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

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

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

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

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

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

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

Resolved:

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

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

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

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

Further:

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

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

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

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

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

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

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

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

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

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

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

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

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.

by Gary Wood

In the original intent of our U.S. Constitution Article 1, Section 8 provided enumerated powers for the federal or general government with all other powers remaining with the States or with the People.

One of those enumerated is the power “[t]o regulate Commerce with foreign nations and among the several States, and with the Indian Tribes,” which we refer to as the ‘Commerce Clause.’ It seemed like a straight forward power which would help overcome some of the challenges the states were dealing with under the Articles of Confederation. Interstate commerce had become extremely complex with each state setting its own currency and regulations causing significant obstacles to economic transactions between states.

Among the limited functions the state representatives felt the federal government could assist in was to create a regular means for making commercial interactions easier. The 1828 American Dictionary of the English Language defines regulate;

REG’ULATE, v.t.

1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.

2. To put in good order; as, to regulate the disordered state of a nation or its finances.

3. To subject to rules or restrictions; as, to regulate trade; to regulate diet.

Among the states referred to interstate activity alone, not intrastate among the people. Intrastate commerce fell under the protection and duty of the 10th Amendment. Additionally, rules imposed on interstate commerce were to be no more than necessary to help transactions take place “in good order.” In 1824 Chief Justice John Marshall understood the limited nature of the federal level responsibility, in Gibbons v. Ogden, and the precedent set in this case stood until the mid 1930s.

According to Thomas Woods, Jr and Kevin Gutzman, as written in Who Killed the Constitution;

In 1937, however, the Court abandoned its attempt to set limits to the Commerce Clause power and to enforce theTenth Amendment. No longer would the Court be in the business of drawing a line between the federal and state authority, as it had been intended to do. Instead, it would allow Congress to do almost anything it wanted to do on the basis of the Commerce Clause. (p. 106)

When you think about the many infringements on you, your neighbors, and your states it is a good bet you will be able to track those infringements to some abuse under the usurped authority of today’s Commerce Claws.

When people ask if Obama Care is constitutional career politicians scoff since anything they conceive will be upheld by an out of control system shredding the final bits of either the states or peoples authority to control our commercial dealings. All that has been done with the Commerce Claws, from FDR to BHO, has been done under the pretense of helping us economically.

As our economic freedom diminishes so does our political freedom, they are tied together. The less control we have of one the less control we have of the other. As our political factions gain more direct power over our economy they secure positions of authority. This is why you cannot listen to a debate on Obama Care without hearing how it will impact the 2010 races. Those opposing are doing so merely in hopes of garnering votes while those supporting it are doing it for the same reason. However, each major faction is racing against time as they maneuver toward a day when votes will not be necessary to maintain their positions.

As Milton Friedman stated, “Economic freedom is also an indispensable means toward the achievement of political freedom.” If we, the people, are to save our freedom in both realms (economic and political) we must demand more than a stop to Obama Care. Stopping health care reform only stops it this time, as we did in the 90s with Hilary Care, and as we did in the 30s when it was considered too far a reach since the factions just succeeded in invoking social security and many other social controls while fitting the claws to a wrong interpretation of Article 1, Section 8, Clause 3. Each time it is stopped a little control gets through; think Medicare, Medicaid and more.

The battle this time must be fought against the root problems; bad Supreme Court precedent beyond our votes and states not fulfilling their duties to provide the proper check against Constitutional violations. Each branch of government, in our Federal Republic, is duty bound by oath to nullify the actions of any other branch usurping authority beyond their granted powers. The federal branches were given the fewest powers yet today they are largely controlling our lives.

So, write to your Senators and Representatives, but don’t forget to write to each level. Study our history and learn all you can about the importance of the Tenth Amendment. Then, in 2010 find local candidates who understand their duty to defend the Tenth Amendment while checking the powers of the federal beast. It is time to clip the beasts’ claws.

Gary Wood is the State Chapter Coordinator for the Utah Tenth Amendment Center. He works with the Utah 912 States’ Rights Coalition and Hosts March of Liberty Radio every Saturday and Sunday evening at 7pm EST on Blog Talk Radio. He is a lifetime member of the VFW among other groups but more important to him is his title of grandpa. “According to Thomas Jefferson the 10th Amendment is keystone to our Constitution. We must restore the keystone so we can secure the blessings of liberty for our posterity, a goal of our Founders and a goal we must still strive to achieve.”

There have been some on-line discussions recently of whether a federal mandate that individuals obtain health insurance would violate the U.S. Constitution. This issue is distinct from the issue of whether other sorts of government health programs – such as single-payer – would be constitutional.

It is also distinct from whether states can impose insurance mandates. They can: States have general governmental powers. But the federal government has only the powers enumerated (listed) by the Constitution.

Let us be clear at the outset that federal involvement in health care (except in a few isolated instances, such as federal employee benefits) certainly violates the Constitution as that document was originally understood.

I have now spent nearly twenty-years of my life researching and publishing scholarly studies on the Founding-Era record, and I have found no significant evidence that those who wrote and ratified the Constitution thought federal power would extend to health care. Quite the contrary: When the Constitution was being promoted to the public, one of the big selling points was that regulation of all such matters would remain exclusively with the states.

So for those who subscribe to the widely-held view that the Constitution, like any other legal document, means today what it meant when adopted (aside from amendments), there is no real question: Federal health care mandates are unconstitutional.

The more-discussed point, however, is whether such mandates are within the federal government’s authority as that authority is applied by the Supreme Court today. More specifically, does the mandate qualify under Congress’s Commerce Power as a law “necessary and proper for carrying into Execution” the power “To regulate Commerce . . . among the several States. . . ?”

