Are the States to be unquestioningly submissive on all Supreme Court rulings? Is the “case closed” on a subject once the Court has spoken? Can there be any recourse for the States when a decision appears to be unconstitutional?

Thomas Jefferson and James Madison addressed these specific questions and their insight provides us some clear answers.

An Unchecked Judiciary

In 2012, the American public awaited a ruling on the Supreme Court case National Federation of Independent Business v. Sebelius with great anticipation. The outcome would decide the “constitutionality” of the Affordable Care Act’s (Obamacare’s) individual mandate. The mandate required an additional IRS payment from individuals who failed to obtain healthcare coverage during the previous year. Chief Justice John Roberts, who cast the deciding vote, upheld the constitutionality of the mandate, ruling that it was simply another form of taxation, and not a penalty, as it appeared to be if taken at face value.

To his credit, Roberts at least refrained from justifying the mandate under the auspices of either the Commerce or the Necessary and Proper Clauses of the Constitution, tediously explaining why he was unable to do so. On the Commerce Clause, he correctly observed that:

“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do.”

He also insisted that the individual mandate could not be “…sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms.” He went on to explain why:

“Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power.  The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is ‘necessary’ to the Affordable Care Act’s other reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.”

Roberts correctly recognized that validating congressional power to implement the individual mandate under the Necessary and Proper Clause would be a horrid misapplication of the provision. It would essentially require inventing a new enumerated power. Of course, Congress had gone beyond its enumerated powers already by passing the Affordable Care Act in the first place.

After belaboring these points, Roberts declared that it was OK for Congress to implement the mandate, so long as it was done under the Taxing and Spending Clause.

Chief Justice Roberts’ ruling elicited both incredulity at, and simultaneous resignation to, this unexpected decision from a ‘conservative’ judge. Aside from the glaring fact that the Affordable Care Act itself is unconstitutional (after all, which enumerated power gives Congress the power to fund healthcare?), Roberts’ reasoning did little to hide the obvious fact that the federal government is now forcing its citizens to buy something by simply rebranding a penalty as a ‘tax.’

Roberts’ pathetic contortions looked for all the world to be a premeditated determination by the Court to find a way to declare the individual mandate constitutional by any means necessary – the spirit of the law be damned.

The Bigger Picture

So, does this recent Supreme Court ruling confirm what so many Americans now believe – that We the People are unconditionally at the mercy of opinions offered by five of nine unelected politically connected lawyers?  Is the case permanently closed once the Court has ruled?  Does the Supreme Court have the final say, even when the outcome is clearly unconstitutional based on the original intent of the Constitution?

Jefferson and Madison didn’t think so.

In response to four bills passed by Congress in 1798 known as the Alien and Sedition Acts, Jefferson and Madison penned the Kentucky and Virginia Resolutions of 1798 – emphatic declarations explaining the limits on federal power and asserting states have the authority to take action to stop federal overreach.

The Alien and Sedition Acts expanded the power of the president in particular and the federal government in general. The three alien acts vested judiciary power in the president and restricted due process for resident aliens, a violation of the Fifth Amendment. The Sedition Act was even more nefarious. It made “writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States” a federal crime.

Although the obvious reason to protest the Sedition Act was that it infringed on First Amendment rights, Jefferson opposed it in his Kentucky Resolution of 1798 because it violated the Tenth Amendment. He argued that the Constitution gives Congress the authority to legislate a small number of actions. That list does not include the libelous actions that the Sedition Act addressed.

“Resolved, that the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the High Seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, ‘that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,’ therefore also the same act of Congress passed on the 14th day of July, 1798, and entitled , ‘An act in addition to the act entitled an act for the punishment of certain crimes against the United States;’ as also the act passed by them on the 27th day of June, 1798, entitled ‘An act to punish frauds committed on the Bank of the United States’ (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the constitution) are altogether void and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective states…” [Emphasis added]

Reciting the text of the Tenth Amendment, Jefferson insisted that Congress had no authority whatsoever to pass legislation relating to crimes beyond those specifically delegated by the Constitution.

