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

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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.

Attorney General Alberto Gonzales on Wednesday warned federal judges not to meddle in cases involving national security, following a string of judicial rebukes of the Bush administration’s anti-terrorism initiatives.

In a speech to the conservative think tank American Enterprise Institute, Gonzales said federal judges are not “equipped to make decisions about” actions the president takes in the name of preserving national security.

Let’s be clear here. It is absolutely the role – the mandate – of the judicial branch to make decisions on whether or not the actions of the president (the whole government for that matter) fall within the powers allowed by the Constitution.

But wait, there’s more:

Gonzales added that the judiciary should show deference to the executive branch when national security is involved, because, unlike the Bush administration, judges “don’t have embassies around the world gathering up information.”

Whether or not this is now “official policy” is not the issue. The fact remains that a high-ranking executive branch official gave a “direction” to the judicial branch to stop looking at the constitutionality of the actions of the executive. Sounds pretty strange, doesn’t it?

The federal government cannot legally wield any power that is not specifically granted by the Constitution. According to the Tenth Amendment, powers not expressly delegated to the federal government are reserved “to the states respectively or to the people.”

Nowhere in the Constitution is there a power to allow the executive to direct the judiciary in any way. Nowhere in the Constitution is there a power for the judiciary to decline to ajudicate actions by the government because of a “direction” or “recommendation” by the Attorney General.

Since these powers are not delegated to the federal government, then they must be among those powers reserved “to the states respectively or to the people.” Simply put, the executive branch is not constitutionally empowered to “meddle” in the affiars of the Judiciary, whatsover.

The courts are the last line of defense that “we the people” have to protect ourselves from abuses by the legislative and executive branches. If judges collude with either of the other two branches of government, then the separation of powers, and thus, all hopes for individual liberty, will collapse.

If this becomes policy of the executive, or practice of the judiciary, there will be an absolute need for us to call for the resignation or impeachment of judges who refuse to carry out their duty.