Recent Supreme Court cases are split between (1) those that hold that a law qualifies if it regulates an activity that “substantially affects” interstate commerce and (2) those that hold that a law qualifies if Congress could rationally believe that the activity “substantially affects” interstate commerce. Because of changes in personnel on the Court, it is not clear which standard the Court would apply. Of course, everyone agrees that health care activity as a whole “substantially affects” interstate commerce.

Nevertheless, federal health insurance mandates face at least two difficulties meeting either of the modern Court’s standards for the federal Commerce Power. The first is that just doing nothing — not buying heath insurance — is not an “activity.”

In a famous case relied on by those who think mandates are constitutional, the Court upheld application of maximum acreage legislation to a farmer who kept the wheat sold on his “excess” acreage for his own use. But in that instance, the farmer was engaged in a commercial business, and sold much of his product on the open market. In another case similarly relied on, the Court extended the Commerce Power to people who grew, exchanged, and used medical marijuana. But, again, in that case those regulated were actually engaged in activities that could be regulated.

But most of those commanded by federal insurance mandates are doing nothing but breathing.

A second potential constitutional problem is that if the Court were to uphold a regulation on people doing nothing to regulate, then the justices really would have to confront the question of where there is anything outside the federal commerce power. For years, critics of the modern Supreme Court have attacked its expanded commerce power jurisprudence with the reductio ad absurdum argument that the court’s jurisprudence would permit Congress to regulate people just for breathing.

Now that absurdum is here. Certainly the Supreme Court is sensitive enough to legal consequences to hesitate before taking that final step.

The Supreme Court also is sensitive to political consequences. Mandates are likely to prove quite unpopular with an outspoken and influential part of the American population. Although most Supreme Court justices probably do not consciously consider the popularity of a challenged law, history suggests that such factors have a subconscious effect.

At any rate, these are serious questions, worthy of serious consideration by Members of Congress. Members of Congress should not merely blow them off as irrelevant, as Speaker Pelosi has infamously done. After all, our legislators take an oath to uphold the Constitution, just as Supreme Court justices do.

Rob Natelson is a constitutional law professor at the University of Montana, and runner-up in the 2000 “open primary” for Governor of Montana. His opinions are his own, and should not be attributed to any other person or institution.

From Chuck Baldwin: Note: 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 author of a new book, published soon by Agrapha Publishing, entitled FREEDOM FOR A CHANGE

The arguments against the power of the states to arrest federal tyranny are as predictable as the sun coming up in the morning, and they are as philosophical in nature as the Declaration of Independence. One of the most commonly used arguments against such a State power is the United States Supreme Court (US S CT) dicta opinion in Marbury v. Madison in 1803, written by Chief Justice John Marshall. Before getting into the misunderstandings and misapplications of that infamous decision, we must first recognize the source and character of Marshall’s opinion. As Marshall himself admitted that the US is to be a country of “laws, not men,” we must establish that Marshall’s opinion does not equate to the “supreme law of the land” which the states and individuals are bound to obey. If our submission only requires that the US S CT speak, then we do not live as freemen, but as slaves.

Marshall was an ardent member of the Federalist Party (a pro-centralist party) and served as the Secretary of State in the pro-centralist administration of President John Adams, who appointed Marshall to the US S CT in 1801 at the “midnight” hour before Thomas Jefferson was sworn into office as President of the US. Marshall’s nationalist opinions were no secret either. Marshall believed that the US Constitution and Union were formed by the aggregate whole of the American people, and not by a compact of the states; that the Union formed “one nation, indivisible” and not a confederation of states; that State sovereignty as expressed in the Tenth Amendment equated more to a general idea than to any real applicable and relevant State power over the federal government; that the Constitution must be liberally interpreted for the sake of expanding federal powers at the expense of State sovereignty; and that the idea of State sovereignty was literally ridiculous. By the way, even most self-called conservatives today probably subscribe to these political beliefs, not even knowing the real historical facts behind such fallacious ideology.

Concerning Marshall’s philosophical belief relative to the formation of the USA, this historical fact must be admitted. It is crucially important for our discussion today in America. Historian and politically-motivated author, Edward Samuel Corwin, said of Marshall in his book, “John Marshall and the Constitution” (New Haven, CT, Yale Univ. Press, 1920), p. 34: “[Marshall's] attitude [to strengthen the national power and to curtail State legislative power] was determined not only by his sympathy for the sufferings of his former comrades in arms and by his veneration for his father and for Washington . . . but also by his military experience, which had RENDERED THE PRETENSIONS OF STATE SOVEREIGNTY RIDICULOUS IN HIS EYES.” (Emphasis added.) There is no question that Marshall had a pre-destined belief against State sovereignty in favor of national power. Corwin describes Marshall’s political belief regarding the US as a “nationalistic creed.”

So, is the nationalistic political persuasion of one man (appointed by a nationalistic President) and one court to form the basis of the true understanding of the nature and character of the USA? After all, Marshall admitted that the US is established by the rule of law, and not the rule of men. So, by Marshall’s own definition in Marbury v. Madison, a US S CT opinion does not establish law, but rather should reflect what the paramount law already is: “The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.” So, as the age-old question has gone: who determines whether or not the federal government has usurped power from the people of the states and from the State governments? The Marbury v. Madison believers are likely jumping up and down right now, raising their hands, saying, “Oh! Pick me! Pick me! I know! I know!” I can just see smirks on the faces of most ABA-law school graduates as they condemn anyone who would advocate another position to be true which is contrary to what Marshall presupposed to be true. Of course, their rationale goes as deep as a kiddy-pool and their thought process as far as an inner-city driveway.

