In and of itself, the federal government possesses no power.

Zero.

Zilch.

Nada.

Most Americans will read my opening statement with raised eyebrows. Some will immediately dismiss it with a shrug, figuring the author some kind of nutcase. Others will simply shake their head in disbelief, or perhaps blow it off  with an eye-roll.

In fact, most Americans view Washington D.C. as the font of all power. The final arbiter. The last word.

But the attitude held by the majority of Americans toward the federal government rests upon a gross misunderstanding of the nature of political power.

In truth, the federal government possess no power. At least none that it wasn’t granted by you and me.

You see, we the people ultimately possess all authority.

It was on that principle that our founding fathers rebelled against the rule of the British Crown, and it was upon that foundation that the United States was built.

Fundamental to the thinking of our founders was the idea that all human beings exist as autonomous moral agents. The Creator endows each of us with a free will, and He never forces his will upon humankind. Thus, no human being has the right to force her or his will on another person.

The writings of John Locke, an English philosopher and theologian, greatly influenced the founding generation. He explained it this way.

To understand political power right, and derive it from its original, we must consider what state all men are naturally in, and that is, a state of perfect freedom to order their actions and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature; without asking leave, or depending on the will of any other man.

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst the other without subordination or subjection; unless the Lord and Master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.

But in order to live together and prosper, people must cooperate. Human beings possess an innate desire to seek out the fellowship of others. This drives us to group together in political societies. It follows that some form of government becomes necessary, and that requires individuals submit to authority and create a mechanism to protect life, property and individual liberty.

Consent is the key to understanding the scope of governmental power. Each individual in a political society consents, of his own free will, to be governed. Citizens remove themselves from the state of nature (perfect freedom) and willingly submit to the authority of government.

Thomas Jefferson summed up these ideas in two sentences of the Declaration of Independence.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

The Constitution of the United States is simply a legal document granting limited, enumerated power to a federal government. But ultimately, the power rests with the people. Without the grant, the government has no power. In fact, it ceases to exist. We willingly cede a small bit of our perfect liberty to a general government – in much the same way one person grants another the legal authority to handle their affairs through a power of attorney.

The wording of the preamble makes this clear. Constitutional scholar Robert Natelson points out that the framers followed a common practice in royal charters, identifying the grantor using large majestic letters.

We the People of the United States…do ordain and establish this Constitution for the United States of America.

And power we the people grant, we the people can take away. The Declaration of Independence continues:

That whenever any Form of Government becomes destructive of these ends, 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.

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Too many Americans place government in the ultimate place of authority, assuming it decides what we may or may not do. Too many Americans treat government as an almost omnipotent entity. Too many Americans turn and face Washington D.C. with awed reverence.

The veneration is misplaced.

In truth, we – the American people – reserve the bulk of power to ourselves.

The federal government  was intended to exist and operate bound by the Constitution, a grant of limited authority, constraining federal power to specific spheres, limiting it to specific functions, and defining its scope and role.

And as the grantor of all power and authority, we the people must insist that the federal government stay within its properly defined powers and role.

“It is certain that the most natural and human government is that of consent, for that binds freely, … when men hold their liberty by true obedience to rules of their own making.”, William Penn

 

King Constitution

It seems a paradox that people who claim to revere the rule of law, are sometimes the same people who would advocate disobeying the law.  How can someone advocate for the rule of law at the same time as advocating for civil disobedience, nullification or jury nullification?  Wouldn’t these activities undermine the rule of law and lead inevitably to chaos and anarchy?

The beginning of the answer to this paradox comes to us from Thomas Paine.  In Common Sense, a document which “challenged the authority of the British government and the royal monarchy”, Paine wrote,

so far as we approve of monarchy, that in America the law is king.  For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.

So the law, the king, is the Constitution.  Everyone, even our federal legislators, judges and executive officers, is a subject of the Constitution.  When our legislators write laws that violate the Constitution, it is our duty as citizens to defend the king….  To resist.  It is our duty as jurors to find accused violators of Unconstitutional laws to be not guilty and it is the duty of the state official to nullify Unconstitutional federal legislation.  The citizens and the States are empowered, and duty bound, to ensure that federal officials remain loyal to King Constitution.

