St. George Tucker’s View of the Constitution of the United States was the first extended, systematic commentary on the Constitution after it had been ratified by the people of the several states and amended by the Bill of Rights. Published in 1803 by a distinguished patriot and jurist, it was for much of the first half of the nineteenth century an important handbook for American law students, lawyers, judges, and statesmen. Though nearly forgotten since, Tucker’s work remains an important piece of constitutional history and a key document of Jeffersonian republicanism.

His strongest point of insistence is on the necessity for governmental power to be restrained within specifically delegated limits. Of course, it is this emphasis on the limitations, rather than the uses, of power that separated the Jeffersonian Republicans from the Federalists. “But, if the efficient force or administrative authority be, altogether, unlimited; as if it extends so far as to change the constitution, itself, the government, whatever be its form, is absolute and despotic. …” By Tucker’s definition, the modern federal government, particularly in its judicial branch, qualifies as despotic. For Tucker, as for Calhoun, society, or the “body politic,” takes precedence always over the government, or state. And for Tucker, unlike Lincoln, the people may resume their sovereignty at any time. The discussion is most of all, perhaps, an answer to those Federalists, like John Adams and Alexander Hamilton, who emphasized the evils of democracy and the need for it to be restrained. Tucker’s arguments about the failings of “aristocracy” can be seen as a reply to the Federalist philosophers and also perhaps as a prophecy of later times. And Tucker’s long explanation of the characteristics and virtues of “confederate governments,” such as the United States, though strange to modern ears, represents a predominant American understanding of his own time and long after.

The concise manner in which the commentator, has treated of the several forms of government, seems to require that the subject should be somewhat further considered: this has been attempted in the following pages; in the course of which the student will meet with considerable extracts from the writings of Mr. Locke, and other authors, who have copiously treated the subject; of which an epitome, only, is here offered for the use of those who may not possess the means of better information.

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by St. George Tucker, excerpted from View of the Constitution of the United States

Having in the preceding pages taken a slight view of the several forms of government, and afterwards examined with somewhat closer attention the constitution of the commonwealth of Virginia, as a sovereign, and independent state, it now becomes necessary for the American student to inquire into the connection established between the several states in the union by the constitution of the United States. To assist him in this inquiry, I shall now proceed to consider: First, the nature of that instrument, with the manner in which it hath been adopted; and, Secondly, its structure, and organization; with the powers, jurisdiction, and rights of the government thereby established, either independent of, or connected with, those of the state governments; together with the mutual relation which subsists between the federal, and state governments, in virtue of that instrument.

I. I am to consider the nature of that instrument by which the federal government of the United States, has been established, with the manner of its adoption.

The constitution of the United States of America, then, is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively; whereby the several states, and the people thereof, respectively, have bound themselves to each other, and to the federal government of the United States; and by which the federal government is bound to the several states, and to every citizen of the United States.

1. It is a compact; by which it is distinguished from a charter, or grant; which is either the act of a superior to an inferior; or is founded upon some consideration moving from one of the parties, to the other, and operates as an exchange, or sale: but here the contracting parties, whether considered as states, in their politic capacity and character; or as individuals, are all equal; nor is there any thing granted from one to another: but each stipulates to part with, and to receive the same thing, precisely, without any distinction or difference in favor of any of the parties. The considerations upon which this compact was founded, and the motives which led to it, as declared in the instrument itself, were, to form a more perfect union than theretofore existed between the confederated states; to establish justice, and ensure domestic tranquility, between them; to provide for their common defense, against foreign force, or such powerful domestic insurrections as might require aid to suppress them; to promote their general welfare; and to secure the blessings of liberty to the people of the United States, and their posterity.

2. It is a federal compact; several sovereign and independent states may unite themselves together by a perpetual confederacy, without each ceasing to be a perfect state. They will together form a federal republic: the deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements. [1] The extent, modifications, and objects of the federal authority are mere matters of discretion; so long as the separate organization of the members remains, and from the nature of the compact must continue to exist, both for local and domestic, and for federal purposes; the union is in fact, as well as in theory, an association of states, or, a confederacy. [2] The state governments not only retain every power, jurisdiction, and right not delegated to the United States, by the constitution, nor prohibited by it to the states, but they are constituent and necessary parts of the federal government; and without their agency in their politic character, there could be neither a senate, nor president of the United States; the choice of the latter depending mediately, and of the former, immediately, upon the legislatures of the several states in the union.

This idea of a confederate, or federal, republic, was probably borrowed from Montesquieu, who treats of it as an expedient for extending the sphere of popular government, and reconciling internal freedom with external security, as hath been mentioned elsewhere. The experience of the practicability and benefit of such a system, was recent in the memory of every American, from the success of the revolutionary war, concluded but a few years before; during the continuance of which the states entered into a perpetual alliance and confederacy with each other. Large concessions of the rights of sovereignty were thereby made to congress; but the system was defective in not providing adequate means, for a certain, and regular revenue; congress being altogether dependent upon the legislatures of the several states for supplies, although the latter, by the terms of compact, were bound to furnish, whatever the former should deem it necessary to require. At the close of the war, it was found that congress had contracted debts, without a revenue to discharge them; that they had entered into treaties, which they had not power to fulfil; that the several states possessed sources of an extensive commerce, for which they could not find any vent. These evils were ascribed to the defects of the existing confederation; and it was said that the principles of the proposed constitution were to be considered less as absolutely new, than as the expansion of the principles contained in the articles of confederation: that in the latter those principles were so feeble and confined, as to justify all the charges of inefficiency which had been urged against it; that in the new government, as in the old, the general powers are limited, and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdictions. This construction has since been fully confirmed by the twelfth article of amendments, [3] which declares, “that 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.” This article was added “to prevent misconstruction or abuse” of the powers granted by the constitution, [4] rather than supposed necessary to explain and secure the rights of the states, or of the people. The powers delegated to the federal government being all positive, and enumerated, according to the ordinary rules of construction, whatever is not enumerated is retained; for, expressum facit tacere tacitum is a maxim in all cases of construction: it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their rights by implication; nor in any manner whatever by their own voluntary consent, or by submission to a conqueror.

Some of the principal points mutually insisted on, and conceded, by the several states, as such, to each other, were, that representatives and direct taxes should be apportioned among the states, according to a decennial census; that each state should have an equal number of senators; and that the number of electors of the president of the United States, should in each state be equal to the whole number of senators and representatives to which such state may be entitled in the congress; that no capitation or other direct tax shall be laid, unless in proportion to the census; that full faith and credit shall be given in each state to the public acts, records, and proceedings of every other state; that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states; that persons charged with treason, felony, or other crime, in one state, and fleeing from justice to another state, shall be delivered up, on demand of the executive authority of the state from which he fled; that no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned; that the United States shall guarantee to every state in the union a republican form of government, and shall protect each of them against invasion; and, on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence; that amendments to the constitution, when proposed by congress, shall not be valid unless ratified by the legislatures of three fourths of the several states; and that congress shall, on the application of two thirds of the legislatures of the several states, call a convention for proposing amendments, which when ratified by the conventions in three fourths of the states shall be valid to all intents and purposes, as a part of the constitution; that the ratification of the conventions of nine states, should be sufficient for the establishment of the constitution, between the states so ratifying; and lastly, by the amendment before mentioned, it is declared, that 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. Thus far every feature of the constitution appears to be strictly federal.

3. It is also, to a certain extent, a social compact; the end of civil society is the procuring for the citizens whatever their necessities require, the conveniences and accommodations of life, and, in general, whatever constitutes happiness: with the peaceful possession of property, a method of obtaining justice with security; and in short, a mutual defense against all violence from without. In the act of association, in virtue of which a multitude of men form together a state or nation, each individual is supposed to have entered into engagements with all, to procure the common welfare: and all are supposed to have entered into engagements with each other, to facilitate the means of supplying the necessities of each individual, and to protect and defend him. [5] And this is, what is ordinarily meant by the original contract of society. But a contract of this nature actually existed in a visible form, between the citizens of each state, respectively, in their several constitutions; it might therefore be deemed somewhat extraordinary, that in the establishment of a federal republic, it should have been thought necessary to extend its operation to the persons of individuals, as well as to the states, composing the confederacy. It was apprehended by many, that this innovation would be construed to change the nature of the union, from a confederacy, to a consolidation of the states; that as the tenor of the instrument imported it to be the act of the people, the construction might be made accordingly: an interpretation that would tend to the annihilation of the states, and their authority. That this was the more to be apprehended, since all questions between the states, and the United States, would undergo the final decision of the latter.

That the student may more clearly apprehend the nature of these objections, it may be proper to illustrate the distinction between federal compacts and obligations, and such as are social by one or two examples. A federal compact, alliance, or treaty, is an act of the state, or body politic, and not of an individual; on the contrary, the social contract is understood to mean the act of individuals, about to create, and establish, a state, or body politic, among themselves. … Again; if one nation binds itself by treaty to pay a certain tribute to another; or if all the members of the same confederacy oblige themselves to furnish their quotas of a common expense, when required; in either of the cases, the state, or body politic, only, and not the individual is answerable for this tribute, or quota; for although every citizen in the state is bound by the contract of the body politic, who may compel him to contribute his part, yet that part can neither be ascertained nor levied, by any other authority than that of the state, of which he is a citizen. This is, therefore, a federal obligation; which cannot reach the individual, without the agency of the state who made it. But where by any compact, express, or implied, a number of persons are bound to contribute their proportions of the common expense; or to submit to all laws made by the common consent; and where, in default of compliance with these engagements the society is authorized to levy the contribution, or, to punish the person of the delinquent; this seems to be understood to be more in the nature of a social than a federal obligation. … Upon these grounds, and others of a similar nature, a considerable alarm was excited in the minds of many, who considered the constitution as in some danger of establishing a national, or consolidated government, upon the ruins of the old federal republic.