Since 1803, the nationalists have pointed to Marshall’s declaration to conclusively say the states have no power over the opinion of the US S CT, for as Marshall states: “It is emphatically the province and duty of the judicial department to say what the law is.” From this, most American lawyers and law students come to the conclusion that there is no authority above and beyond the US S CT’s interpretation of the US Constitution. Whatever the US S CT rules becomes “settled law” and the states are completely bound–of course, unless the US S CT says something different later. I was taught this in law school and every other ABA-accredited law school in America teaches this. But a true legal study of Marbury v. Madison reveals that Marshall’s opinion (which was actually dicta) never addressed the issue of State sovereignty whatsoever. American historian, Forrest McDonald, reveals this fact in his book, “State’s Rights and the Union: Imperium in Imperio, 1776-1876.” McDonald states, “Marshall was careful not to claim that the Supreme Court was the SOLE or FINAL ARBITER of acts of Congress.” (Emphasis added.) Ibid., (Lawrence, KS, Univ. Press of Kansas, 2000), p. 56. This is, in fact, the case.

Perhaps most telling about Marshall’s silence on the issue of being the sole or final arbiter is the fact that just a few years prior to his decision, Thomas Jefferson and James Madison, through the Virginia and Kentucky Resolutions of 1798 and 1799, had advocated the State’s ability to actively nullify and resist unconstitutional actions from the federal government. Since Marshall’s opinion was mostly dicta anyway–meaning it had no relevance to the issue at hand–why not go ahead and state that the US S CT is the ONLY final arbiter of the US Constitution? But Marshall never did, and neither has any US S CT decision since Marbury v. Madison.

Thus, when someone suggests that the states possess the sovereign power to arrest federal encroachments outside of constitutionally enumerated powers, the nationalists emphatically argue their unsupported conclusion that the USA is one nation, indivisible, where the US S CT possesses the sole authority as the final arbiter on all matters politically relative to the US Constitution, and to suggest otherwise is treason!–even when the most authoritative sources have been so pointedly laid out to the contrary. Marshall’s opinions have not settled this matter, and the USA must come to grips with who we are, what we are and how we are.

What’s more, Marshall’s opinions of national expansion were conclusively derived from one main principle: that the USA is a nation formed by the whole people and not by individual states through a compact. This fact was admitted by Marshall-lover, Corwin, in 1920. Corwin clearly expresses this point as follows:

“The great principles which Marshall developed in his interpretation of the Constitution from the side of national power . . . were the following: ‘(1) THE CONSTITUTION IS AN ORDINANCE OF THE PEOPLE OF THE UNITED STATES, AND NOT A COMPACT OF THE STATES. (2) Consequently it is to be interpreted with a view to securing a beneficial use of the powers which it creates, not with the purpose of safeguarding the prerogatives of state sovereignty. (3) The Constitution was further designed . . . to be kept a commodious vehicle of the nation life . . . . (4) [The national government] is a sovereign government, both in its choice of the means by which to exercise its power and in its supremacy over all colliding or antagonistic powers. (5) The powers of Congress to regulate commerce is an exclusive power, so that the States may not intrude upon this field even though Congress has not acted. (6) The National Government and its instrumentalities are present within the States, not by the tolerance of the States, but by the supreme authority of the people of the United States.’ Of these several principles, THE FIRST IS OBVIOUSLY THE MOST IMPORTANT AND TO A GREAT EXTENT THE SOURCE OF THE OTHERS.” “John Marshall and the Constitution,” pp. 144-145. (Emphasis added.)

Corwin admits that all of Marshall’s opinions were based upon the presumption that the USA is a nation formed by the whole people as one body politic, and not by the individual, sovereign states via a compact. From this premise comes the vast expansion of federal power under the guise of constitutionality. Thus, if it were to be contrarily presumed that the USA is in fact a compact acceded to by the states, then the rules of interpretation that Marshall and subsequent US S CT justices used were wrong and require a different outcome. This fact cannot be overstated and is the source of all of the federal tyranny that many of you reading this article complain about. Thus, it behooves Americans to truly know WHAT IS THE TRUE NATURE AND CHARACTER OF OUR UNION: is it a National government formed by the whole people, or is it a compact among the states and acceded to by the states (otherwise known as a Confederacy)?

This article does not allow me to expound upon this subject in great depth, but it should be sufficient at this point at least to call into question Marshall’s presupposition regarding the nature and character of the USA by referring to some of the most authoritative sources on the subject during the formation of the US Constitution. Let us start with James Madison, who was one of the Federalist Paper authors and considered to be the Father of the US Constitution. In Federalist Paper 39, Madison examines the nature and character of the formation of the Union under the US Constitution. He admits that the US was formed by a federative (league of states) and NOT a national act. Madison proclaims:

“[T]he Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but . . . 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 . . . 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 . . . 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 . . . [T]he new Constitution will . . . be a FEDERAL, and not a NATIONAL constitution.” (Emphasis added.)

Madison pens in the clearest of terms that the US Constitution is a compact assented to by the State sovereigns in their legal capacities as individual bodies politic, and NOT as one mass of people, forming one body politic. If this were not enough to at least raise a serious question as to what has been shoved down our throats for 150 years, consider that even Alexander Hamilton confirms that the US Constitution is a compact between the states, and NOT a national act of the whole people. He says in Federalist Paper 85:

“To its complete establishment throughout the Union, [the US Constitution] will therefore REQUIRE THE CONCURRENCE OF THIRTEEN STATES . . . [T]he necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the COMPACT . . . WE MAY SAFELY RELY ON THE DISPOSITION OF THE STATE LEGISLATURES TO ERECT BARRIERS AGAINST THE ENCROACHMENTS OF THE NATIONAL AUTHORITY.” (Emphasis added.)