The next piece of the puzzle comes to us in the often discussed Kentucky Resolutions of 1798, where Thomas Jefferson wrote, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force”.

Upon reflection, we may realize that disobeying a void law is like dividing by zero.  It can’t be done.  In order to be disobeyed, a law must first be legal.  Civil disobedience, nullification and jury nullification are ways for us to formalize the recognition that a law is void.

So the paradox is answered when we recognize that the lawless behavior comes from attempting to enforce an unconstitutional law, not from resisting it.

King Democracy

There was a time when most Americans understood these duties of ours.  Here in Pennsylvania, many of our citizens were involved in the underground railroad.  They risked their own freedom and prosperity in order to help escaped slaves find freedom in the North.  Northern juries often refused to find these people guilty and Pennsylvania’s legislators passed Personal Freedom Acts to resist the Federal Fugitive Slave Acts of 1793 and 1850.

More recently, some of us became complacent and took our Liberty, and the prosperity which accompanies Liberty, for granted.  Many of us forgot these important duties of ours.  Many of us even forgot about King Constitution.  We are taught in grade school that we live in a democracy and democracy means “majority rules”.  Whatever the majority decides must be obeyed.  In this view, the Constitution was just a set of rules for finding the will of the majority.

This idea is antithetical to our founding. The Declaration of Independence, our foundational document says,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

The majority cannot vote to take away your Rights without your consent!

One important component of our democratic republic is decision making by a majority.  However, it is often forgotten that our democratic republic also depends upon mutual consent.  The majority may pass laws, but the majority cannot consent to them on behalf of the minority.

As the Continental Congress, and even William Penn knew, if we are not governed through consent, then we are governed through force… tyranny. Just like King George III, King Democracy is a tyrant.

Monopoly or Competition? 

Another common belief in America today is that the supreme court has the last word in deciding whether a law is constitutional.  In Supreme Injustice, Andy Quesnelle addressed this misconception. He wrote about the conflict of interest that occurs when the federal government is the sole arbiter.  Andy wrote,

In a conflict between A and B, we, as a society, do not permit A to be the sole judge of who wins. Nor do we allow B to do so. The reason is simple. If A can decide the merits of his own conflict with B, B loses, every time. Conversely, if B can decide the merits of her own conflict with A, B wins. Its simple human nature. No person can be trusted to be the judge in their own case.

That is one reason that it would make no sense for the federal government to be the sole arbiter. Another reason is that competition will improve the quality of the supreme court’s decisions. Without competition, the supreme court can look at these words,

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

and decide that they give the congress the authority to determine how much wheat a Pennsylvania farmer may grow on his own farm to feed to his own hens.

It is part of the American experience that monopoly power reduces quality and competition increases quality.  Why should this be any different for interpreting the Constitution?  The federal government has declared a monopoly for itself which doesn’t exist.  Rather than blindly submit to the monopoly, the States may – the States must – decide for themselves whether a law is Constitutional.  In addition to providing a check against bad decisions, this oversight also promotes good decisions from the federal government.

Like the People, the States have the power and the responsibility to refuse to consent to Unconstitutional laws.  We must all make sure that our own State officials are aware of this responsibility.

Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

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

Some say that you can “vote with your feet” – a phrase popularized by Ronald Reagan (most often taken out of context) in 1976 and a philosophy some attribute to Ayn Rand which was alluded to in Atlas Shrugged. Nevertheless, taken for only the meaning of the phrase in itself, it is questionable whether that philosophy exists today or if it is even plausible. Others say, “All politics are local,” a catchphrase quote from Democrat Thomas O’Neill. However catchy these phrases might be, they are hardly true if we stare realism in the face.

Evidence of this can be seen in the back room dealings, the handling of legislation of the House and Senate, and the constant push against the will of the people. Last week, I watched a live vote on C-Span of the health-care reform bill and was appalled by the remarks, demeanor, and the political bribes that surrounded this legislation. Who was it that said “transparency?”