To these objections the friends and supporters of the constitution replied, [6] “that although the constitution would be founded on the assent and ratification of the people of America, ye that assent and ratification was to be given by the people, not as individuals composing one entire nation; but as composing the distinct and independent states, to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves. The act, therefore establishing the constitution, will not,” said they, “be a national but a federal act.

“That it will be a federal and not a national act, as these terms are understood by the objectors, the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is the result neither from the decision of a majority of the people of the union, nor from a majority of the states. It must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent, than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority; in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes; or by considering the will of the majority of the states, as evidence of the will of the majority of the people of the United States. Neither of these rules have been adopted. Each state in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation then the new constitution will be a federal, and not a national, constitution.

“With regard to the sources from which the ordinary powers of government are to be derived. The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. So far the government is national, not federal. The senate, on the other hand, will derive its powers from the states, as political and co-equal societies; and these will be represented on the principle of equality in the senate, as under the confederation. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the president is to be made by the states, in their political character. The votes allotted to them are in a compound ratio, which considers them partly as distinct and co-equal societies; partly as unequal members of the same societies. The eventual election again is to be made, by that branch of the legislature which consists of the national representatives: but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and co-equal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many federal, as national features.

“The difference between a federal and national government, as it relates to the operation of the government, is, by the adversaries of the plan of the convention, supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities. On trying the constitution by this criterion, it falls under the national, not the federal character, though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. In some instances the powers of the federal government, established by the confederation, act immediately on individuals: in cases of capture, of piracy, of the post office, of coins, weights, and measures, of trade with the Indians, of claims under grants of land by different states, and, above all, in the cases of trials by courts martial in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the confederation operate immediately on the persons and interests of individual citizens. The confederation itself authorizes a direct tax to a certain extent on the post-office; and the power of coinage has been so construed by congress, as to levy a tribute immediately from that source also. The operation of the new government on the people in their individual capacities, in its ordinary and most essential proceedings, will, on the whole, in the sense of its opponents, designate it, in this relation, a national government.

“But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere. In this relation then the government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects, only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure the impartiality.

“If we try the constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly national, nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in a majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national, and advances towards the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal, and partakes of the national character.

“The proposed constitution, therefore, even when tested by the rules laid down by its antagonists, is in strictness neither a national nor a federal constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal, and partly national; in the operation of those powers, it is national, not federal; in the extent of them, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal, nor wholly national.”

4. It is an original compact; whatever political relation existed between the American colonies, antecedent to the revolution, as constituent parts of the British empire, or as dependencies upon it, that relation was completely dissolved and annihilated from that period. … From the moment of the revolution they became severally independent and sovereign states, possessing all the rights, jurisdiction, and authority, that other sovereign states, however constituted, or by whatever title denominated, possess; and bound by no ties but of their own creation, except such as all other civilized nations are equally bound by, and which together constitute the customary law of nations. A common council of the colonies, under the name of a general congress, had been established by the legislature, or rather conventional authority in the several colonies. The revolutionary war had been begun, and conducted under its auspices; but the first act of union which took place among the states after they became independent, was the confederation between them, which was not ratified until March 1781, near five years from the commencement of their independence. The powers thereby granted to congress, though very extensive in point of moral obligation upon the several states, were perfectly deficient in the means provided for the practical use of them, as has been already observed. The agency and cooperation of the states, which was requisite to give effect to the measures of congress, not infrequently occasioned their total defeat. It became an unanimous opinion that some amendment to the existing confederation was absolutely necessary, and after a variety of unsuccessful attempts for that purpose, a general convention was appointed by the legislatures of twelve states, who met, consulted together, prepared, and reported a plan, which contained such an enlargement of the principles of the confederation, as gave the new system the aspect of an entire transformation of the old. The mild tone of requisition was exchanged for the active operations of power, and the features of a federal council for those of a national sovereignty. These concessions it was seen were, in many instances, beyond the power of the state legislatures, (limited by their respective constitutions) to make, without the express assent of the people. A convention was therefore summoned, in every state by the authority of their respective legislatures, to consider of the propriety of adopting the proposed plan; and their assent made it binding in each state; and the assent of nine states rendered it obligatory upon all the states adopting it. Here then are all the features of an original compact, not only between the body politic of each state, but also between the people of those states in their highest sovereign capacity.

Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question; [7] as a social compact it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty, or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government. The few particular cases in which he submits himself to the new authority, therefore, ought not to be extended beyond the terms of the compact, as it might endanger his obedience to that state to whose laws he still continues to owe obedience; or may subject him to a double loss, or inconvenience for the same cause.

And here it ought to be remembered that no case of municipal law can arise under the constitution of the United States, except such as are expressly comprehended in that instrument. For the municipal law of one state or nation has no force or obligation in any other nation; and when several states, or nations unite themselves together by a federal compact, each retains its own municipal laws, without admitting or adopting those of any other member of the union, unless there be an article expressly to that effect. The municipal laws of the several American states differ essentially from each other; and as neither is entitled to a preference over the other, on the score of intrinsic superiority, or obligation, and as there is no article in the compact which bestows any such preference upon any, it follows, that the municipal laws of no one state can be resorted to as a general rule for the rest. And as the states, and their respective legislatures are absolutely independent of each other, so neither can any common rule be extracted from their several municipal codes. For, although concurrent laws, or rules may perhaps be met within their codes, yet it is in the power of their legislatures, respectively to destroy that concurrence at any time, by enacting an entire new law on the subject; so that it may happen that that which is a concurrent law in all the states today may cease to be law in one, or more of them tomorrow. Consequently neither the particular municipal law of any one, or more, of the states, nor the concurrent municipal laws of the whole of them, can be considered as the common rule, or measure of justice in the courts of the federal republic; neither hath the federal government any power to establish such a common rule, generally; no such power being granted by the constitution. And the principle is certainly much stronger, that neither the common nor statute law of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption: which, not being permitted by the original compact, by which the government is created, any attempt to introduce it, in that or any other mode, would be a manifest breach of the terms of that compact.

Another light in which this subject may be viewed is this. Since each state in becoming a member of a federal republic retains an uncontrolled jurisdiction over all cases of municipal law, every grant of jurisdiction to the confederacy, in any such case, is to be considered as special, inasmuch as it derogates from the antecedent rights and jurisdiction of the state making the concession, and therefore ought to be construed strictly, upon the grounds already mentioned. Now, the cases falling under the head of municipal law, to which the authority of the federal government extends, are few, definite, and enumerated, and are all carved out of the sovereign authority, and former exclusive, and uncontrollable jurisdiction of the states respectively: they ought therefore to receive the strictest construction. Otherwise the gradual and sometimes imperceptible usurpations of power, will end in the total disregard of all its intended limitations.

If it be asked, what would be the consequence in case the federal government should exercise powers not warranted by the constitution, the answer seems to be, that where the act of usurpation may immediately affect an individual, the remedy is to be sought by recourse to that judiciary, to which the cognizance of the case properly belongs. Where it may affect a state, the state legislature, whose rights, will be invaded by every such act, will be ready to mark the innovation and sound the alarm to the people: and thereby either effect a change in the federal representation, or procure in the mode prescribed by the constitution, further “declaratory and restrictive clauses,” by way of amendment thereto. An instance of which may be cited in the conduct of the Massachusetts legislature: who, as soon as that state was sued in the federal court, by an individual, immediately proposed, and procured an amendment to the constitution, declaring that the judicial power of the United States shall not be construed to extend to any suit brought by an individual against a state.

5. It is a written contract; considered as a federal compact, or alliance between the states, there is nothing new or singular in this circumstance, as all national compacts since the invention of letters have probably been reduced to that form: but considered in the light of an original, social, compact, it may be worthy of remark, that a very great lawyer, who wrote but a few years before the American revolution, seems to doubt whether the original contract of society had in any one instance been formally expressed at the first institution of a state. [8] The American revolution seems to have given birth to this new political phenomenon: in every state a written constitution was framed, and adopted by the people, both in their individual and sovereign capacity, and character. By this means, the just distinction between the sovereignty, and the government, was rendered familiar to every intelligent mind; the former was found to reside in the people, and to be unalienable from them; the latter in their servants and agents: by this means, also, government was reduced to its elements; its object was defined, its principles ascertained; its powers limited, and fixed; its structure organized; and the functions of every part of the machine so clearly designated, as to prevent any interference, so long as the limits of each were observed. The same reasons operated in behalf of similar restrictions in the federal constitution. Whether considered as the act of the body politic of the several states, or, of the people of the states, respectively, or, of the people of the United States, collectively. Accordingly we find the structure of the government, its several powers and jurisdictions, and the concessions of the several states, generally, pretty accurately defined, and limited. But to guard against encroachments on the powers of the several states, in their politic character, and of the people, both in their individual and sovereign capacity, an amendatory article was added, immediately after the government was organized, declaring; that 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. And, still further, to guard the people against constructive usurpations and encroachments on their rights, another article declares; that the enumeration of certain rights in the constitution, shall not be construed to deny, or disparage, others retained by the people. The sum of all which appears to be, that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.

The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting mind; power, when undefined, soon becomes unlimited; and the disquisition of social rights where there is no text to resort to, for their explanation, is a task, equally above ordinary capacities, and incompatible with the ordinary pursuits, of the body of the people. But, as it is necessary to the preservation of a free government, established upon the principles of a representative democracy, that every man should know his own rights, it is also indispensably necessary that he should be able, on all occasions, to refer to them. In those countries where the people have been deprived of the sovereignty, and have no share, even in the government, it may perhaps be happy for them, so long as they remain in a state of subjection, to be ignorant of their just rights. But where the sovereignty is, confessedly, vested in the people, government becomes a subordinate power, and is the mere creature of the people’s will: it ought therefore to be so constructed, that its operations may be the subject of constant observation, and scrutiny. There should be no hidden machinery, nor secret spring about it.