Just in these two short excerpts from Founding Fathers, James Madison and Alexander Hamilton, we see that Marshall’s premise that the USA is a nation formed by the whole of the people and not by the compact of the states is seriously called into question, which, of course, calls into question all of the principles of constitutional interpretation and resulting conclusions which derive from that false premise.

An honest look at the presumption that only the US S CT has the power to interpret federal encroachments on State sovereignty will reveal that the states have more power than what has been admitted ever since Marshall took the position of chief justice of the US S CT. For as Marshall admits in Marbury v. Madison, “questions [that are] in their nature political . . . CAN NEVER BE MADE IN THIS COURT.” (Emphasis added.) By definition, issues of State sovereignty are in their nature political, just as a treaty between the USA and foreign countries regards the matter of political sovereignty. Therefore, when our states begin to assert their natural and sovereign right of self-defense against federal tyranny, each State will answer to their sovereign–the people–and NOT to the United States Supreme Court.

© 2009 Chuck Baldwin – All Rights Reserved

Rob Natelson, recognized national expert on the framing and adoption of the United States Constitution, and Professor of Constitutional Law, Legal History, and Advanced Constitutional Law at the University of Montana School of Law talks about how the Supreme Court allowed the Federal Government in the late 1930s to drastically change the way the US Constitution is interpreted, how the Court initially tried to hold a line against FDRs expansion of power but changed position even before the infamous court-packing scheme, how the Commerce and Taxing powers were almost turned upside down,  the Necessary and Proper clause and incidental powers, the false claim that the Supreme Court is conservative, how bad precedent leads to more bad court rulings, state elections as critical for Constitutional activists, and more.

Editor’s Note: Professor Natelson notes one error in the podcast:  He should have given Justice Breyer’s first name as “Stephen.”

Mentioned in this Show:

United States v Darby Lumber

Wickard v Filburn

The Heritage Guide to the Constitution

Rob’s Page at the University of Montana

Scholarship of the Original Understanding of the Constitution

More from Rob Natelson:

Is ObamaCare Constitutional?

Claiming Almost Everything is “Commerce”

The New King George

It’s the People’s Right!

Podcast: Understanding Federalism

From Chuck Baldwin: Note: 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 author of a new book, published soon by Agrapha Publishing, entitled FREEDOM FOR A CHANGE.

Yes, yes, we have all heard the remarks from those who would call themselves conservative, libertarian or the like concerning the nomination and now swearing-in of Sonia Sotomayor to the United States Supreme Court, which took place on August 8, 2009.

Yes, yes, books have been written by those conservative and libertarian editorialists and authors who have explained to us that the United States Supreme Court (US S CT) is “out of control” and how we must elect “conservative” Presidents to appoint “conservative” judges. Ironically, this infatuation with the federal government, and specifically with the judicial branch of the federal government, has actually (at least in part) created the growing enslavement of the people of these States United.

Certainly we should care about who sits on the US S CT bench. However, the time has come in our Confederate Republic (the USA) to acknowledge and understand that the power to govern ourselves justly and constitutionally is in the hands of the people of the several states of America–NOT in the hands of the branches of federal government.

What most people in America have been duped to believe is that the US S CT is the final arbiter in all matters concerning government actions related to the US Constitution.

When it comes to US S CT rulings that contradict the US Constitution and that reject the historical facts and principles of our Republic, people feel hopeless and think that regaining freedom somehow means replacing the “liberal” judges with “conservative” judges. Such an approach to preserving freedom is not only un-American; it is fruitless and ineffectual. History now proves this.

Additionally, this approach proves that the vast majority of Americans have been indoctrinated into the centralist-ideology imposed on us by not-so-innocent advocates of such a political belief system.

Let me state this clearly: the US Constitution does not grant to the US S CT the power to interpret the Constitution in contradiction to the terms of the Constitution, and it does not strip the powers of the States to actively arrest and resist tyrannical federal actions. The US S CT can no more violate the Constitution than the Legislative and Executive branches can.

What sense does it make that the US S CT is bound by an oath to support and defend the Constitution and then has the power to interpret it however the heck they want to? Do you think our founders were so near-sighted and unlearned that they would have given to the US S CT this unchecked and unlimited power in the very document that states its purpose is “to secure the blessings of liberty”?

The framework of our Confederate Republic was clearly understood by those who advocated its ratification, namely, Alexander Hamilton, James Madison and John Jay: the writers of the Federalist Papers. These are the men who some today would argue advocated for a centralist government, reducing and eliminating the power of the states to resist and arrest federal usurpation of power.

Obviously, these advocates of centralism would not have you aware of what these founders said on the subject, nor would they like to admit that the US Constitution formed a league of states, which was acceded to by each independent and sovereign act of the states, and which secured the right and duty of the states to actively guard against the encroachments of the federal government they created for the security of the blessings of liberty.

It must first be admitted that the US Constitution never gave to the US S CT the power to substitute their will for the intentions of the Founders of the Constitution. This is easy to prove. Alexander Hamilton admits this in Federalist Paper 78:

“It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature . . . The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

Here, Hamilton points out the fact that, in our Confederate Republic, the US S CT MUST apply the Constitution to all federal laws as intended by the Founders. They are NOT to place their will above the will of those who framed and acceded to the US Constitution.