Madison also deemed the Alien and Sedition Acts illegitimate exercises of federal power in his Virginia Resolution likewise invoking the Tenth Amendment.

“…the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the ‘Alien and Sedition Acts’ passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thererto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.” [Emphasis added]

Both Madison (often called the Father of the Constitution) and Jefferson (the author of the Declaration of Independence) resisted broad interpretations of the Constitution that might expand the clear delegation of federal powers. Jefferson made clear the limits of federal power and the general government’s relationship to the states in the opening statement of the first section of the Kentucky Resolutions.

“Resolved, that the several states composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes,” [Emphasis added]

He went on to summarize the words of the Tenth Amendment, explaining that since the states agreed to a compact forming a central government, they are entitled to maintain all powers other than those few they specifically delegated to that government

“…they […] delegated to that Government certain definite powers, reserving each state to itself, the residuary mass of right to their own self Government;…”

Judicial Branch Supremacy

Jefferson and Madison obviously believed the federal government was limited by the enumeration of powers in the Constitution, and that it could only legitimately exercise the few powers the states had agreed to delegate to it. In the Kentucky Resolutions, Jefferson went even further to explain that since there was no common judge in the compact (agreement) between the parties (states) that had acceded to it, then “each party has an equal right to judge for itself” in questions of federal power, This would ostensibly include unconstitutional judicial rulings.

“And that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself…” [Emphasis added.]

Madison expounded on the Virginia Resolutions of 1798 in the Virginia Report of 1800, and answered many of the Federalists’ objections to the resolutions. Madison agreed with Jefferson that the states maintain an “ultimate right” to judge if the Constitution has been violated by any of the three branches of government – the judiciary included.

“The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another–by the judiciary as well as by the executive, or the legislature.” [Emphasis added.]

Madison maintained that the judiciary is the final arbiter in disputes between federal government branches, but can never have the final say in cases involving a dispute with the states over constitutionality, since all the branches of government derive their delegated powers from the parties to the compact (the states).

“However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts.” [Emphasis added.]

Jefferson agreed with Madison to a point, but actually viewed the federal judiciary as having even less authority.

In a letter to Spencer Roan in 1819, Jefferson plainly declared his view that the judicial branch of the federal government is not the final interpreter of the Constitution, be it for disputes between the government and the states, or even disputes between governmental branches.

He expounded, in no uncertain terms, that if the Constitution really had endowed the judicial branch with the power of a final and unquestionable arbiter (a position most seem to accept today), then the Constitution had effectively already committed suicide.

“In denying the right they usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se.” [Emphasis added.]

He went on to warn that if this doctrine of unconditional, absolute judicial interpretation were correct, then the judicial branch’s manipulation of the Constitution would be limitless, and there would be nothing left to keep it in check.

“The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also…” [Emphasis added.]

In contrast to a view of unlimited judicial supremacy, Jefferson asserted that the Constitution allows each department (branch) of government to ultimately determine its own interpretation of the Constitution in a dispute.

“My construction of the constitution is very different… it is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.” [Emphasis added.]


Although Madison and Jefferson disagreed on judicial supremacy between federal governmental branches, they agreed that the States should not submit to unconstitutional court opinions, and they should instead resist the “progress of the evil of usurpation,” through interposition and nullification. After all, Madison pointed out, a concept of uncontestable, federal judicial supremacy over the states would be illogical – it would invalidate the states’ authority to initially delegate such powers in the first place, and could make the reversal of those usurped powers impossible.

“…the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.” [Emphasis Added.]

The states are not powerless subdivisions of an omnipotent federal government – they legally retain all sovereign powers that have not been specifically delegated to the general government in the Constitution. All that is needed is for the states to appropriate those powers – by resisting illegal Supreme Court rulings rather than silently submitting to them.


The 10th Amendment

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