The boasted constitution of England, has nothing of this visible form about it; being purely constructive, and established upon precedents or compulsory concessions betwixt parties at variance. The several powers of government, as has been elsewhere observed, are limited, though in an uncertain way, with respect to each other; but the three together are without any check in the constitution, although neither can be properly called the representative of the people. And from hence, the union of these powers in the parliament hath given occasion to some writers of that nation to stile it omnipotent: by which figure it is probable they mean no more, than to inform us that the sovereignty of the nation resides in that body; having by gradual and immemorial usurpations been completely wrested from the people.

6. It is a compact freely, voluntarily, and solemnly entered into by the several states, and ratified by the people thereof, respectively: freely, there being neither external, nor internal force, or violence to influence, or promote the measure; the United States being at peace with all the world, and in perfect tranquility in each state: voluntarily, because the measure had its commencement in the spontaneous acts of the state-legislatures, prompted by a due sense of the necessity of some change in the existing confederation: and, solemnly, as having been discussed, not only by the general convention who proposed, and framed it; but afterwards in the legislatures of the several states, and finally, in the conventions of all the states, by whom it was adopted and ratified.

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Clyde Wilson was a professor of history but is recovering nicely, thank you. He is the editor of The Papers of John C. Calhoun.

Born in St. George, Bermuda, Tucker traveled to Virginia to study law at the College of William and Mary in 1772, where he was a member of the F.H.C. Society, and was approved for the bar on April 4, 1774. He then settled permanently in Williamsburg and began practice in the county courts. He served in the Virginia militia and cavalry in the American Revolutionary War. During the revolution, he was a colonel in the militia and later commanded the Chesterfield Militia, and saw action at the Battle of Guilford Court House and the Siege of Yorktown. In 1796, Tucker wrote a controversial pamphlet addressed to the General Assembly of Virginia which stated that the abolition of slavery was of “great importance for the moral character of the citizens of Virginia.” Read Tucker’s full bio at History.org

NOTES:

[1.]Vattel.

[2.]Federalist, No. 9.

[3.]Editor’s note: Here, and throughout, Tucker, somewhat disconcertingly, refers to the Tenth Amendment as “the twelfth article of the amendments.” At the time he wrote his lectures, there were twelve proposed amendments current, two of which, however, were never ratified.

[4.]Editor’s note: Here Tucker quotes from the preamble of the congressional resolution proposing the amendments which became known as the “Bill of Rights.”

[5.]Vattel.

[6.]Editor’s note: From this point to the end of section 3, Tucker quotes directly from The Federalist, No. 39.

[7.]Vattel.

[8.]Blackstone.

Great things are happening across America. The actions of a few brave and noble state legislators and state officers around the Republic may well demonstrate that the most important election in the nation may not be the run for the President of The United States. The most important upcoming elections for all Americans may be those for their state House of Representatives, State Senate, Attorney General and their Governor’s races. When this country was created the office of the President was intended to have a relatively minor influence on the citizens of each state. It appears that some legislators and state Attorney Generals are dusting off the Constitution and working to get their house in order.

In Oklahoma the state legislature has a Bill pending to re-assert their state sovereignty.  The short caption of the bill reads:

“Joint Resolution claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; and directing distribution.”

Essentially, Oklahoma has asserted that the federal government and those in Washington D.C. are no longer going to dictate the way they run their state education, industries, National Guard, state police and they are especially not going to run rough shod over their state legislature. Oklahoma has told Washington, enough is enough. GET OUT!

In Montana the Governor and the State Legislature are reasserting their sovereignty and telling the Director of Homeland Security they have no constitutional authority to force the National ID on its citizens.

In New Hampshire a group of legislators are diligently working to introduce sound money backed by gold and silver as a state currency.

In Nevada the State Legislature rules the Federal Reserve Corporation unconstitutional.

It is All About Sovereignty

When we look at the source of the problem, most every problem in America today stems from a failure to respect and understand sovereignty: national, state, local and individual. The national police state and (FBI, DEA, CIA, OSHA, Corp of Engineers, Homeland Security, IRS, Fish and Wildlife, EPA, Fusion Centers, etc., etc.) runs rough shod over the state police, local sheriff’s offices and citizens in each state. The dire problems in this country were created by unconstitutional, unconscionable actions of the U. S. Congress. These agencies undermine the liberties of all Americans, violate the 10th Amendment to the U.S. Constitution and undermine the sovereignty of each state. Take a look at a list of all Federal Agencies. You will not believe it (http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml ).

The financial problems created by having to feed this machine seem so complex and overwhelming that most Americans have developed a sense of hopelessness and despair. When it comes to dealing with issues such as the national debt, the growing federal bureaucracy and the national police state, the citizens and states have no viable avenue for redress. When citizens have more fear of the IRS and the federal government than of dying, we have a problem.

When it comes to protecting one citizen from another, the sheriff of each county is the legitimate constitutional protector of the rights and liberties of the citizens. Their offices are charged with both protecting the liberty of the citizens and prosecuting those who commit criminal acts against another citizen. Should the sheriffs’ office ever engage in violating the rights of its citizenry, the citizens have immediate recourse by calling a town meeting or replacing the sheriff at the next election. The sheriff is immediately answerable to those who entrust him with such power. This is the proper order of things.

With a Federal Police state or federal regulatory bureaucracy, there is no redress for the citizens of the state. Can one vote out the director of the US Army Corps of Engineers or the head of the Internal Revenue Service in Washington D.C.? Write your Congressman and see what kind of results you get. Additionally, the U.S. Congress and its agencies treat our states and city municipalities as low level extensions of Congress. They have forgotten that, THE STATES CREATED THE CONGRESS and gave them their limited powers. The national police and federal regulatory agencies routinely undermine the citizen’s inalienable right of self defense by placing limitations on gun ownership. The federal government has undermined the citizen’s right of freedom and life through the personal income tax and regulation of every area of one’s life or business. The average state citizen now works nearly 4 months of the year for the federal government. The sad irony is, we created the federal government to protect our liberty and privacy and now it is the federal government we need protection from. This is not how the Founders intended.

Debt, Taxes and Inflation

In order to pay for the federal behemoth, the U.S. Congress and Federal Reserve Corporation have saddled the American people with an unrecoverable $13 trillion of debt. Half of this debt was accumulated in the past 8 years. This is now expected to be repaid by our children and grandchildren. No generation has the right to pass on a debt to the next generation.

Unfortunately, the U.S. treasury is empty, we are taxed until we cannot be taxed anymore and the federal government has borrowed until it cannot borrow anymore. According to the former Controller General of the United States David Walker, the U.S. has another $50 trillion in social service, Medicare and Medicaid obligations coming due over the next 30 years. http://www.federalbud….

Walker says, the U.S. Government is already insolvent and operates only off of borrowed money. The income taxes collected are primarily paying the $1.5 billion a day interest payment. Assuredly, he states, at our present course the U.S. Government will cease to operate.

Privacy

Did you know that the federal government has passed legislation requiring every citizen to obtain a National Id Card? The little known legislation is known as the Real ID Act was passed into law by Congress in 2003 and began being implemented in May of 2008 (http://www.realidstates.com/category/real-id-act/ ). Florida, my home state, implemented the program in January 2010. The national ID Card is a centralized federal government file database on every American. This legislation allows the director of the Department of Homeland Security to track all of your financial transactions (i.e. political affiliations, social clubs, service clubs, gun ownership, types of guns purchased, places traveled) health records, biometric data, blood type, DNA information and social security number and will have the ability to be directly connected to your ATM or Debit Card.

People often say that if you have nothing to hide why should you care?

First of all, it smacks of a modern version of the required papers required by the Gestapo in Nazi Germany and secondly the government was created to protect our privacy not invade it. Read a little on the Nazi police state for a brief history lesson. Also, I am uncomfortable knowing that my small children, for their entire life may have every doctor visit, everywhere they travel and everything they ever purchase collected, maintained and analyzed by the government official in a federal government database.

So with all of this, what can possibly be the good news?

The Solution

The good news is that our founding fathers anticipated all of this and they gave us the ability at any time to bring the house in order. When this Republic was founded, we referred to one another as Floridians, Alabamans, Georgians, and Virginians.

When referring to the states collectively it was states the “United States are” …

Today the federal government would have us to believe the “United States is” one large collectivist national state, run and operated out of Washington D. C.

This issue probably would not be resurrecting itself if it were not for Washington seeking to strip our liberties and God given rights from us, enslave us through taxation, burden our children with debts, and collapse the dollar we trade in until our entire nations wealth disappears through inflation. As a result, few leaders in Washington can be trusted. Our founding fathers repeatedly warned us to not trust those in power. We must follow Oklahoma’s lead, dust off the Constitution, re- assert our state sovereignty and turn to ourselves to preserve our liberties and our prosperity.

Our solution will be a long arduous battle that begins at the local level, then state level, one legislator at a time. Eventually we will have a legislature and governor willing to stand up to the federal leviathan. During the process they will be under tremendous pressure to abandon the course. Their careers will be threatened, if they own businesses they will be threatened with loss of business or contracts, they will be ridiculed by the media as anachronistic and the weight of their party will bear on each of them. There are trillions of dollars being spent at the federal trough and the pigs will not leave until they are starved out. This plan will take governors calling governors and legislators calling legislators. We must follow the Founders advice and the states must re-assert their sovereignty. The states must refuse to allow the US Government to continue to run roughshod over their legislatures. We must do as Oklahoma has done, tell them enough is enough.