To suggest that the US S CT has the power to alter, change or amend the Constitution at will is to place the US S CT above the Constitution: they can no more do this than the legislative branch can pass an unconstitutional law and the executive branch can carry out an unconstitutional law. Or as Hamilton puts it, putting their will above the Constitution will “equally be the substitution of their pleasure to that of the legislative body.” Neither is acceptable and neither is constitutional.

One cannot credibly and correctly argue that whatever the US S CT says goes. I should not even have to restate this maxim, but in America, it has been held true that any unconstitutional act is null and void. This applies to the US S CT as well.

Thus, the question becomes, what can and what must the states do when all three branches of the federal government ignore the Constitution and trample over the intents of its foundational principles? The authors of the Federalist Papers give us some guidance on the subject.

In Federalist Paper 16, Hamilton explains in detail the states’ right to actively resist federal tyranny and usurpation of power. Listen to Hamilton:

“The plausibility of this objection [that the states will at any time obstruct the execution of federal laws] will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage.

“But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights . . . Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, UNLESS IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY.” (Emphasis added.)

Here, Hamilton clearly recognizes the states’ ability to actively intervene against the federal government “in cases of a tyrannical exercise of the federal authority.”

Hamilton also expounds upon the natural protection that the new system of the US Constitution provides, in that states will not so easily and readily interfere with federal action when such interference must be made actively and openly against the federal government. Certainly, where at least three-fourths (the percentage needed to amend the Constitution) of the states disagree with the State actively resisting the federal government, that State will consider the risks and costs to be too great to carry out and thus would not resist actively; instead, that State would use its VOICE and not its ARM to communicate its discontent.

However, as told by Hamilton, “IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY,” the states most certainly would use their ARM to arrest such tyrannical actions.

Hamilton describes the use of this ARM of the States in Federalist Paper 26:

“[T]he State legislatures, WHO WILL ALWAYS BE NOT ONLY VIGILANT BUT SUSPICIOUS AND JEALOUS GUARDIANS OF THE RIGHTS OF THE CITIZENS AGAINST ENCROACHMENTS FROM THE FEDERAL GOVERNMENT, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent . . . [T]he people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.” (Emphasis added.)

Hamilton goes so far as to say, if the federal government has usurped its powers and the people of the states feel it necessary, the states should secede from the union, dividing “themselves into as many states as there are counties, in order that they may be able to manage their own concerns in person.”

This is not I stating this: this is one of the most well-known Founding Fathers in American history. Hamilton further expounds upon this states’ right and duty to check federal usurpation of power in Federalist Paper 28. He says,

“Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and THESE [THE STATES] WILL HAVE THE SAME DISPOSITION TOWARDS THE GENERAL GOVERNMENT. The people, by throwing themselves into either scale, will infallibly make it preponderate. IF THEIR RIGHTS ARE INVADED BY EITHER, THEY CAN MAKE USE OF THE OTHER AS THE INSTRUMENT OF REDRESS. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!” (Emphasis added.)

Very clearly, Hamilton sees the brilliance of our Confederate Republic system of government, whereby the states can check the federal government and that where “rights are invaded” by the federal government, the people “can make use of the [states] as the instrument of redress.” Hamilton continues in this discussion, saying:

“It may safely be received as an axiom in our political system, that THE STATE GOVERNMENTS WILL, IN ALL POSSIBLE CONTINGENCIES, AFFORD COMPLETE SECURITY AGAINST INVASIONS OF THE PUBLIC LIBERTY BY THE NATIONAL AUTHORITY. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, THEY CAN AT ONCE ADOPT A REGULAR PLAN OF OPPOSITION, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and UNITE THEIR COMMON FORCES FOR THE PROTECTION OF THEIR COMMON LIBERTY.” (Emphasis added.)

Even as expressed by the centralists’ hero, Alexander Hamilton, the states were not left impotent regarding federal tyranny and were not stuck with the fruitless redress only through the US S CT. Hamilton clearly suggests that the states have the sovereign and active power to arrest the exercise of federal tyranny.

Again, the question here is not, does the federal government have the power to act within its delegated powers, for we all would concede that the federal government has the power to do what we the people in the several states delegated to the federal government.

We acknowledge, as Hamilton expresses in Federalist Paper 27, “the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land.” Rather, the question is, what are the states going to do in response to the usurpation of powers that have been tyrannically taken by all three branches of the federal government? The question is, what are the states going to do when the federal government has passed, upheld and executed laws that are not “enumerated and legitimate objects of its jurisdiction”?

After all, such laws are by definition NOT the supreme laws of the land and consequently, the people of the states and the states themselves are not bound to them. (Of course, this necessarily implies that we the people understand the Constitution, the principles of our government and the true character and nature of our government.)

Are the people of the states to sit back and let the federal government trample over the rights, principles and structure of our Confederate Republic? Is every State to shirk its responsibilities and duties to actively protect, preserve and defend the freedoms of its sovereign (the people of the State) against federal tyranny?

Are the people of the states to live and be governed in tyranny with the only hope that we will hopefully elect a President who will hopefully appoint a US S CT justice to the bench so that the Court can hopefully hear a case on the direct issue so that the Court will hopefully rule the correct way? Nonsense!

The time has come that the people of the several states of America wake up to the truth of their history: they are citizens of independent and sovereign states; the US S CT is NOT the final arbiter in matters of freedom; the federal government is not the source of our freedom; the states have the duty to resist the encroachments of federal usurpation; and freedom can be restored when the Confederate Republic is restored.