That is a joke – nothing more than a campaign ad to gain power along with the slogan of change and hope. Pelosi, Reid and Obama have no such knowledge of the meaning of transparency. What they do know better than anything is “agenda.” For all the Democrats that are waiting to come after me, let me go ahead and say the Republicans have shown the same tactics, so the matter is not unprecedented on either side.

So, the votes were cast – just a little over enough for a win. Slightly fishy, as I am sure Pelosi knows who is up for a tough race for their seat and who is not. This is an obvious sign that this bill is highly unpopular. I would love to say all this came as a surprise, but it doesn’t – not now, not in this era. The federal government voting against the will of the people in order to fulfill their own wishes and desires is now the common trend. Whether you believe this legislation is right or wrong, you cannot negate the fact that an overwhelming majority of the public was against it.

Are there problems with our health care system? Yes, absolutely. Did the majority of people believe this was the answer? The answer: simply no. Argue with the data, not me. Therefore, the trust in our federal government dwindles and again the approval rating of the Congress drops even lower. As stated last week, give them all ten points of standard deviation and they are viewed as an utter failure by the majority.

They cannot run a Social Security program, the US Postal Service, Medicaid, Medicare, Fannie Mae, Freddie Mac, yet they can run a health care system? To the non-believers – do you not love paying Social Security taxes every two weeks? And to what end? Long ago a promise was made that this money would be placed in a trusted fund; not so – spent, disappeared, and we have still racked up a massive debt. China is on its way to owning the United States. Wherever you stand on the aisles of politics, common logic should say you cannot spend what you do not have no matter how good you think it might be.

If the money is not there, it simply is not there. Bluntly speaking, the money is not there unless you want to steal from the rich and possibly the middle class, which is simply socialism. If you have doubts that it is socialism, read Marx. The underlying tenant of Marx’s political philosophy: redistribution of wealth from beginning to end. Simply stated, stealing what people have worked hard for because others feel that they are entitled to something. Hope for a utopian society? Not in this life.

Maybe you want this and maybe you do not. My assumption is that the many hard working American’s do not. Why would they? Another assumption: those who do not want to work and earn want things handed to them on a silver platter as if they are due to be paid something. Any reasonable person should know that no one in this life is entitled to anything. What do we deserve? At most, we should embrace charity and help those in need – not mandates from an ever increasing federal government.

What is next? No one knows with certainty, but I believe the smiles on Obama’s, Pelosi’s, and Reid’s face will soon change. Yet, another power monger will step in to fill their shoes no matter what party wins the favor of the people. That is, unless we can truly say, “All politics are local.” However, this requires the will of the people and the power of the states and a certain degree of boldness regarding state rights.

Thomas Jefferson once had the fortitude to stand against this and established the doctrine of nullification as he opposed an overreaching federal government in the Kentucky and Virginia Resolutions of 1798. A profound statement by Jefferson:

“I consider the foundation of the Constitution as laid on this ground that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people. To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”

Therefore, a line is drawn in the sand between the Congress, the States, and the will of the people. Of course, men of valor comparable to Jefferson must be elected at the state level and this solely depends on the people and a gallant effort to bring power back to the states. To this end, it might be plausible that soon we can all confidently say, “All politics are local” and you may truly have the ability to “vote with your feet.” If the majority of a state wants it, let it be – let them say yes. If they do not, let it be – let them say nay and adopt the doctrine of nullification. Only then will power rest in the hands of the states and the people, which happens to be their diminishing tenth amendment constitutional right.

This diminishing tenth amendment right is a breaking point that we undoubtedly reached long ago. And to that I quote Thomas Jefferson:

“Whensoever the General Government assumes un-delegated powers, its acts are un-authoritative, void, and of no force.”

Shane Musgrove [send him email] is a freelance writer living in Vail and Denver, Colorado.

2009 has seen the greatest proliferation in American government command and control in over half a century, together with its corresponding constriction in liberty. Power is increasingly being centralized in the federal government—at the expense of individuals and their voluntary associations — with the creation of multi-billion or trillion dollar new programs, massive bureaucracies and breathtaking income redistribution nowhere authorized in the Constitution.

