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Federalism & The
Limitation of Powers
Constitutional Primer # 2
- 4/28/04
As appeared
in the April M E R I D I A N M A G A Z I N E
by Tim Lewis of the Constitutional Freedom Foundation
The
Federalist Papers
When the Constitution was finalized and sent to the national
congress and the states for adoption, some states were thought
to be linchpin states. In other words, if any of them rejected
it, the worry was that it would cause a stampede away from
adoption. One of those states was New York.
The influential Governor of New York was publicly opposed to
adoption.[i] Alexander Hamilton, one of the New York delegates
to the Constitutional Convention, took it upon himself to try to
sway public opinion in New York in favor of adoption. He started
submitting articles to the New York papers under the pen name of
"Publius." This series of articles analyzed the language of the
Constitution and indicated what it would do and not do.
Hamilton did not write all of the articles. John Jay wrote five
of them, James Madison about thirty, and Hamilton about
fifty.[ii]
Nobody knew who the authors were initially but the articles
generated much debate in New York and in the various other
states where the articles were reprinted. They were eventually
compiled as a set and called "The Federalist Papers" or
sometimes simply referred to as “The Federalist.” The group of
people who were in favor of adoption were called "Federalists"
while those who were against passage were called
"Anti-Federalists."
Concerning the perceived stature of the Federalist Papers,
consider the following comments about them: “The best commentary
on the principles of government which has ever been
written.”[iii]
Thomas Jefferson
“The Federalist...is a complete commentary on our Constitution,
and is appealed by all parties in the question to which that
instrument has given birth. Its intrinsic value entitles it to
its highest rank, and the part two of its authors performed in
framing the Constitution put it very much in their power to
explain the views with which it was framed.”[iv] Chief Justice
John Marshall speaking for a unanimous U. S. Supreme Court.
“The Federalist may fairly enough be regarded as the most
authentic exposition of the text of the federal Constitution, as
understood by the body which prepared and the Authority which
accepted
it.”[v] James Madison
The Principal Theme Of Those Papers:
Limited Federal Authority
The Anti-federalists worried that the Constitution would create
too strong of a central government and destroy state
sovereignty. In order to refute their arguments, the prime theme
of the Federalist Papers was the notion of limited delegated
authority to the federal government. The Federalist Papers were,
in effect, the intellectual sales pitch behind adoption and were
quoted widely by the Supreme Court during our first 150 years of
nationhood. Such quoting, however, became much rarer from the
New Deal period onwards as the Supreme Court veered sharply away
from core precepts expounded in the Federalist.
Separation of Powers & Checks and Balances
Although it wasn’t until many years later that Lord Acton coined
his oft-quoted phrase “Power tends to corrupt and absolute power
corrupts absolutely,”[vi] the framers of our Constitution
believed the same thing and were very deliberate to avoid such
problems in our country. More than any government before, they
took great pains to diffuse political power as much as possible
in order to avoid despotism and tyranny.
When we hear the terms “separation of powers” and “checks and
balances,” most Americans today only think of the three branches
of government at the federal level, namely, the executive,
legislative, and judicial branches. While such a
conceptualization is true, it is incomplete, because it
refers only to the horizontal aspect of those terms (that is,
checks and balances & separation of powers within only one level
of government). These terms, however, also have a vertical
aspect known as “federalism” or the distribution of various
governing powers between the federal and state governments.
“Federalism” refers to a system in which the powers of
government are shared between a central or national government
(often referred to in our country as the “federal” government)
and smaller constituent units (in our system, the “states”).
The quotations which follow indicate how some of the principal
figures of the founding generation viewed the topic of
federalism.
Thomas Jefferson:
“Our country is too large to have all its affairs directed
by a single government....The true theory of our Constitution is
surely the wisest and best, that the States are independent as
to everything within themselves, and united as to everything
respecting foreign nations. Let the General Government be
reduced to foreign concerns only...and our General Government
may be reduced to a very simple organization, and a very
inexpensive one; a few plain duties to be performed
by a few servants.”[vii]
“...[T]he way to have good and safe government, is not to trust
it all to one, but to divide it among the many, distributing to
every one exactly the functions he is competent to. Let the
national government be entrusted with the defense of the nation,
and its foreign and federal relations; the
State governments with the civil rights, laws, police, and
administration of what concerns the State generally; the
counties with the local concerns of the counties, and each ward
direct the interests
within itself. It is by dividing and subdividing these republics
from the great national one down through all its subordinations,
until it ends in the administration of every man’s farm by
himself;
by placing under every one what his own eye may superintend,
that all will be done for the best. What has destroyed liberty
and the rights of man in every government which has ever existed
under the sun? The generalizing and concentrating all cares and
powers into one body....”[viii]
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."[ix]
In Federalist #39 Madison said that the federal
government’s “jurisdiction extends to certain enumerated objects
only, and leaves to the several states a residuary and
inviolable sovereignty over all other objects.”[x]
The Taxing & Spending Power Under The
General Welfare Clause
Article 1, Section 8 of the Constitution delineates the powers
delegated to the national Congress. The entire section is but
one long sentence. Contained within it are both the “general
welfare”
and the “necessary and proper” clauses. In Federalist #41
Madison said that the opponents of the constitution
“fiercely attacked” the open-endedness of the power to tax and
spend for the general
welfare of the U.S. They argued this amounted to an unlimited
delegation of power. Madison said that they were
misconstruing that section. He explained:
“...shall the more doubtful and indefinite terms [i.e. the terms
“general welfare” and “necessary and proper”] be retained in
their full extent, and the clear and precise expressions [i.e.
