Last week, Boston Bruin’s goalie Tim Thomas declined an offer to visit the White House and shared these thoughts regarding his motivation:

“I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People. This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government. Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL. “

This individual choice explained in terms of liberty and freedom is bold; and highlights the message of a large set of Americans with significant and very real disappointment with leaders of both parties.  In addition, these words express a genuine frustration with the tools available to the people to protect fundamental rights.

I believe a sentiment common to  many American citizens can be boiled down to: The Constitution no longer seems to protect individual liberties from corrupt politicians. Why?

The answer lies, in part, on an over-reliance on the Separation of Powers as a check on government; while other power decentralizing components of the Constitution are simply ignored.

Thomas Jefferson expressed the importance of binding the hands of the central government directly:

“The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so they will not become the legalized version of the first.”

Is it possible that these chains on federal power have been relaxed to a point that the beast of corrupt government has been set free to roam?  Is it possible our comforting Separation of Powers has been abused to the point of failure?

A general school textbook would outline the branches of government as executive, legislative and judiciary. This places different governmental powers into various branches designed to provide a level of power sharing within a governmental body. This “top-level only” model can break down fundamentally when the goals of the various bodies of government become aligned against the interests of those to be governed.

As an example, let’s consider the recently passed NDAA legislation. This legislation provides a relevant and timely example because it includes undeniably unconstitutional provisions that provide powers to the federal government that are aligned against the citizens. In effect, the legislation allows the federal government to indefinitely detain U.S citizens without trial, a blatant attack on the Fifth Amendment.

How has the separation of power protected the people in this instance? Well, it hasn’t, the bill passed the senate with 93 Senators voting for it, sailed through the house and then was signed immediately by the President. In his signing statement, the President acknowledged the “detention without trial” provisions, indicating that he would never use them. While this statement might sound comforting, it shouldn’t; it clearly proclaimed that the executive branch did indeed have this new power, and it could indefinitely detain citizens at the President’s sole discretion.

The legislative and executive branch, even though they are separate bodies, have failed to provide the check on power necessary to remove these unpopular, unconstitutional and outright dangerous components of the NDAA legislation.

What might happen in the future with the judicial branch? There is now a law on the books in direct opposition to the limitation set forth by the Fifth Amendment. For the immediate future, the executive branch is authorized to detain citizens in ways previously and specifically denied by the Constitution. Regardless of any decision the judicial branch makes in the future, this is the reality for some years. Even if the Supreme Court ultimately gets this right, U.S. citizens will have been exposed to many years, possibly a decade, without a fundamental right to trial. During this time, the President will be free to detain individual citizens for whatever reason, effectively stealing years of their life.

Of course, there is no reason to assume that the Supreme Court will eventually rule this legislation unconstitutional. In practice, leaving the interpretation of a fundamental right in the hands of 9 politically-appointed judges is risky. Jefferson warned:

“… .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….”

Clearly, Separation of Powers, although significant, is not the complete framework that our founder’s envisioned for the protection of liberties. In fact, possibly more important than the check on power *within* the federal government, provided by the Separation of Powers; is the check on power *of* the federal government, provided by the various state governments.

State Governments check Federal Power

The United States Constitution gives significant power to the individual state governments. States are not mere provinces set up to take orders from a central authority in Washington DC and execute these orders regionally. States are afforded sovereign powers of their own. In Federalist #45, the powers assigned to the individual states were summarized by James Madison:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

As sovereign entities with their own executive, legislative, and judicial branches of government; states are free to govern without federal influence within the confines of their own state constitutions. In addition to the domestic powers outlined by Madison, states assumed the responsibility to actively limit central government’s natural desire to grow beyond the enumerated powers of the Constitution.In Federalist #28, Alexander Hamilton spoke concisely of the state’s duty to provide a check on the power of a growing central government:

“…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”

When the federal government signs unconstitutional legislation into law, a more timely solution is required than the slow-moving and centralized federal judicial branch. This is especially true for unconstitutional laws that deny any citizen a basic right. State nullification of these laws is the proper course. States naturally pose an impediment to centralized power, and this competition between the central government and the state government is the key to preserving liberty in such a culturally diverse and regionally large country as the United States.

Interestingly, the recent NDAA legislation shares commonality with the historic Alien and Sedition Acts of 1798; in that both laws attempt to circumvent clear Constitutional rights through standard legislation. In 1798, as a response to the Alien and Sedition Acts, Jefferson and Madison, drafted resolutions outlining the proper course states should take when the central government assumes powers outside the powers specifically granted by the Constitution. Jefferson wrote:

“Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . . that the government created by this compact [the Constitution for the United States] was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; . . . and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorised by the Constitution, shall be exercised within their respective territories.”

In effect, Jefferson believed that states should reject, or nullify, unconstitutional federal laws through state legislative declaration; and deny federal authority of enforcement within their state boundaries.

State Nullification of NDAA

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The NDAA legislation that was signed by President Obama on New Year’s eve. Already, Virginia has introduced and passed out of committee legislation targeting the “indefinite detention” components of NDAA. More on this bill can be found here:

In addition, sources close to Tenth Amendment Center (TAC) expect up to ten more states to introduce similar legislation in the near-term. State legislators close to TAC has expressed sentiments strongly against the NDAA.

The Tenth Amendment Center recently released a suggested plan for state legislators seeking to nullify the NDAA in their state. You can help by forwarding this information to your state representative. More about the NDAA: Liberty Preservation Act is available here:

Brian Roberts

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.”



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