While the current engorgement of our federal government already implemented or being proposed is unprecedented, it follows much the same path as earlier episodes, such as FDR’s New Deal. That is why there is wisdom to be found from those who understood and opposed that accumulation of social power in the hands of the government. Perhaps no one offers us more wisdom in this regard than Felix Morley, in his The Power in the People (1949).

Morley was a Rhodes Scholar, a Guggenheim Fellow, a Ph.D. from the Brookings Institution, a Pulitzer Prize winning editor of the Washington Post, President of Haverford College, and founder of Human Events, who has a journalism award named for him. According to James Person, he was “respected for his acumen and fairness by his peers across the political spectrum,” and reviewer Edith Hamilton termed The Power in the People “a remarkable book, nobly written and profoundly thought out.”

Morley’s key distinction The Power in the People was between self-government and coercive government. As Leonard Liggio summarized it,

Morley based his distinction between Society and State on the origins of the words. Society is derived from the Latin socius, a companion. Society and association are rooted in the voluntarism of companionship…Morley continues on to the word State, which is rooted in involuntary or forced association. He sees the absence of free choice and free contract as the basis of the word status, from which state is derived.

When a new edition of The Power in the People was produced in 1972, 23 years after its first publication, it was reprinted without change. A dozen years later still, Sydney Mayers concluded, “Nor is any change required currently.” Consider how much the same is true today.

This Republic is grounded on the belief that the individual can govern himself.

[A] political system designed to encourage people to govern themselves is increasingly distorted in order to subject them to remote administrative dictation.

The founders certainly believed, and frequently asserted, that the primary purpose of government is to secure private property.
The Constitution of the United States sets specific limits to the power of government so that the latter may not repress the individual characteristic of liberty.

[W]e may awaken to find that a government established to secure the blessings of liberty has actually produced…tyranny. Indeed, that…outcome is wholly probable whenever democratic processes place representative government in the hands of men willing to exploit ignorance in order to further the centralization of power…

[I]t is impossible to read even the bare text of the Constitution at all carefully without realizing that the American Republic was specifically designed to safeguard individual enterprise against the state.

[C]oncentrated political power is, and continuously should be, suspect by those whom it subjects.

[A]ny system of government cherishing the individual should make allowance for many conflicting viewpoints and should not impede their voluntary adjustment. The only workable alternative to a governmental system that encourages agreement is one that in encourages repression. And the latter, no matter how fair its initial pretense, is in nature, and will therefore eventually become in action, a system of tyranny.

Self-government is the very heart and core of the American way of life … the dominant emphasis was on self-government rather than on imposed government; on the development of Society, not on the aggrandizement of the State.

[T]he real sources of American strength…[rest] on the belief that the individual is at least potentially important, and that he fulfills himself through voluntary co-operation in a free society. This belief implies an instinctive hostility to the State—an agency created to discipline society and with a consequent tendency to assume the direction of all social functions.

[T]he issue stands out clearly. Shall man be subject to the authoritarian State or shall he restrain State powers to the minimum necessary for an orderly Society?

[I]n America the individual, retaining sovereignty, intended to fulfill his destiny through a free Society, holding the State in leash.
Although the democratic ideal encourages individualism, the actual operation of a democratic system produces a centralization of power hostile to self-reliance.

[A]rbitrary power in a democracy may be just as great a menace to liberty as the outright tyranny of a dictatorship.

[T]he survival of the Republic is not endangered by weakness in the central government, but by popular pressure for its aggrandizement.

The State, in short, subjects people; whereas Society associates them voluntarily.

Man…is now exchanging membership in Society for servitude to the State.

[T]he development of the State has been that of constant aggrandizement. Necessarily, that aggrandizement has been…at the expense of Society and of the individuals who create Society…

Power it has, and force, and techniques to make its commands effective…But since the State has no conscience, and is primarily a continuing mechanism of material power, the human welfare side of State activity should blind no thoughtful person to its underlying menace.