We need to find, educate and elect officials who think deeply about the principles this county was founded upon. Leaders that understand that taking office is a burden not a popularity contest. We need leaders that do not allow themselves to become compromised. We need leaders with the courage of their convictions to tell those in Washington D.C. that our state is not going to take it anymore. As Oklahoma has said, enough is enough. We are here to take it back!

Most Americans are unaware but a Constitutional Crisis of immense proportions looms in our near future, and the early shots have already been fired. No, I’m not referring to the Obama birth certificate controversy; I’m referring to the fundamental battle for freedom and liberty based on the uniquely American experiment of Federalism. Federalism is the sharing of power between a federal government and the various state governments, and this foundation is at the very heart of the battle.

Through recent actions, the federal government has demonstrated that absolute power is its sole desire. They have ignored the message delivered through tea parties and have now directly engaged in political battles with state governments empowered by their citizenry. If “we the people” lose these battles, ALL power will centralize in Washington D.C. and the dynamics of our free country will rapidly change from a government that serves the people to a government that dictates to the people. The crisis ultimately revolves around this question:

“Who decides the constitutionality of a federal law?”

The most visible battle centers around the unconstitutional health care bill passed in March 2010. But as this one proceeds, there are other Constitutional battles cueing up in the pipeline. Many states where the population embraces freedom have begun to draft legislation that challenges federal authority on matters that the federal government has already overstepped their authority; and, proactive states are preparing legislation in preparation for future offenses. Some examples of these battles:

• Federal Health Care legislation designed to redistribute wealth and make states and people massively dependent on the federal government
• Federal Cap and Trade legislation designed to foster more state dependence of federal funds by making them insolvent through excessive taxation
• Federal Amnesty legislation designed to increase the voter base for federal level redistribution schemes.
• Federal Financial Reform legislation designed to acquire more economic power at the federal level to use a coercive tools against states and the people
• State Firearm Legislation that denies federal authority over firearms produced within a states; this is designed to proactively challenge the federal governments grasp on firearm laws by eliminating the “commerce clause” argument.

Each one of these battles between states and federal governments will test the very foundation of federalism upon which our great country has prospered in relative political, economic, and individual freedom. If the pillar of Federalism is to fall, the entire house of cards of the American experiment will fall with it, and a centralized authority will be formed. Your children’s future will be sealed as servants to corrupt politicians in Washington D.C.

Will the Supreme Court uphold the Constitution?

The first question that must be resolved is “will the Supreme Court uphold the Constitution?” Almost half of the state governments are participating in a lawsuit claiming that the health care bill is unconstitutional. One of the multiple points of contention has to do with the federal governments new power to force a private citizen, under penalty of law, to purchase a product; clearly unconstitutional and something that has never been demanded by federal law before.

This is the federal court’s chance to clearly reassert the state’s constitutionally empowered jurisdiction and put the federal government back under the chains of federalism as defined by the Constitution. If they are willing and able to do this in no uncertain terms, we may still avoid a full constitutional crisis. If, on the other hand, the federal court sides with the federal legislators, then they will have missed the golden opportunity to restore stability and liberty to this country and will have placed us on a road to a government of absolute power.

Past rulings indicate that judges are, as Jefferson warned, simply people too; with political ambitions and a willingness to apply arbitrary opinions over rule-of-law. In fact, Supreme Court Justice Sotomayor, the most recent Supreme Court appointee, publicly argued the merits of rulings based on social justice over rule-of-law. Can an idea be any more dangerous to liberty than that?

In the 1942 case Wikard v. Filburn, the Supreme Court ruled that a farmer growing wheat, on his own property, for his own consumption, is subject to federal laws. The ruling was based on a laughable “commerce clause” interpretation that claimed that since the farmer was NOT participating in interstate commerce then the farmer affected interstate commerce.  This kind of circular thinking was used to steal the freedom and liberty from this farmer so that federal power might be increased. It was an impossible step of logic, but rulings like this are used as a precedent for incredible interpretations of the enumerated powers in the Constitution.

What precedent is set if the health care legislation is deemed constitutional and the federal government immediately acquires “constitutional” power to mandate private citizen purchases? No doubt, this precedent will be used to force you to purchase all kinds of products that “partner” corporations might offer. What warped definition of “liberty” encompasses this concept?

We can hope the federal courts make the correct ruling here, but this one is simply out of our hands.

Who has the final say on the constitutionality of federal laws?

If the Supreme Court rules in favor of the federal government and deems an obviously unconstitutional law to be constitutional then tensions between the states and the federal government will increase significantly. At this point, the Constitutional crisis will expose its head for all to see, and the fundamental question at the heart of it all is:

“Who decides the constitutionality of a federal law?”

The constitution does not answer this question. The precedent is that the Supreme Court rules on these. But, what happens when “we the people” judge the Supreme Court to be part of the problem?

First, consider that the common idea is that the Supreme Court offers the final say on constitutional. This is partially true given past history and other Supreme Court rulings. But take notice that historically the Supreme Court assumed this power for itself; it was not allocated through the Constitution. This power of final authority was first considered with Marbury v. Madison in 1803 and accrued through other cases presided over by Supreme Court Justice Marshal, a well-known champion of centralized federal power. It’s easy to see the conflict of interest when a federal judicial branch deems itself to hold absolute authority over the constitutionality of federal laws and federal executive actions. Over time a federal court will become more and more emboldened to ignore the states and “we the people” and rule in favor of more centralized federal power.

It is important to realize that the Constitution is silent on this and does not provide the answer. This was intentional, because on all matters “we the people” are the final authority. Giving the federal judicial branch the supreme power of determination institutionalizes an obvious danger to freedom and liberty. This danger was described by Jefferson:

“….To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power is more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots….”

In 1798, Jefferson and Madison authored the Virginian and Kentucky Resolutions in response to the Alien and Sedition acts. The resolution argued that unconstitutional federal bills that became federal law were null and void and of no effect. According to Jefferson and Madison, states were to be the ultimate arbiter on which laws were constitutional and which were not. By nullifying unconstitutional laws state governments need not ask permission of federal courts to govern their sovereign states.

The Crisis Resolved

So, what’s it going to be?

Freedom through decentralized government in which the people and the states determine the constitutionality of federal laws. With this choice, federalism is restored and sovereign states each govern themselves locally through rule-of-law.

Or, servitude to a centralized government in which all three federal branches work together to pass laws, enforce laws, and judge their own laws constitutional. With this choice, the Constitution and federalism are destroyed, absolute power is centralized and rule-of-men will dominate law.

This question is ultimately answered by the will of the people. We will decide and it will have immeasurable impact on our country’s future.

Brian Roberts [send him email] is the State Chapter Coordinator for the Texas Tenth Amendment Center

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

The debate over President Obama’s so-called healthcare plan has once again put the Constitution in the spotlight. Individuals from both sides of the debate are making some constitutional assertions that have no basis in fact. One of these is the claim that in adopting the Constitution, the States “surrendered” some of their sovereign powers to the federal government.

In reality, the several States did not surrender any powers; they delegated a portion of their powers to the federal government. Since the powers of the federal government come from a delegation of power, not a surrender of power, the States can amend or rescind their grant of power anytime they please through the amendment process.

A review of the ratification documents of the individual States shows that the principle of “delegated powers” was first and foremost in the minds of their delegates and the cornerstone of their requests for amendments to the proposed constitution.

• On September 28, 1787, the proposed constitution was transmitted by Congress to the several States for ratification.
• On February 6, 1788, Massachusetts, the sixth State to ratify the proposed constitution, was the first State to formally request amendments to the document. The first five States basically ratified the document unconditionally. Their ratification document stated, in part:

“[I]t is the opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.

First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.”

It is important to note that Massachusetts was requesting amendments to restrain federal power and preserve state sovereignty.

• The New Hampshire Convention—June 21, 1788.

“First That it be Explicitly declared that all Powers not expressly& particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them, Exercised.—”

• The Virginia Convention—June 27, 1788.

“First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the foederal government.”

• The New York Convention—July 26, 1788.

“That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness, that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”

• The North Carolina Convention—August 1, 1788 (does not officially ratify until November 21, 1789).

“I. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”

• The Rhode Island Convention—May 29, 1790.

“1st The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this constitution expressly delegated to the United States.”

John Taylor of Caroline, Tyranny Unmasked

“This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”

• On June 8, 1789, James Madison introduced a series of proposals in the House of Representatives that would eventually become the Bill of Rights. His initial proposal for an amendment based on these proposals read:

“The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively.”

This proposal was slightly modified during the debates in Congress and became the Tenth Amendment. It was ratified by the States on December 15, 1791, including South Carolina.

The Tenth Amendment etched in stone the principle that the powers of the federal government come from a delegation of power—not a surrender of power.

Bob Greenslade [send him email] has been writing for www.thepriceofliberty.org since 2003.

“Woe to you Scribes and Pharisees—hypocrites!”
–Jesus, Matthew 23:29

Akhil Reed Amar, professor of Constitutional Law at Yale University, and recognized “authority” on the Constitution among his peers, is author of the book America’s Constitution. However this is one book that you definitely can’t judge by its cover; for it does not describe the United States Constitution as written according to the intentions of its original Framers and ratifiers, so much as according to the intentions of Amar himself – thus prompting me to re-name his book as “Amar, Akhil’s Constitution.”

