How should a free people respond to unconstitutional acts? Most people today use three strategies, none of which reflect how the founders told us to respond to usurpations of power.
1. CALL CONGRESS!
First, people try pressuring Congress. They’ll organize campaigns to call members of congress, or they’ll march on the Capitol building.
In essence, this is about trying to convince Congress to stop doing things they weren’t supposed to be doing in the first place
Unsurprisingly, this has been mostly a complete failure. But even if it could be argued that it works from time to time, it’s still not a state of freedom.
As St. George Tucker put it, “It is the due restraint and not the moderation of rulers that constitutes a state of liberty; as the power to oppress, though never exercised, does a state of slavery.”
2. SUE IN FEDERAL COURT
Second, people file lawsuits in federal court, hoping that federal judges will limit federal power.
But, there are some serious problems with this strategy too, as James Madison noted in his Report of 1800:
“Dangerous powers, not delegated, may not only be usurped and executed by the other departments, but the judicial department also.”
We don’t need to go far beyond the Commerce Clause for a perfect example of this. The worst of it started during the FDR era with the case of Wickard v Filburn, which set the stage for the Court to hand Congress almost complete and total economic power.
The expansive view of commerce was then reaffirmed in the 2005 case of Gonzales v Raich. And this was used as precedent in NFIB v Sebelius to uphold the Affordable Care Act.
3. VOTE THE BUMS OUT
Finally – and most prominently – people focus heavily on elections in the hope that new people in office (if the incumbents even lose) won’t be tempted by the power of government handed to them.
In his draft of the Kentucky Resolutions of 1798, Thomas Jefferson pointed out that this “vote the bums out” strategy was only to be used for addressing bad policy that is still within the bounds of the Constitution:
“in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy”
WHAT MUST BE DONE
In those situations where the federal government goes beyond the limits of the Constitution, which is a huge majority of them today, Jefferson said a different path was necessary:
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy”
Not just a mere good idea to try later, or after you exhausted other options, but THE rightful remedy for every unconstitutional act.
Jefferson continued, noting that without such a response, the people of the states would be living at the will and discretion of the people violating the constitution – in essence, giving them unlimited power:
“Every state has a natural right, in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” [emphasis added]
Lysander Spooner echoed this Jeffersonian view in his 1850 essay, A Defence for Fugitive Slaves:
“To say that an unconstitutional law must be obeyed until it is repealed, is saying that an unconstitutional law is just as obligatory as a constitutional one, – for the latter is binding only until it is repealed. There would therefore be no difference at all between a constitutional and an unconstitutional law, in respect to their binding force; and that would be equivalent to abolishing the constitution, and giving to the government unlimited power.”
In short, a free people doesn’t wait for government to limit itself.
That’s just how John Dickinson described it:
“For who are a free people? Not those, over whom government is reasonable and equitably exercised, but those, who live under a government so constitutionally checked and controlled, that proper provision is made against its being otherwise exercised.”
In other words, as soon as government gets out of line, there should be an immediate push back to keep it in check.
Future Supreme Court justice James Iredell agreed in a speech during the North Carolina Ratifying Convention:
“The only resource against usurpation is the inherent right of the people to prevent its exercise.”
Again, not just a good idea. The only way to deal with usurpations of power.
Iredell continued, with the only logical next step:
“The people will resist if the government usurp powers not delegated to it.”
Again, echoing this view, Lysander Spooner may have summed it up best:
“This right of the people, therefore, to resist usurpation, on the part of the government, is a strictly constitutional right. And the exercise of the right is neither rebellion against the constitution, nor revolution – it is a maintenance of the constitution itself, by keeping the government within the constitution.
It is also a defence of the natural rights of the people, against robbers and trespassers, who attempt to set up their own personal authority and power, in opposition to those of the constitution and people, which they were appointed to administer.”
Ultimately – it’s up to “we the people” to protect and defend their own constitution and their own liberty – whether the government likes it, or not.
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