To that end, we must not fear Sotamayor; rather, we should insist that she fear the states–and obey the Constitution!

© 2009 Chuck Baldwin – All Rights Reserved

[Courts and Congress: America's Unwritten Constitution. By William J. Quirk. Transaction Publishers, 2008. Xviii + 312 pages.]

Courts and Congress defends a revolutionary thesis. If asked, who has the final say in our government on the meaning of the Constitution, most people would say, the Supreme Court. The Court itself agrees: in the famous Planned Parenthood v. Casey (1992) decision, it declared that it could not consider reversing Roe v. Wade (1973), because the American people had come to look to the Court as their guide.

William Quirk, one of the most original Constitutional theorists of our time, challenges this view. No, he does not challenge judicial review, the power of the Court to find laws unconstitutional: this he finds solidly based. He criticizes the Court for abuses of interpretation; but so long as the Court sticks to the language of the document, all is well.

So far, you may ask, what is original about that? Do not many other critics of the Court attack its at-times-bizarre interpretive methods? Quirk’s originality rests in his taking literally, and emphasizing, a part of the Constitution that most writers ignore. According to Article III, Section 2, the jurisdiction of the Supreme Court lies almost totally up to Congress. The Court has original jurisdiction only in cases involving disputes among the states and in cases where foreign diplomats are a party. Its appellate jurisdiction is subject to whatever “rules and exceptions” Congress chooses to make. So far as lower federal courts are concerned, they stand completely at the mercy of Congress. If it wished to do so, Congress could abolish the lower federal courts altogether.

Thus, if Congress does not like the decision of the Court in Roe v Wade and its successor cases, it can take away the right of the Court to hear any cases on appeal that involve abortion. True enough, that would still leave the decision on the books, and it would presumably be binding on other courts; but in practice, it might be difficult to sustain it. If a court decided to allow restrictions on Roe contrary to the mandate of the Supreme Court, this ruling could not then be appealed to that court for reversal. Congress might, by getting rid of the federal courts completely, leave abortion entirely in the hands of the state courts. In like fashion, of course, for other controversial areas. Quirk points out that until 1875, the lower federal courts did not have the right to hear appeals from state court decisions about federal law. By using its Article III powers, Congress could radically reshape constitutional law.

One might at first think that Quirk has made a mistake. Is he not blowing out of proportion a passage that really deals only with setting up rules of procedure for the federal courts? History buffs will be aware of the famous case of ex parte McCardle (1868), in which the Reconstruction Congress withdrew the right of the Court to hear a case, while that very case was pending before the Court; but is not this use of Article III an aberration? Surely, like the famous Tenure of Office Act, this was an example of how extreme that Congress was, rather than a guide to sound constitutional practice.

To those inclined to think so, the ruling of the Court in McCardle will come as a surprise. It fully recognized the right of Congress to withdraw its jurisdiction. The Court said,

We are not at liberty to inquire into the motives of the legislature. We can only examine its powers under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… It is quite clear, therefore, that this court cannot proceed to pass judgment in this case, for it no longer has jurisdiction of the appeal; and the judicial duty is not less fully performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. (pp. 289–90)

It is Quirk’s great merit to show that Congress’s power to limit the federal courts is a recurring theme in American history. Quirk is a Jeffersonian; and he points out that Jefferson and his followers feared the potential for abuse in federal judicial power and acted to curb it. The Federalists had secured the appointment of a number of Federalist judges in the Judiciary Act of 1801.

The Republicans replied to the Judiciary Act of 1801 by repealing it in the Judiciary Act of 1802. The 1802 act repealed “federal question” jurisdiction. It stripped the new judges of their offices. (p. 178)

Congressional power under Article III is far from a theoretical question. Congress has in fact acted to limit the federal courts in several notable instances. By the early 1930s, a majority of Congress had come to think that the courts often acted in an improperly antilabor way by issuing injunctions that forbade unions to strike. Employers who claimed that unions were a threat to their property did not have to go through the long and involved process of a civil suit. Once an injunction against a union had been issued, the court could instead hold the union in contempt and inflict civil and criminal penalties. Accordingly, in the Norris-LaGuardia Act (continually misspelled in the book), Congress, exercising its Article III authority, took away the power of federal courts to issue injunctions in labor cases. An interesting question, not discussed in the book, is why Franklin Roosevelt did not resort to this tactic in his disputes with the Court.

Again, in the 1950s, there was a Congressional outcry against several Supreme Court decisions that were deemed unduly protective of the civil liberties of members of the Communist Party. Senator William Jenner introduced a bill to withdraw the appellate jurisdiction of the Court in such cases; and although the measure failed to pass, its constitutionality was not seriously challenged. Opponents, such as Senator Jacob Javits of New York, claimed rather that the bill was unwise. One eminent law professor, Arthur J. Freund, who opposed the Jenner Bill, responded in this way when asked whether it was constitutional to limit the Supreme Court’s jurisdiction: “You can’t challenge the constitutionality of a constitutional provision” (p. 234).

The famous Engel v. Vitale (1962) decision, which held recitation by a public school teacher of a prayer in class to be unconstitutional, and the failure of a proposed constitutional amendment to overturn it to gain sufficient votes, aroused Senator Jesse Helms in 1979 to propose a “stripper” bill, as this sort of legislation is called, but it also failed of passage. In a number of instances, though, Congress has in fact stripped the federal courts of jurisdiction, and several such laws remain on the books today.