While Amar does admit that the states were each sovereign nations unto themselves prior to ratifying the Constitution, he claims that ratification ended their sovereignty, “merging” them into one single nation– much as one would merge several corporations to form a single conglomerate. In his own words: “[T]he United States did not become an indivisible nation prohibiting unilateral state secession – the crux of the Gettysburg contest – until 1788.” (1)

We find Amar’s entire explanation of precisely how the Constitution expresss this intent, in the following passage:

In dramatic contrast to Article VII–whose unanimity rule that no state can bind another confirms the sovereignty of each state prior to 1787 –Article V does not permit a single state convention to modify the federal Constitution for itself. Moreover, it makes clear that a state may be bound by a federal constitutional amendment even if that state votes against the amendment in a properly convened state convention. And this rule is flatly inconsistent with the idea that states remain sovereign after joining the Constitution, even if they were sovereign before joining it. Thus, ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence. (2)

Here, Amar presumes that the states knowingly, willingly and voluntarily (and above all, permanently) surrendered themselves to a national Union, in which they could be individually “bound” to the Constitution by force — rather than simply by voluntary agreement, which he freely admits was the case under the 1781 Confederation. However, Amar gives absolutely no evidence to support this presumption. Certainly we find no expression of any state relinquishing its sovereignty– or authorizing coercive force against it— within the four corners of the Constitution itself, or any pertinent document written prior to it. Indeed, the term “nation” is never even once mentioned; rather, the United States is only referenced as “the Union.”

On the contrary, not only does the Constitution (or any other document) nowhere express this intent between the parties to it (i.e. the individual states), but in fact implies the opposite intent, naming many limitations on federal powers— all of which would be entirely subjective and meaningless, without a state’s sovereign power to enforce them against a federal majority. In short, a national Constitution, would be no Constitution.

Meanwhile numerous other documents emphatically express that the Constitution strictly describes a voluntary union, rather than a mandatory (i.e. national) one. Primary among these was The Law of Nations, in which Vattel explains that several nations can unite while still remaining sovereign:

Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill engagements which he has voluntarily contracted. (3)

Here we see, that as with the Articles of Confederation before it, a Constitutional republic does not require any state to surrender its sovereignty to form “one nation.” Rather, here we see additional precedent that the Constitution could easily provide the federal government with additional powers to those delegated by the Articles of Confederation, while still remaining 100% voluntary—as opposed relinquishing sovereignty of the individual states; this would indeed be extreme indeed, defeating the entire purpose of achieving it in the first place.

Additionally, each state, in being founded upon democratic principles, was popularly sovereign: i.e. its People (i.e. its popular majority of voters) was its ruling power – not its government, or any other elite body (as was the case with many other nations). Therefore, no state could have properly relinquished its sovereignty, without the express permission of its People. This point is key, since the people of the states never authorized the Constitution, at all – and thus they could not have authorized the relinquishment of their respective sovereignty.

On the contrary, the Philadelphia Convention was only authorized by the People of each state, in order to modify the then-current Articles of Confederation – not to replace them with an entirely new document, or form a new union: however, the Constitution did both. Therefore, even if the Framers of the Constitution had intended for the Constitution to relinquish the sovereignties of the several states, and converge them into one sovereign nation (which they didn’t, as we’ll see below), then this would have been wholly null and void, by the simple lack of express intent by the ruling sovereigns themselves: the Peoples of the respective states. For sovereign nations, by definition, do not lose their sovereignty by act of omission, i.e. simply by failing to expressly retain it in their political dealings with other nations; rather, relinquishing national sovereignty requires a clear and express statement that explicitly states both the relinquishment and the details thereof. This is exemplified by the Paris Peace Treaty of 1783, whereby Great Britain expressly relinquished its claim to its former colonies:

His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof. [Emphasis added]

Without such a requirement, any nation could legally conquer a weaker one under the claim of “national authority–” and then legally validate the claim, via the catch-all that any pesky legal details were “settled on the battlefield.” (Strangely, this exact same claim was not tolerated for Saddam Hussein when he conquered the sovereign nation of Kuwait; but it continues to work just fine for Abraham Lincoln in conquering the sovereign nations of the individual American states).

In addition to the Constitution itself lacking any express intent to relinquish sovereignty, such intent is expressly denied in the various other documents written both before and after the Constitution was ratified by the states. These will be examined separately in pre-ratification and post-ratification documents, though neither treatment is exhaustive.

Pre-ratification Documents: Federalist

State sovereignty is expressly retained under the Constitution, according to several of the Federalist papers; these were the various companion-documents to the Constitution, which expressed its intended meaning to the sovereign Peoples of the individual states. This therefore expressed the intentions between these Peoples, as the original terms of the constitutional agreement.

Federalist No. 39 is the most direct and detailed assurance of this to the people of each state, holding that that “the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious:”

But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the federal form, which regards the Union as a Confederacy of sovereign states; instead of which, they have framed a national government, which regards the Union as a consolidation of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision….

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.

Here, we see that the will of the majority of the whole people of the United States would not bind the minority, in the same manner that the majority in each state binds the minority within it; nor would the will of the majority of the states bind the minority of states. Rather, the states under the Constitution would continue to form so many independent States– not one aggregate nation.

This– in dire contrast to Amar’s validation of popular myths– was the context in which the Peoples of each individual state ratified the Constitution: i.e. under the expressed intention that each state would retain its respective national sovereignty, and remain individually and popularly sovereign thereafter.

While Madison does express in Federalist No. 39, that the Constitution was indeed “partly federal and partly national,” this was prefaced by the above—and afterward specified in the context that “in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.” However if the Constitution had indeed surrendered the national sovereignty of the individual states, then it would be “wholly national,” in every sense other than name– thus making the federal government the final judge of its own powers; and hence this “federal” nature and limitations would be thus wholly subject to the whims of the federal policy-makers (as they are today).

Likewise explicit is Federalist No. 33, in which Alexander Hamilton undermines any national context via the so-called “Supremacy Clause” in Article VI of the Constitution, which many nationalists claim as “absolute proof” of such:

…it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

In other words, the People of each state retained the sovereign power to refuse to obey federal laws; for sovereign rule, by definition, is always absolute. Therefore, conversely, if the federal government (or People) was the sovereign, then it could not technically “usurp” powers, but would again simply be the sole and final judge of its own powers.

In conclusion, we see that the People of each state ratified the Constitution only with the express sovereign intention, that they would retain their sovereignty in the constitutional union, as before it. While, as mentioned in the Law of Nations, they may have delegated additional powers to the federal government to those allowed previously under the Articles of Confederation, there is no reason to believe that this would be any less voluntary among the individual states; again as stated in Law of Nations, such joint deliberations would not impair the sovereignty of each member, but only put some voluntary restraint on the exercise of it as agreed (also as under the Articles of Confederation).

Post-ratification Documents

Shortly after the Constitution was ratified, Madison and Jefferson were particularly explicit in the 1799 Virginia Resolutions and 1798 Kentucky Resolutions, respectively, that the states had each retained their national sovereignty under the Constitution. While less persuasive, due to their timing, than pre-ratification documents, they do provide testimony of the Founders and Framers (specifically the key Framer, Madison) regarding the Constitution’s intended meaning.

In the latter document, Jefferson expressly states the following:

Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Once again, this literally defines each state as sovereign; for if the Union were in fact one sovereign nation, then the states indeed would have thus been “united on the principle of unlimited submission to their general government.”

Meanwhile in the Virginia Resolutions, Madison likewise expresses similar sentiments:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Madison continued even more explicitly, in his 1800 Report on the Virginia Resolutions:

It is indeed true that the term “states” …means the people composing those political societies, in their highest sovereign capacity….the Constitution was submitted to the “states” in that sense the “states” ratified it; and in that sense of the term “states,” they are consequently parties to the compact from which the powers of the federal government result…. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity…. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition…. However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

Here Madison makes absolutely and unambiguously clear, that the sovereign will of the People of each state, wholly supersedes any power of the federal government—at least within that state’s territorial boundaries. Otherwise, once again the federal government could simply construe the Constitution as it pleased, and simply claim to respect its limitations– or in fact say anything at all; for without sovereign recourse, the individual states would be wholly powerless against the federal majority.

Unfortunately, this is the federal policy under which we now live; and which was instituted by the regime-change that occurred via the “Gettysburg Contest” as Amar terms it—but which is more popularly known as “the American Civil War,“ in which the federal officials deliberately killed 300,000 state-citizens who resisted its claims of national authority over them, brutalizing the individual states and their 8 million inhabitants (100 million in modern numbers) into submission, and suppressing the truth through censorship in order to re-write history.

Pundits like Amar simply serve as shills and lackeys to continue this suppression, by lending their professional credentials to support and validate the federal government’s version of truth and history– such as when he claims that “ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence.” As we see above, this is utterly false: since the states never gave up their sovereignty (and in fact expressly retained it); however Amar’s claims lend credence to those of the current regime, through his cloak of neutrality—as well as his credentials, and related betrayal of professional ethics and public trust.

In order to repair the damage done to the Union—and restore liberty– we must first correct the breaches in the truth; and Amar’s claim is the key falsehood in Constitutional law and history, which must be corrected before the remainder of the Constitution can be recognized and enforced.

In short, the individual states are sovereign nations, by law; meanwhile the United States has no sovereign power of its own.

Brian McCandliss is a business and economics graduate of Liberty University in Lynchburg, VA, a law student, and a businessman in Detroit, Michigan.

References

1. Amar, Akhil Reed. America’s Constitution, pp. 38-39.
2. The David C. Baur Lecture: “Abraham Lincoln And The American Union,” by Akhil Reed Amar
3. Vattel, Emerich. The Law of Nations, Book I,§10. “Of states forming a federal republic.”

Editor’s Note: Samuel Adams, American Patriot and Revolutionary Leader, was born on September 27, 1722. In celebration of his birth, we present the following letter, sent by him to Elbridge Gerry, on August 22, 1789.

I wrote to you hastily two days ago, and as hastily ventured an Opinion concerning the Right of Congress to control a Light-house erected on Land belonging to this sovereign and independent State for its own Use and at its own Expense.

