When it comes to limits of federal power under the Constitution, the view of many Founding Fathers fits under the same theme. That is, federal acts outside of the Constitution are null and void.
Oliver Ellsworth, the Supreme Court’s third Chief Justice, put it this way during the ratification debates: “If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void.”
In Federalist #78, Alexander Hamilton wrote, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”
And in 1798, Thomas Jefferson wrote that “whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
See the pattern?
I won’t get into a laundry list of everything that should qualify as “void” today under the Founders’ Constitution, but here are a few to set the stage: ACA, ATF, DEA, EPA, GCA, NFA, NSA, TSA.
WHAT TO DO?
It’s my opinion that no one in their right mind should expect the federal government to limit itself. This also includes the federal courts, a branch of the federal government. And, as I noted in my July 2013 column at Personal Liberty, “voting the bums out” hasn’t been a good strategy either.
In other words, if you have a problem with the federal government, you need something outside the federal government to stop it. That would be the states and the people.
First, let me be clear. This isn’t my idea. I didn’t dream it up one night. It comes from some of the most prominent Founding Fathers.
While James Madison wrote the most specific and complete set of instructions on how to stop the federal government without relying on the federal government to limit itself, he was far from the only founder to talk about states and individuals as a check on federal power.
Even Hamilton agreed. In Federalist #28 he wrote that State governments would offer security against “invasions of the public liberty by the national authority.”
A little-known Founding Father from Massachusetts also made the case, just like Madison and Hamilton did, that the states were the strongest check on federal power should they work together to oppose it.