Administration in his ruling that if an individual does not buy health care insurance, he is making a conscious decision to go without health insurance and if enough people make the same mistake, then such a decision “viewed in the aggregate, [will] have clear and direct impacts on health care providers, taxpayers and the insured population who ultimately pay for the care provided to those who go without insurance.” That is to say, if you don’t obey the ObamaCare mandates, you are increasing the cost of obedience to the national government for the rest of the country and that sort of dissent is incompatible with the principles of statism now being judicially enforced.

The “rational basis” for the decision cited by Judge Steeh is that increased cost of health care affects everyone and since everyone, at one time or another, sips from the stream of commerce, the affect is substantial and thus Congress is empowered to manipulate the flow into and out of the stream that after years of judicial misinterpretation of the Constitution and usurpation of the legislative power, has reached Nile-like proportions.

Despite this setback, the other legal challenges to ObamaCare will proceed as scheduled. The Florida case, perhaps the most publicized as it was filed by attorneys general of 20 states, will likely have a hearing on the merits of the case as currently docketed on December 16. The complaint filed by Virginia attorney general Ken Cuccinelli will be heard as early as October 18, provided that all goes according to the timeline currently in place.

In the case of ObamaCare, as in the case of so many other cases that have expanded the reach of congressional regulating authority, the federal courts are complicit in the systematic constricting of the sphere of personal liberty. What were once the economic choices of free individuals have become the incriminating evidence of aggregated crimes. You needn’t participate materially in the restricted activity if your participation, no matter how slight, can be combined with similarly insignificant contributions to form one substantially affecting whole.

What recourse remains available to Americans determined to cling to the liberties that have made us free and kept us the envy of all nations? As this ruling and its antecedents clearly demonstrate, the courts offer no hope as they have tied their wagons to the horses of tyranny running roughshod over our Constitution. There is one place to which we may turn for refuge, however. A place protected by law and armed with the natural and unalienable sovereignty by which all its citizens were “endowed by their Creator.”

The several states are the answer. Not in their present and frankly debasing role as plaintiffs in lawsuits against the federal government, but rather in their traditional and ennobling role as bulwarks of liberty and checks on the unconstitutional imbalance created by federal overreaching. While states are unarguably free to assert their natural right of self-government in the manner they deem most fitting, history and the timeless principles of constitutional law have provided a sound and permanent option, one absolutely independent of federal oversight and unsusceptible to the conspiracy of tyranny consisting of the legislative, executive, and judicial branches of the national government.

Nullification has been written about in this magazine by this author and others since before the enactment of the ObamaCare package. We have touted its benefits and promoted its worthiness as a foil to the mandates of ObamaCare and other similarly untenable laws passed by a power-mad Congress.

In a nutshell, nullification is the principle that each state retains the right to nullify, or invalidate, any statute passed by the national government that the state regards as unconstitutional. This powerful weapon against tyranny is in the arsenal of every state. As the sovereign states formed the union, and as creators of that compact, they hold the ultimate authority as to the limits of the power of the central government to enact laws that are to bind the states and the people. That is to say, may the creation be more powerful than the creator?

As cited previously in this magazine, the Founding Fathers were very clear as to their views of this matter. James Madison, writing in the Federalist Papers, declared very plainly that the states were sovereign and that they relinquished none of that sovereignty in the act of confederating to form the Constitution. No clause or phrase of that document may be accurately interpreted to exalt the national government to a position above the states or the people.

In light of Judge Steeh’s decision in the Michigan case (the plaintiffs in which have expressed their intent to appeal the decision), perhaps it is time for that bloc of Americans who are yet determined to uphold the Constitution, to retrench the federal government to within the boundaries of constitutional enumeration, and to steadfastly defend the sovereignty of states and ultimately of themselves, to elect men and women to the state legislatures who are equally committed to exercise the privileges and obligations attendant to their status as sovereigns and nullify ObamaCare and all other similarly oppressive statutes.

In time, perhaps the pursuit of such a program by a plurality of enlightened state assemblies will “substantially affect” the balance of power in this nation and restore the delicate equilibrium of federalism that is the hallmark and the genius of the American experiment.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author.

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 14^th 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 else”.  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 clause”.  In Article 6 of the Constitution, this clause says,

“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.

1. This Constitution – includes all four quadrants of our table.
2. 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.
3. “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 Constitution”, 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 2^nd 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 State”.  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 Constitution”, “the Laws of the United States which shall be made in pursuance thereof” and “all Treaties…”.

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

On August 23, 1958, 46 Chief Justices from the Supreme Courts of the several states gathered together in Pasadena, California. The event drawing their presence was the Conference of Chief Justices, a regular forum for the highest judges in each state to meet and discuss important issues.

Their 1958 meeting, however, proved to be quite different from any of the other conferences. Ten chief justices had been previously assigned, as part of a committee, to produce a report and resolution to the entire conference for a vote. The subject: federalism.

36 chief justices ultimately voted in support of the resolution and report, which declared that the U.S. Supreme Court “has tended to adopt the role of policy maker without proper judicial restraint”. Eight voted against it, and two abstained.

The report spans several pages, as presented in the October 3, 1958 edition of the U.S. News and World Report (PDF), and until now, has nowhere been made available on the internet. Scanning the statement provides an interesting insight into the tenuous balance of federalism from half a century ago, and supports concern that things have not improved, now decades later.