I say sovereign and independent, because I think the State retains all the Rights of Sovereignty which it has not expressly parted with to the Congress of the United States–a federal Power instituted solely for the Support of the federal Union.

The Sovereignty of the State extends over every part of its Territory. The federal Constitution expresses the same Idea in Sec. 8, Art. 1.

A Power is therein given to Congress “to exercise like Authority,” that is to exercise exclusive Legislation in all Cases whatsoever, “over all places purchased by the Consent of the Legislature in which the same shall be, for the Erection of Forts, Magazines, and other needful Buildings,” among which Light-houses may be included.

Is it not the plain Conclusion from this Clause in the Compact, that Congress have not the Right to exercise exclusive Legislation in all Cases whatsoever, nor even to purchase or control any part of the Territory within a State for the Erection of needful Buildings unless it has the Consent of its Legislature.

If there are any such Buildings already erected, which operate to the General Welfare of the U S, and Congress by Virtue of the Power vested in them have taken from a State for the general Use, the necessary Means of supporting such Buildings it appears to be reasonable & just that the U S should maintain them; but I think that it follows not from hence, that Congress have a right to exercise any Authority over those buildings even to make Appointments of officers for the immediate Care of them or furnishing them with necessary Supplies. I wish to have your Opinion if you can find Leisure.

I hope Congress, before they adjourn, will take into very serious Consideration the necessary Amendments of the Constitution. Those whom I call the best–the most judicious & disinterested Federalists, who wish for the perpetual Union, Liberty & Happiness of the States & their respective Citizens, many of them if not all are anxiously expecting them.

They wish to see a Line drawn as clearly as may be, between the federal Powers vested in Congress and the distinct Sovereignty of the several States upon which the private & personal Rights of the Citizens depend.

Without such Distinction there will be Danger of the Constitution issuing imperceptibly and gradually into a consolidated Government over all the States; which, although it may be wished for by some was reprobated in the Idea by the highest Advocates for the Constitution as it stood without Amendments.

I am fully persuaded that the population of the U S living in different Climates, of different Education and Manners, and possesed of different Habits & feelings under one consolidated Government can not long remain free, or indeed remain under any kind of Government but despotism.

You will not forget our old Friend Devens, and if you please mention him to Mr R H Lee.

Adieu my dear Friend and believe me to be sincerely yours,

P. S. The joint regards of Mrs A & myself to Mrs Gerry.

IN THE BEGINNING

Several months ago I started my efforts to promote action on the 10th Amendment in Idaho. This effort was based on the encouraging fact that the Idaho Legislature passed House Joint Memorial No.4, a sovereignty declaration not requiring the Governor’s signature. My original motivation in this effort was not to promote partisan politics. It was not an emotional effort to “strike a blow for freedom”, nor was it a revengeful effort to put the Federal Government “in its place”.

It was and still is a matter of SURVIVAL.

I saw then as now, an out of control Democratic President and Congressional majority with a socialist agenda proposing bills and mandates so illogical, that the impact in Idaho would be catastrophic. I believed then and still do, that the only entity strong enough to mount a defense against this usurping Federal Government was the states using their 10th Amendment rights.

I then authored a petition requesting the Legislature and Governor take action to enforce the statements put forth in their declaration, and to refuse to comply with usurping mandates and guidelines required by Federal funding grants to the state. The petition was relative well circulated throughout Idaho by contact with the various teaparty groups, whom I urged to form a strong statewide political coalition. I felt confident at the time that this petition was going to have a significant effect on the Legislature and Governor. I sent a copy of the petition to all one hundred five (105) Legislators and Governor, plus a special “Letter of Concern” to the Governor urging him to publically state his support for states rights.

The results for these efforts are as follows:
1. I have to date received a positive response from two (2) legislators and a negative response from one (1). I am actively working with one of these legislators.

2. Have heard nothing from the Governor’s office except after a follow up email, a staffer called and said his office would contact me. A month has passed and still waiting.

3. The teaparty group leaders have helped out to a degree, but their priority has been, and continues to be, teaparty activities in their own area, and the upcoming 9-12 rallies in DC and around the nation. They also continue to reflect very little inclination to form a structured statewide political coalition and they believe they can win their war at the Federal level. I equate this viewpoint as standing on the deck of the Titanic waiting for the rescue ship and passing up the lifeboat.

THE REALITY SETS IN
Where does the fault lie for the marginal results thus far? Obviously with my own apparent inability to organize supporters, and influence legislators, but the greater responsibility for Idaho sitting dead in the water in it’s 10th Amendment voyage is the Idaho Legislators and Governor themselves.  They are fully aware of the unconstitutional actions of the President, and the impending radical laws and mandates to be imposed on the citizens of Idaho, yet they have not made one significant move past their initial declaration. One would wonder why they are not self motivated by the common circumstances that are impacting us all.

The political reality is, they are in sitting in a political comfort zone completely out of danger. They are not getting blamed for the state of the economy and chaos in DC. They are not getting hammered by the mainstream news media. They are not getting out in the street rallies and townhalls and being pushed around by “union thugs “. They are not facing protest rallies in their home towns or state capitals against them. Sitting in this enviable political position there is simply no motivation for them to take on a fight with the Federal Government and risk losing Federal funding or exposing themselves to criticism.

I feel certain, that as 10th Amendment advocates in other states begin the implementation process, they will encounter the same reluctance for action by their governors and legislators as I have experienced in Idaho. It is one thing for state legislators and governors to vote on a Sovereignly declaration, but an altogether different matter to bring on a fight with the Feds and risk losing Federal funding. There is also great resistence by various state agencies to the idea of “rocking the federal funding boat”, i.e. taking on the Feds.

CONCLUSIONS AND RECOMMENDATIONS
Thus, we who are engaged in the 10th Amendment issue do have options to motivate legislators, governors, and agency heads to action, but it is going to take a great deal of work. Listed below are some tasks that I believe must be taken on if we are to realize our goals.

1. Form a nationwide 10th Amendment proactive cooperative coalition.

2. This coalition would need to initiate a statewide information campaign informing state citizens that the very state they live in has the means and muscle to throw back the intrusive Federal usurpations. I have found that the general public is basically uninformed of the 10th Amendment option, and are frustrated, fearful, and angry as they focus at the national level. A petition requesting action on passing a sovereignty declaration, or putting force of action to one already passed can serve as a good information vehicle.

3. Contact the teaparty, 912 type patriot groups within your states, and solicit their help and cooperation. They can be a tremendous asset, but as I have previously stated, they are defiantly focused in on their local sphere of influence as it relates to the federal issues, and so far have provided somewhat tepid cooperation. This is especially evident with the upcoming 912 activity.

4. Organize statewide political rallies demanding 10th Amendment action by the legislators and governors. This action is going to have to be unprecedented, comprehensive, and some what shocking to the incumbent politicians. At first it seemed that we could achieve victory by one nullification bill at a time in order to check the Feds. But it is now apparent that the blitzkrieg of federal laws and mandates are coming so fast that full time state legislative sessions would not be able to keep up. This action must take the form of a complete state plan of action, a plan of action that we as 10th Amendment advocates need to formulate and present to our legislators and governors for action. Each plan of action would have to be tailored to fit the unique characteristics of individual states. Below is plan “B” I have formulated for Idaho. This plan is preliminary, general, incomplete, and somewhat audacious, but it’s primary purpose is to start the process of planning.

IDAHO SOVEREIGNTY
PLAN “B”

ONE
Create a new state agency (as if we needed more agencies) called “Federal Relations” This agency under the direction of the legislature would be tasked with official communications between The state of Idaho and the Federal Government concerning all 10th Amendment / State Sovereignty issues. This agency would also be tasked with accumulating the following information:

A. The accounting of all federal and Idaho state taxes paid by Idaho citizens.

B. The budget requirements of State agencies and entities.

C. The amount of Federal funding that is being received by any entity in the state whether direct or through state channels. This will require all County and city governments to report these funds.

D. Search out and define any and all federal programs, mandates, or laws that are currently in violation of Idaho’s 10th Amendment rights, and in particularly the school system, as in my opinion needs to be brought back out of any Federal control into state/ school district control.

E. Present a report of the above information to the Legislature and Governor.

TWO
Through the “Federal Relations” agency issue a memorandum to the Feds that the State of Idaho will no longer recognize or comply with any federal programs, mandates, or laws that are currently in violation of Idaho’s 10th Amendment rights, and then list them. The memorandum could start out like this:

“Please be advised that the State of Idaho can not and will not comply with funded or unfunded federal programs, mandates, or laws that are currently in violation of Idaho’s 10th Amendment rights. This action has now become necessary due to the recent illogical, and economically disastrous legislation being mandated by the Obama Administration in cooperation with the Democratic controlled Congress. These funded and unfunded federal programs, mandates, and laws are listed below:” etc. etc.

THREE (SCENARIO, the fight is on)
At that point the Feds will probably withhold Federal funding in an attempt to bring Idaho back into compliance.

FOUR
In lieu of the loss of federal funding, Idaho will be forced to impose a property tax on all Federal real estate and improvements lying within Idaho.
(The Feds own approximately 3/4 of all Idaho lands)

FIVE
The Feds won’t pay it.

SIX
Idaho will be forced to confiscate all federal taxes due within the state, in order to meet the state budget. This is not violating the 16th Amendment, as the Feds can continue to tax away, the state is just temporarily confiscating the Fed’s money into a temporary state fund in order to meet state budgets needs until the Feds resume the federal funding the state has become depended on.

If one state could get this fight going it might encourage other states to join in with their own agenda, primarily confiscating federal income taxes, thereby de-funding the Feds.

It is my hope that this article may illustrate the hurdles to be overcome, yet promote real action by the advocates of the 10th Amendment movement.