Americans have…largely ceased to reflect upon the implications of the unconditional surrender of power to political government…wholly contrary to the principles of the Republic …

Power in the hands of the State is less inhibited morally and more destructive physically than in Society.

State power, no matter how well disguised by seductive words, is in the last analysis always coercive physical power…As we come to recognize that the State is the repository of coercive power, and by its nature works ceaselessly to enlarge that power, much that seems shameful and senseless in the world today becomes intelligible…

A person who maintains that the State should solve, by necessarily coercive methods, any problem that individuals are capable of solving voluntarily, is…the very opposite of a liberal. The essence of tyranny is reliance on external, as opposed to internal, compulsion.

[R]emember that true liberalism insists on protecting the individual from tyranny of every variety, and that tyrannies are almost always imposed…by democratic means.

As State controls become more plausible, more far-reaching and more effective, the tendency of democracy is to succumb to the demagogue becomes ever more pronounced.

The American tradition is of course completely opposed to authoritarian government … The American conviction is that the ‘Safety and Happiness’ of the governed takes precedence over every governmental prerogative and that deference is not necessarily owing to those temporarily in a position of political command.

Encroachment on the rights of others is not prevented by withdrawing the power to encroach from individual hands and vesting it in government bureaus.

The American theory is that every man has within him the potential to make a significant contribution of some kind to human welfare. Therefore every minority…must be protected against the ever-possible tyranny of mass opinion.

[E]xalting the State is steadily to augment its physical power at the expense of Society. The more that power can be concentrated, the more perfect the State becomes as an instrumentality of suppression in the hands of those who believe in suppression…

Only one form of government can nurture liberty, and that is personal self-government.

The distinguishing characteristic of American civilization is the subordination of centralized power in behalf of individual liberty.

The market does not become more humane under the direction of the amoral institution that we have seen the State to be.

To transfer power to the State…serves only to monopolize power in wholly irresponsible hands…

[T]he tendency of the American people to turn to political authority for the solution of their economic problems was tragic…because there is no solution…in this fancied remedy…once a people are lost in the recesses of this blind alley, they will learn that it is almost impossible to find a way out.

Enlargement of the area of State authority therefore does not enlarge, but definitely contracts, the condition of economic freedom…this false god over every form of social organism is enormous and devastating.

One should not require personal experience with ration cards and queues and bureaucratic bungling to appreciate the practical superiority of the free enterprise system over any form of State-directed economic planning.

[S]ocial legislation is a sign of retrogression, not progress. It should be obvious that there has been widespread individual failure if humanitarianism has to be enforced by disciplinary governmental action.

Social strength can be diminished by a constant centralization and enlargement of governmental functions, the great majority of which are unproductive and…weaken the economic basis by the cumulative effects of regulation and taxation.

[T]here are many Americans who attest their willingness to accept political dictatorship, if the State will only furnish them with periodic handouts and otherwise show continuous benevolence in the ordering of their lives.

The reformer…is usually disposed to believe that improvement can be imposed by government fiat…placing great confidence in the coercive power of the State.

[T]he one enduring political folly is to concentrate in the hands of ambitious men power that they do not have the restraint to exercise wisely.

Nothing that advances the power of the State over Society, thereby subjecting the individual to the State, can properly be called liberal.

[T]he most that any government can do is set people ‘at liberty.’ The State can stabilize the condition of freedom, and that is its sole excuse for being…men must develop their liberty from within. It cannot be doled out by government agencies.

60 years ago, Felix Morley could say that “The worth and validity of American political principles are now being aggressively challenged by the philosophy of government planning.” That challenge is vastly greater today.

According to Joseph Stromberg, “Felix Morley… understood the old republic, the constitution, peace, and free markets, as well as their opposites, empire, lawless rule, war and generalized statism.” That is the understanding Americans need to rediscover to defend our liberty.

And doing so by reading The Power in the People brings with it what Sydney Mayers called “an unusual privilege, the rare experience of enjoying brilliant literary style whilst absorbing education thanks to the author’s keen mind and dexterous pen.”

Gary M. Galles is a professor of economics at Pepperdine University.

copyright 2009 Gary Galles