In recent years, a number of scholars have maintained that the Article III power of Congress is limited and that it cannot, e.g., bring it about that a constitutionally protected right is withdrawn from judicial scrutiny. Supporters of this position can appeal to the weighty authority of Justice Story, who thought that Congress was required to extend the full “judicial power” mentioned in the Constitution to the federal courts. Quirk successfully shows, though, that there is an extremely strong case that Congress does have the power to strip the federal courts of jurisdiction.

If Congress has the power, should it use it? Would not doing so remove a necessary check on Congress? Quirk does not think so. In his view, again a Jeffersonian one, Congress is the dominant branch of the American government; unlike the courts, it is directly subject to the will of the people. If one objects that majority rule can deprive a minority of its rights, Quirk responds that rights are safer with the people than with unelected courts. Murray Rothbard, by the way, thought much the same, especially in his later years.

To the argument that stripper bills would introduce chaos into the judicial system, since without appeal to a highest court, there would be no guarantee of uniform rulings in different jurisdictions, Quirk again has an answer. Is not experimentation desirable? Why should we not have varying rules, suited to local conditions?

If Congress has such power over the Supreme Court, why is it reluctant to use it when the Court abuses the Constitution? Quirk locates the answer in what he terms The Happy Convention. The principal aim of most members of Congress is to secure reelection to office. In order to do this, Congress avoids controversial moral and cultural issues whenever possible. Far better to have the Supreme Court, an unelected body that voters cannot unseat, take the blame for unpopular decisions.

Similarly, the Constitution clearly gives Congress the sole power to declare war. But, wishing to avoid blame should a war go badly, Congress has abdicated its power to the president. It is better, Congress thinks, for him to take the blame for Vietnam or Iraq. By its own lights, the Congressional policy has been remarkably successful. Most incumbents are reelected. The cost, though, is a severe one. Our actual Constitution, one of congressional preeminence, has been replaced by the Happy Convention, in which the president and Supreme Court have supplanted Congress. No Jeffersonian can accept this.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store.

This review originally appeared in The Mises Review, Fall 2008.

There are few topics that can divide people who are normally ideological bedfellows like the legal doctrine of the “incorporation” of the Bill of Rights against the states and the Second Amendment. This subject is rearing its head again with the upcoming appointment of a new Supreme Court justice as well as federal courts’ recent conflicting opinions in regards to the Second Amendment.

The Wall Street Journal reports that on June 2nd, “A federal appeals court in Chicago ruled … that the Second Amendment doesn’t bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama’s nominee to the Supreme Court, did when faced with the same question earlier this year.”

This ruling contrasts with a recent ruling by “the U.S. Ninth Circuit Court of Appeals in San Francisco … that the Second Amendment is incorporated against the states and local governments” — in other words, states and local governments are bound by the Second Amendment. Which court is correct?

To understand the debate in this topic, it helps to briefly review constitutional history. When the Constitution was first proposed, opponents of the new document criticized it for lacking a bill of enumerated rights, which were common in virtually every state constitution of the time. In response to these complaints, proponents of the new Constitution agreed to add a series of amendments in the first Congress that would codify restrictions on the federal government to infringe certain fundamental rights. The resulting first 10 Amendments, collectively referred to as the “Bill of Rights,” were ratified on December 15, 1791.

It is important to note two little-known historical facts regarding the proposal and ratification of the Bill of Rights. Alexander Hamilton, himself a prominent advocate of a liberal reading of the necessary and proper clause as well as a loose construction of the Constitution, argued that a Bill of Rights would be dangerous because it would imply that without such an enumeration of rights, the new government might actually have the power to infringe on these rights and might even now open the door for the government to regulate in these areas. In Federalist # 84, Hamilton wrote:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? … I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

Hamilton basically was saying that the national government lacked the power to do any of the things that the proposed Bill of Rights were prohibiting, and codifying these restrictions might lead some to argue that the national government could actually regulate in those areas, which he felt was completely unconstitutional.

In addition, James Madison, widely regarded as “The Father of the Constitution,” wanted to have the Bill of Rights restrictions to be held against the states but was rebuffed in this effort because of widely held reservations to further empower the new government over the states. The first Congress refused to even submit such a proposal to the states for ratification because it was so unpopular. As a matter of fact, numerous states had gun-control laws on the books at the time, as well as state-chartered religions. It was not that the citizens were necessarily opposed to state involvement in these matters but rather did not want any federal intrusion.

These two historical facts illustrate that, at the time of the ratification of the Bill of Rights, it was recognized by the Framers and Ratifiers that the national government had no authority to enforce the Bill of Rights against the states, and whatever authority it did have was clearly delineated in the text of the Constitution itself.

Therefore, the Bill of Rights did not give the national government any new powers but simply reiterated important restrictions upon it and not the states. This understanding is consistent with the position that not only does the Second Amendment protect an individual “right to bear arms” against federal action but also that the national government lack any power whatsoever to regulate within this area. Additionally, the states are free to regulate (or not regulate) in that area based on their own state constitutions.

The fact that the Bill of Rights did not apply against the states was not modified until after the ratification of the 14th Amendment and the judicial creation of the incorporation doctrine. The incorporation doctrine refers to the court selectively “incorporating” certain amendments in the Bill of Rights against state governments via a liberal reading of the 14th Amendment — completely contrary to the original understanding at the time of its ratification as explained by widely respected legal scholar Raoul Berger in Government by Judiciary: The Transformation of the Fourteenth Amendment.

As the late Congressman Larry McDonald explained, the rationale behind the incorporation doctrine “runs completely contrary to thoughts and purposes of the original framers…. Their intent was to limit the rights and powers of the federal government, not to help expand them.”