Pete ketcham

by Michael Boldin

The following was a prepared statement for the 10th Amendment Forum in Orlando, FL on 08-22-09

First of all, thank you for allowing me a few moments to be here with you today – it’s an honor to be able to speak with you, even if it’s from the other side of the country where I am here in Los Angeles, California.

As the founder of the Tenth Amendment Center, I’m often asked – why the Tenth Amendment?  Why do we need it?  And I truly believe that’s just what people like you and I were asking back in the time when this country was founded, too.

But, the answer isn’t complex.  It isn’t difficult.  It’s simple and it’s easy to understand. The People of the day, the Founding Generation, like so many of us today, recognized that a government of strictly limited powers is the only one that has a chance of protecting our liberty – and that’s just the kind of government that the People created when they ratified the Constitution so many years ago.

They did this because they knew through their own life experience, that a government without limits is a tyranny.

The 10th Amendment was ratified as an exclamation point on the Constitution – and it lays out in plain English that our federal government is to be one of limited, enumerated powers – not the nearly unlimited, unchecked one that it has become today.

It truly is our modern line in the sand.  On one side, we have those who believe in limiting the power of politicians, and on the other are those that trust the government to do everything.

The 10th Amendment is the safety valve that makes it clear, especially in conjunction  with the 9th, that it was The People who created the federal government to be our agent for certain enumerated purposes…….and nothing more.

The federal government didn’t create itself – and the state governments didn’t create it either.  It was The People who created the federal government, and it is the People who are sovereign in the American system.  This couldn’t have been more clearly stated than it was in the Federalist Papers, #22. And here’s the quote:

“The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

And that wasn’t Madison or Jay.  It was the man who at the time was seen as the greatest believer in centralized power, Alexander Hamilton.  So, back then, even the great centralizer recognized that power comes from the People.  And that’s the way it was at the beginning – and that’s the way it is today.

So only when “We the People” actually regain that power over the government that is supposed to be our agent – only then will we ever see liberty and prosperity flourish in this country.

And, I believe that the path to this is not in Washington D.C.  It’s not in asking federal politicians to let us exercise our rights, or hoping that federal judges will give us permission to exercise our rights.  But instead, the path is in Tallahassee and state capitols around the country.  Courageous State legislators – like your own Carey Baker and Scott Plakon – are calling on the Jeffersonian tradition of nullification to resist unconstitutional federal laws.

When a state “nullifies” a federal law, it is proclaiming that the law in question is void and inoperative, or “non-effective,” within the boundaries of that state; or, in other words, it’s actually not a law as far as that state is concerned.  We see this principle being raised in opposition to national ID cards, federal gun regulations and even proposed national health care plans.

Starting in 2007, there was a state-level resistance to the federal government that rose up in a way that this country hasn’t seen since the mid-19th century.  Approximately two dozen states simply refused to comply with federal law.  They refused to implement the Bush era Real ID act.   And guess what?  Today it’s gone without even needing congress to repeal it.

So what’s the lesson?  Through nullification, we can effectively resist DC and whatever they try to shove down our throats.

This year, 26 states have seen a firearms freedom act introduced, and already two states have already made them law – that’s Montana and Tennessee.

Sources close to the Tenth Amendment Center tell us to expect to see ten states introduce state constitutional amendments which would effectively ban a forced national health care plan – and your state of Florida is leading the way.

There’s plenty of outrage these days, and that can be seen by the activism at town hall meetings around the country.  But think of it this way – If, instead of making demands on federal politicians who don’t listen to us anyway, all this energy was instead focused on state governments, we’d probably see 10 or 20 health nullification bills in states already.  And Obama’s health care program would be just that much closer to being dead in the water today.

The bottom line?  As Jefferson wrote back in the Kentucky resolutions of 1798 – the people of this country are not united on a principle of unlimited submission to their general government.

So, with that, I urge you – each and every one of you here right now – to take the ball and run with it.  When people like you say “I’m not going to wait anymore – I’m going to lead!” that’s when we’ll see this great movement in support of the constitution and your liberty really take off.

Thank you.

Michael Boldin [send him email] is the founder of the Tenth Amendment Center.

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

From Chuck Baldwin: My son, Tim, writes today’s column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is married to the former Miss Jennifer Hanssen.

Let’s be honest, America is facing the same legal, moral and ethical questions that our Founding generation did, especially regarding the issue of “Who Is Sovereign in the United States.” For our Founders, they fought, bled and died on the principles that no man or government has the right to rule over others contrary to their agreement (i.e. compact, constitution) and contrary to the principles of natural law as revealed in the Creation of God; that all men are born in nature with the power to govern themselves; and that no Sovereign government, established lawfully by the consent of we the people, can be usurped and controlled by any other entity. Thus, today in America, the question once again comes down to “Who is Sovereign in the United States?”

Today, there are 3 basic options for “Who is Sovereign in the United States”: (1) the Federal government, (2) the State governments or (3) We the People. I feel confident in stating that most contemporary Americans believe that the answer to this critical question is the Federal government–especially as it concerns any practical effect on the power of and over government. For years, Americans have been brainwashed though public education, major media networks and politicians that ALL federal laws are the “supreme law of the land” and that no state law or action to the contrary is valid, citing Article 6, paragraph 2 of the US Constitution as their “irrefutable” proof. Of course they are completely wrong: American ideology and legal fact states that sovereignty rests with “we the people.” However, the question must be more narrowly defined.

That is, does the sovereign power of we the people rest with all the people in the nation as one body, or does the power rest with the people THROUGH the respective States? The answer to this question cannot be overstated, because if the sovereign power rests with we the people collectively as one body, then the States have absolutely no power and at the ratification of the US Constitution, the States lost all powers originally granted to them by their respective sovereigns (the people of that State). To the contrary, if Sovereignty rests within or through their respective States, then the States conversely have more power than what is being admitted today by the “Centralists” of our day.

Through an honest study of the history and the context of the Articles of Confederation, the US Constitution, the Constitutional Convention and subsequent Ratification debates, the Federalist Papers, the Anti-Federalist Papers, the rulings of subsequent US Supreme Court Rulings and the writings of political philosophers and statesmen of the 1700s and 1800s, the conclusion is undeniable and clear: We the People are the Sovereigns of the States respectively and of the States United through our respective States.

Thus, the issue is not who is Sovereign, because we know that We the People are sovereign in the US and that the Sovereigns of each State have never ceded to the Federal government any power not expressly granted to it by the Compact (the US Constitution). But rather, the issue is one of JURISDICTION: in other words, who has the power to act on behalf of and in compliance with the Sovereign? The issue of jurisdiction is so important because it acknowledges that since the Sovereign has “paramount authority” in government, any powers that are granted from the Sovereign to government are to remain within that grant of authority. Put another way, the States can no more grant authority to the Federal government against the will of the Sovereign–the people–than the Executive branch of the Federal government can give to the Judiciary branch the powers that we the people granted to it alone. To deny that such a grant exists or conversely to ignore the limitations placed on the governments by the Sovereign is to suggest that tyranny is a lawful act and that it must be complied with. America’s founders would have considered such a political theory to be treasonous. Do we the people think so seriously of the matter? According to recent events, the answer to this question will likely be answered sooner than later.

As some of you may know, several states have and are passing legislation regarding the independence and sovereignty of the people of their respective states. More specifically, the states of Tennessee and Montana have passed “Firearms Freedom Acts,” which have become law and which reaffirm their Sovereignty under the 10th Amendment of the US Constitution. This law states that any firearms that are made, sold and bought in that state are NOT subject to the Federal regulations of firearms, because they are inherently internal affairs, which exempt them from the commerce clause of the US Constitution.

As you would imagine, the Federal government, through its agency, the Department of Justice, did not take too kindly to Tennessee’s assertion of jurisdiction over this matter and position that the federal laws did not apply to the subject matter at hand. This federal opposition has become known through the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), whereby they informed the firearms licensees in an “open letter” in Tennessee that the recently enacted law (Firearms Freedom Act) does not apply and is void and that they (the firearms licensees) must still obey and submit to the federal laws, regardless of the State’s statute. (See here)

This ATF response tells us the following about the federal government’s ideology of Sovereignty: (1) the federal government does not recognize the lawful and independent jurisdiction of the Sovereigns of Tennessee to operate their internal affairs as they deem proper and fitting; (2) the Sovereigns of Tennessee do not possess lawful jurisdiction to govern themselves through constitutional means; (3) the federal government has the power and authority to control the internal affairs of all States, as they deem fit. Bottom line, the Federal government is Sovereign. With their theory in mind, however, what commodity, what relationship, what contract, what service, or what molecule in this entire country would not be subject to their control and power?

This issue is the very same reason why the Colonists declared their independence from Great Britain in 1776 and why Great Britain declared the Colonies to be in a state of rebellion against the government. The conflict was in fact the application of their Constitution: whether it be a “living” constitution or whether it be “fundamental laws” based upon the intent and will of the people. The fact is, it was the Great-Britain-view of their constitution verses the American-view of their constitution that caused the conflict between the crown and the colonies. One historian summarizes the conflict this way:

“The contrast cannot be too strongly insisted upon. [The colonists], on the one hand, believed that the British Constitution was fixed by ‘the law of God and nature,’ and founded in the principles of law and reason so that Parliament could not alter it, but [Great Britain believed] that ‘the constitution of this country has been always in a moving state, either gaining or losing something,’ and ‘there are things even in Magna Charta which are not constitutional now’ and others which an act of Parliament might change. Between two such conceptions of the powers of government compromise was difficult to attain . . . Such differences in ideals were as important causes of a breaking-up of the empire [of Great Britain] as more concrete matters like oppressive taxation.” (Claude Halstead Van Tyne, The Causes of the War of Independence, Volume 1, [University of Michigan, Houghton Mifflin Company, 1922], 235, 237).