It should be noted, first, that the chief justices, themselves products of the conventional legal system and general adherents to its philosophy, were not advocating federalism to the extent of more radical action, such as nullification. As one example, they state in their report:

Second, when we turn to the specific field of the effect of judicial decisions on federal-State relationships, we come at once to the question as to where power should lie to give the ultimate interpretation to the Constitution and to the laws made in pursuance thereof under the authority of the United States. By necessity and by almost universal common consent, these ultimate powers are regarded as being vested in the Supreme Court of the United States. Any other allocation of such power would seem to lead to chaos. (emphasis added)

Clearly, interposition and nullification were not even under consideration for these quasi-federalist chief justices. Nevertheless, they were quite concerned with an overreaching federal government whose accumulation of undelegated power seemingly knew no bounds. Here is the text of the resolution which received an overwhelmingly affirmative vote:

Resolved:

1. That this Conference approves the Report of the Committee on Federal-State Relationships as Affected by Judicial Decisions submitted at this meeting.
2. That, in the field of federal-State relationships, the division of powers between those granted to the National Government and those reserved to the State Governments should be tested solely by the provisions of the Constitution of the United States and the Amendments thereto.
3. That this Conference believes that our system of federalism, under which control of matters primarily of national concern is committed to our National Government and control of matters primarily of local concern is reserved to the several States, is sound and should be more diligently preserved.
4. That this Conference, while recognizing that the application of constitutional rules to changed conditions must be sufficiently flexible as to make such rules adaptable to altered conditions, believes that a fundamental purpose of having a written Constitution is to promote the certainty and stability of the provisions of law set forth in such a Constitution.
5. That this Conference hereby respectfully urges that the Supreme Court of the United States, in exercising the great powers confided to it for the determination of questions as to the allocation and extent of national and State powers, respectively, and as to the validity under the Federal Constitution of the exercise of powers reserved to the States, exercise one of the greatest of all judicial powers—the power of judicial self-restraint—by recognizing and giving effect to the difference between that which, on the one hand, the Constitution may prescribe or permit, and that which, on the other, a majority of the Supreme Court, as from time to time constituted, may deem desirable or undesirable, to the end that our system of federalism may continue to function with and through the preservation of local self-government.
6. That this Conference firmly believes that the subject with which the Committee on Federal-State Relationships as Affected by judicial Decisions has been concerned is of continuing importance, and that there should be committee appointed to deal with the subject in the ensuing year.

The proceeding report details several specific cases in which the balance of federalism had been pushed too far in favor of the federal government. Towards the end, the chief justices provide some compelling arguments as the foundation of their concerns:

It is strange, indeed, to reflect that, under a Constitution which provides for a system of checks and balances and of distribution of power between national and State governments, one branch of one government—the Supreme Court—should attain the immense and, in many respects, dominant power which it now wields. We believe that the great principle of distribution of powers among the various branches of government and between levels of government has vitality today and is the crucial base of our democracy.

We further believe that, in construing and applying the Constitution and laws made in pursuance thereof, this principle of the division of power based upon whether a matter is primarily of national or of local concern should not be lost sight of or ignored, especially in fields which bear upon the meaning of a constitutional or statutory provision, or the validity of State action presented for review. For, with due allowance for the changed conditions under which it may or must operate, the principle is as worthy of our consideration today as it was of the consideration of the great men who met in 1787 to establish our nation as a nation.

Further:

It has long been an American boast that we have a government of laws and not of men. We believe that any study of recent decisions of the Supreme Court will raise at least considerable doubt as to the validity of that boast. We find first that, in constitutional cases, unanimous decisions are comparative rarities and that multiple opinions, concurring or dissenting, are common occurrences.

We find next that divisions in result on a 5-to-4 basis are quite frequent. We find further that, on some occasions, a majority of the Court cannot be mustered in support of any one
opinion and that the result of a given case may come from the divergent views of justices who happen to unite on one outcome or the other of the case before the Court.

We further find that the Court does not accord finality to its own determinations of constitutional questions, or for that matter of others. We concede that a slavish adherence to stare decisis could at times have unfortunate consequences; but it seems strange that under a constitutional doctrine which requires all others to recognize the Supreme Court’s rulings on constitutional questions as binding adjudications of the meaning and application of the Constitution, the Court itself has so frequently overturned its own decisions thereon, after the lapse of periods varying from 1 year to 75, or even 95 years.

In this resolution and report we find chief justices from a majority of the states voicing concern about a dominating federal government—one to which they defer in all questions of supremacy and authority, despite brief references to the tenth amendment and domestic powers not delegated to the federal government. We find the justices “urging” the Supreme Court to exercise “judicial self-restraint” through “the power of persuasion”.

Outside of the formal resolution, one chief justice, M. T. Phelps of Arizona, vented his frustration thusly:

It is the design and purpose of the U.S. Supreme Court to usurp the policy-making powers of the nation…. By its own unconstitutional pronouncements, it would create an all-powerful, centralized government in Washington and subsequent destruction of every vestige of States Rights expressly and clearly reserved to the States under the Tenth Amendment of the Constitution.

I honestly view the Supreme Court with its present membership and predilection, a greater danger to our democratic form of government and the American way of life than all forces aligned against us outside our boundaries. (as quoted in Ernest L. Wilkinson, “The Changing Nature of American Government from a Constitutional Republic to a Welfare State”, Brigham Young University Devotional, April 21, 1966)

Half a century later, though, we enjoy more of the same—more theft of state sovereignty, more arrogation of powers nowhere delegated to the federal government, and more indifference in regards to the question of federalism and supposed “self-restraint”.

In short, asking “pretty please” to the thieves has proven almost entirely ineffective.

Nevertheless, the information here provided gives an interesting insight into the issue of federalism five decades ago, and shows how much of a failure the justices’ method of using “persuasion” has proven to be.

As with many other questions of political authority and sovereignty, rights must be asserted and claimed, not sought after through begging and allegedly persuasive pleas.

Connor Boyack [send him mail] is the state chapter coordinator for the Utah Tenth Amendment Center. He is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.