The courts liberal interpretation allowed the federal courts to widen their jurisdiction and judicially review numerous state laws. Some libertarians welcome this development in constitutional history as a great opportunity to spread freedom because it gives advocates of individual liberty “two bites at the freedom apple — one under his state constitution and one under the U.S. Constitution.” Sadly, the constitutional record of incorporation is not something many advocates of individual liberty can be proud of.

Constitutional historian Kevin R.C. Gutzman details the sordid history of the incorporation doctrine:

This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “reason” for the (one infers) “unreasonable” regulations crafted by elected officials…. It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes.  It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether. It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography. The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of “acceptable” punishments.

Furthermore, it was with the help of the incorporation doctrine that the “politically connected lawyers” on the court were able to invent “penumbras” giving rise to the infamous Roe v. Wade decision, and there were even discussions at the height of judicial activism to engrain a right to a minimum wage within constitutional law. Libertarians should be careful what they wish for because the “interpreters” on the court do not always see eye-to-eye with their vision of liberty.

Ironically, libertarian proponents of incorporation who usually are almost universally opposed to state power, let alone massively centralizing power in a super state, are in effect advocating the use of a larger, more powerful central government (via its court system) to force smaller governments to “be more free” without recognizing the fact that freedom means different things to different people. Such a contradictory line of thought is in direct conflict with the proud Jeffersonian decentralist tradition of those who founded our constitutional republic.

This leads us back to gun-rights activists who are currently expending numerous resources trying to get federal judges to incorporate the bill of rights against the states. Ironically, years of money spent trying to get federal judges to advance the cause of gun rights resulted in the disappointing Supreme Court decision in District of Columbia v. Heller where the “conservatives” on the court acknowledged that the Second Amendment protects an individual right “to bear arms” but that right is not “unlimited” and there is still room for reasonable restrictions on gun control.

As renowned constitutional attorney Edwin Vieira, Jr. wrote last fall in The New American, “Could Heller allow gun regulation to the point that the regulation could become a prohibition for all practical purposes? What effect will it have, if any, on existing or future gun laws in other jurisdictions throughout the country?”

The Heller decision was disheartening to gun rights advocates who believed that vast amounts of money spent on endless legal challenges would engrain an unlimited right to gun ownership in our constitutional law. Related efforts to incorporate the limited protections of Heller against the state will face similar frustration.

Those who put their faith in “politically connected lawyers” to uphold their rights and advance the cause of freedom will continue to be disappointed. Perhaps these activists will now realize that federal judges are not reliable friends of individual liberty and instead will focus their energy on a much more realistic goal of making Congress constitutional.

Patrick Krey works in finance and has an M.B.A., J.D. (law degree), an L.L.M. (masters of law) from the University of Buffalo, and is an Attorney admitted to practice in New York State. He is also a freelance writer – his work has been published online at JBS.org, PrisonPlanet.com, Antiwar.com and in The New American bi-weekly print magazine. He is also the host of the online radio show The Constitutional Coalition.

Supreme Court nominee Sonia Sotomayor’s comment at Duke Law School that the U.S. Court of Appeals “makes policy” has received a lot of attention, and deservedly so. Understanding what prompted her remark is key to understanding what has happened to our Constitution in the modern era.

Before the Twentieth Century, judges followed certain age-old traditions of judging. When considering a case controlled by a statute, judges tried to apply the precise words of the statute to the case before them. When the wording was unclear, judges either applied the pre-existing common law or sought to apply the intent of the lawmakers who passed the statute.

In rare cases where, due to drafting error or unforeseen circumstances, the words were flagrantly inconsistent with what the lawmakers intended, courts tried to follow the intent rather than the words.

When there was no controlling statute, judges resorted to common law. They first sought to deduce the solution to the present case from former cases. If that was not possible (as when the precedents were hopelessly contradictory or none was relevant), judges sought to apply the underlying principles of the Anglo-American common law.

This sometimes was referred to a “discovering the law.” Among those basic principles were that consensual agreements were to be enforced and non-consensual loss on innocent parties was to be avoided.

Early in the Twentieth Century, a group of leading lawyers rejected the traditional way of doing things. Figures such as Supreme Court Justice Oliver Wendell Holmes, Jr. and Judge Jerome Frank argued that, whatever judges pretended they were doing, they really were making law, so they might as well use their law-making opportunities to shape good social policy.

This group called themselves Legal Realists, and they denigrated traditional jurists by labeling them “legal formalists.”

In the intervening years, Legal Realism and its variants and offshoots have become Legal Orthodoxy – at least in the nation’s law schools. Legal realism also has become widespread on the bench (although my 1992 study of real estate cases found that it was not yet dominant in that area of the law).

Judge Sotomayor is clearly a legal realist, as shown by her Duke Law School comment and, elsewhere, by her approving references to Jerome Frank. Indeed, given the prevalence of Legal Realism among the liberal jurisprudential elite, it would be surprising if she were not of this persuasion.

In a constitutional case, a judge should apply the Founders’ policies, not his or her own. Obviously, though, a philosophy that encourages a judge to make policy in other cases may encourage the judge to make policy in constitutional cases, also.

Several members of the current Supreme Court are clearly of the Realist persuasion – see, for example, Justice Stephen Breyer’s dissent in the recent D.C. gun case. Justice Souter also is a Realist who dismisses arguments he doesn’t like by branding them as “categorical formalism.”

Souter’s replacement by Judge Sotomayor would not be a big change on that score. But it would be a missed opportunity to render our government more faithful to its constitutional roots.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.