Indeed, the issues of taxation during the 1760s and 1770s were only fruits of the underlying issue, and that is, who is Sovereign in America. According to Great Britain, the government had the power to impose its will on the people of America despite the will of the colonies and despite the natural laws governing the compact between the English people and their government. In other words, the government believed that their constitution was “living,” giving the government power to impose its will on the people, without the people’s consent. The colonists, however, saw the matter to be a usurpation of their God-given right to be governed by their consent and in compliance with their constitution. The end result: the Sovereigns in each colony seceded from the empire of Great Britain because of Great Britain’s refusal to follow their constitution.

Do Sovereigns throughout our States United not see the significance of the issue we are facing today? Are we so blind to history that we cannot compare this scenario to the very scenarios that led to the American Revolution? Are we so ignorant as to the intents and purposes of the US Constitution? Consider that the “supreme laws of the land” were never meant to be carte blanche powers of the Federal government, but instead federal laws were expressly limited by the terms of the compact between and for the States, found in the Constitution. This concept of “supreme law of the land” was expressed by a founding father, whom many would consider to be a “centralist” in belief, Alexander Hamilton, in Federalist Paper #27:

“[T]hat the laws of the Confederacy [meaning, the United States of America--yes, even Hamilton, along with many other founders, such as George Washington, called the US Constitution a Confederacy, because they knew that the nature and character of the compact of the US Constitution did not change from the Articles of Confederation] as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land, to the observance . . . in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operation of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS.”

Hamilton’s legal position concerning the limited power of the federal government and the “supreme law of the land” was the consensus of the founders, the States and we the people. Nowhere in America’s founding was there the notion that the supreme laws of the land were anything contrary to the compact FOR the States. The supreme laws of the land are simply those “fundamental laws” that we the people have created and imposed upon the government to follow and uphold.

Of course, the question has been raised over the past 150 years of “who has the power to determine whether or not the Federal government has usurped their constitutional authority?” The popular answer is (wrongfully), the US Supreme Court. God forbid that the Sovereigns of each State must wait and rely on 9 federal judges to make rulings of this nature before a State would have any legal rights or justification to act in accordance with the will of their Sovereigns. Indeed, the ATF interpreted the Constitution unilaterally without the opinion of the US Supreme Court and without opinion or order denied the constitutionality of Tennessee’s Firearms Freedom Act. The Sovereigns in each state have the same power, and the historical and legal evidence is plentiful. Consider Thomas Jefferson’s position:

“[T]he States should be watchful to note every material usurpation on their rights; denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding to the lesser evil, until their accumulation shall overweigh that of separation.” (Thomas Jefferson and John P. Foley, ed., The Jeffersonian Cyclopedia, A Comprehensive Collection of the Views of Thomas Jefferson, [New York and London: Funk & Wagnalls Co., 1900], 133)

I will not attempt to persuade the reader at this point on the fallacious position that only the US Supreme Court can make a determination of constitutional actions. However, for those who would argue that the US Supreme Court is in fact the only legal means by which a State can say “no” to the federal government, then I believe that such a person has reached the point of voluntary slavery, and such a person is dangerous to the concepts of federalism, American-sovereignty, and constitutional limits and freedom, as expressed by thousands of the most influential men in our history. And such a person has accepted only those political means of redress whereby the Sovereigns of each State drudge through the treacherous mud of tyranny and get absolutely nowhere.

What we are seeing today, and have seen for over 100 years in America, is the usurpation of the federal government over Sovereignty–we the people–and over Jurisdiction–the States. While this article cannot begin to expound in depth the true character and nature of the US Constitution, a study of history reveals that the US Constitution was an agreement between the Sovereigns of each State whereby they acceded to give up only certain parts of their power for the “more perfect union” of the people within those States. As with any sovereign people or government, accession may be limited to whatever means and ways necessary to protect the freedom of that society. This is in fact what the Colonists did in 1776 when declaring independence from Great Britain, what the States did in 1781 when ratifying the Articles of Confederation, and what the States did in 1787 when ratifying the US Constitution. It was the Sovereigns, through their respective States, who declared their natural rights under God, who secured their natural rights through independence from governments and who expressed that any act outside of their consent is tyranny.

When this recognition resounds in the hearts and minds of the people, as our Declaration of Independence states, “it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Do you really think after only 11 years from the signing of the Declaration of Independence that those same people who risked everything for independence from those “living-constitutionalists” in Great Britain and who believed in the principles seen in the Articles of Confederation would have completely renounced their understanding of a Confederacy and Federalism and would have resigned the same and delegated all of their powers that they fought and died to secure for each State and for their citizens? If you think so silly a notion, you severely impose injustice upon the intelligence and intentions of our founders.

However, the record is clear that the Sovereigns of each State never ceded to the federal government powers not expressly vested to it and never waived the ability to reclaim that power through their proper channels–the States–the same channels by which the US Constitution was ratified. Consider the Sovereigns’ voice in the State of Virginia in 1787:

“We the delegates of the people of Virginia . . . Do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby, remains with them and at their will; that therefore no right, of any denomination, can be cancelled, abridged, restrained or modified by the congress, by the senate or house of representatives acting in any capacity, by the president or any department, or officer of the United States, EXCEPT IN THOSE INSTANCES IN WHICH POWER IS GIVEN BY THE CONSTITUTION FOR THOSE PURPOSES.” (Emphasis added.)

However, the Federal government today does not recognize the Sovereignty in the people of the respective states; it does not recognize the respective States’ jurisdiction over all matters not expressly delegated to the federal government; and it does not seem to acknowledge State Sovereignty under the 10th amendment of the US Constitution. Given their evident intent and purposes to continually grow in power and to continually oppress and suppress the sovereignty of we the people, against our respective states, the question becomes, how will they be made to understand this? It is of course up to the Sovereigns in each state to answer this question. And we see the answers arriving through State laws such as the Firearms Freedom Act.

The time has come in America where to be free necessarily means to resist status quo and federal usurpation and to actively change the course and philosophy being shoved down our throats. There really is no middle ground any more. This is not a matter of politics anymore. This is not a matter of Republican and Democrat. This is a matter of FREEDOM, as much so as were the matters of 1775 and 1776. It is staring you in the face, daring you to make a move. May we never be guilty of causing, whether by our apathy, indifference, laziness or comfort, this nation to lose the freedoms that our founders attempted to secure with infinite pains and labors. We the people must once again reassert our Sovereignty in this country and the States must recognize and act upon their God-ordained role as Freedom protectors and tyranny resisters.

© 2009 Chuck Baldwin – All Rights Reserved

“[Roman] Tyrants would distribute largess, a bushel of wheat, a gallon of wine, and a sesterce: and then everybody would shamelessly cry, “Long live the King!” The fools did not realize that they were merely recovering a portion of their own property, and that their ruler could not have given them what they were receiving without having first taken it from them. A man might one day be presented with a sesterce and gorge himself at the public feast, lauding Tiberius and Nero for handsome liberality, who on the morrow, would be forced to abandon his property to their avarice, his children to their lust, his very blood to the cruelty of these magnificent emperors, without offering any more resistance than a stone or a tree stump. The mob has always behaved in this way – eagerly open to bribes that cannot be honorably accepted, and dissolutely callous to degradation and insult that cannot be honorably endured.”

“The fundamental political question is why do people obey a government. The answer is that they tend to enslave themselves, to let themselves be governed by tyrants. Freedom from servitude comes not from violent action, but from the refusal to serve. Tyrants fall when the people withdraw their support.”

“It is hard to think of anyone having such unexamined faith in government today. In such an age as ours, thinkers like Étienne de La Boétie have become far more relevant, far more genuinely modern, than they have been for over a century.”

“Poor, wretched, and stupid peoples, nations determined on your own misfortune and blind to your own good! You let yourselves be deprived before your own eyes of the best part of your revenues; your fields are plundered, your homes robbed, your family heirlooms taken away. You live in such a way that you cannot claim a single thing as your own; and it would seem that you consider yourselves lucky to be loaned your property, your families, and your very lives. All this havoc, this misfortune, this ruin, descends upon you not from alien foes, but from the one enemy whom you yourselves render as powerful as he is, for whom you go bravely to war, for whose greatness you do not refuse to offer your own bodies unto death. He who thus domineers over you has only two eyes, only two hands, only one body, no more than is possessed by the least man among the infinite numbers dwelling in your cities; he has indeed nothing more than the power that you confer upon him to destroy you.

“Where has he acquired enough eyes to spy upon you, if you do not provide them yourselves? How can he have so many arms to beat you with, if he does not borrow them from you? The feet that trample down your cities, where does he get them if they are not your own? How does he have any power over you except through you? How would he dare assail you if he had no cooperation from you? What could he do to you if you yourselves did not connive with the thief who plunders you, if you were not accomplices of the murderer who kills you, if you were not traitors to yourselves? You sow your crops in order that he may ravage them, you install and furnish your homes to give him goods to pillage; you rear your daughters that he may gratify his lust; you bring up your children in order that he may confer upon them the greatest privilege he knows – to be led into his battles, to be delivered to butchery, to be made the servants of his greed and the instruments of his vengeance; you yield your bodies unto hard labor in order that he may indulge in his delights and wallow in his filthy pleasures; you weaken yourselves in order to make him the stronger and the mightier to hold you in check. From all these indignities, such as the very beasts of the field would not endure, you can deliver yourselves if you try, not by taking action, but merely by willing to be free.

“Resolve to serve no more, and you are at once freed. I do not ask that you place hands upon the tyrant to topple him over, but simply that you support him no longer; then you will behold him, like a great Colossus whose pedestal has been pulled away, fall of his own weight and break into pieces.”

John Bowman [send him mail] lives in Washington State.

Copyright © 2009 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.