by Brian Roberts

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?

reclaiming-american-revolutionFreedom 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 Permission to reprint in whole or in part is gladly granted, provided full credit is given.

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.