the specific
Art.1, Section 8 delineations of power] be denied any
significance whatsoever? For what purpose could the enumeration
of particular powers be inserted if these and all others were
meant to
be included in the preceding general power? Nothing is more
natural nor common than first to use a general phrase, and then
to explain and qualify it by a recital of particulars. But the
idea of
an enumeration of particulars which neither explain nor qualify
the general meaning, and can have no other effect than to
confound and mislead, is an absurdity...”[xi]
He further said that if the specific delegations of authority do
not limit the import of the prior general phrase regarding the
“general welfare,” then it gives congress the “power to
legislate in all cases whatsoever.”[xii] Any student of the
history of those times would conclude that such a
proposition would never have had any chance of passage if put to
a specific vote. Madison’s logic is quite sound here.
Jefferson agreed:
“...Congress had not unlimited powers to provide for the general
welfare, but were restrained to those specifically enumerated;
and that, as it was never meant they should provide for that
welfare but by the exercise of the enumerated powers, so it
could not have been meant they
should raise money for purposes which the enumeration did not
place under their action; consequently, that the specification
of powers is a limitation of the purposes for which they may
raise money.”[xiii]
“To consider the [general welfare clause]...as giving a
distinct and independent power to do any act they [Congress]
please, which might be for the good of the Union, would ender
all the preceding and subsequent enumerations of power
completely useless. It would reduce the whole instrument to a
single phrase, that of instituting a Congress with power to do
whatever would be for the good of the United States; and as they
would be the sole judges of the good or evil, it would be also a
power to do whatever evil they please. It is an established rule
of construction where a phrase will bear either of two meanings,
to give it that which will allow some meaning to the other parts
of the instrument, and not that which would render all the
others useless. Certainly no such universal power was meant to
be given them. It was intended to lace them up strictly within
the enumerated
powers....”[xiv]
Commenting on the same “general welfare” term in ancient Roman
law, Cicero observed:
"Though liberty is established by law, we must be vigilant,
for liberty to enslave us is always present under that very
liberty. Our Constitution speaks of the 'general welfare of the
people.' Under that phrase all sorts of excesses can be employed
by lusting tyrants to make us
bondsmen."[xv]
But contrary to all of the foregoing, the Supreme Court in
modern times has said that the taxing and spending power is not
limited to the specific powers delegated to Congress under
Article 1, Section 8 of the Constitution.[xvi] Basically, today
nobody even tries to call into question the federal government’s
taxing and spending powers. Through “strings money” it can buy
virtually any state action it desires. When the states stand in
front of the federal government with their hands out-stretched
and palms up, we can see a collective application of
Hamilton’s observation that:
“In the general course of human nature, a power over a man’s
[state’s] subsistence amounts
to a power over his [its peoples’] will.”[xvii]
Whatever Happened To The 10th
Amendment?
When he later drafted the Bill of Rights, Madison felt
inclined to drive home the idea of limited federal authority in
the language of the 10th Amendment which reads:
"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."
Because it is part of the Constitution itself, this is the
clearest and most authoritative declaration of
federalism and the limited delegated powers concept.
Appropriately, it is found in the section whose purpose is to
protect individuals from the federal government, namely, the
Bill of Rights.
But as we will see later, the10th Amendment has virtually been
read out of the Constitution by the Supreme Court.
Jefferson observed:
"I consider the foundation of the Constitution as laid on this
ground: That 'all powers not delegated to the United States, by
the Constitution, nor prohibited by it to the States, are
reserved to the States or to the people' (10th Amendment). To
take a single step beyond the boundaries
thus specifically drawn around the powers of Congress, is to
take possession of a boundless
field of power, no longer susceptible to any definition."[xviii]
Can anyone seriously deny that his prediction has come true?
Hamilton’s Views Were Different Than Some Might Think Today
Even Alexander Hamilton, who is credited with expansive visions
of federal powers spoke in terms of strict limitation in
describing the federal powers. In Federalist #29 he pointed out
that the
“necessary and proper” clause allows the federal government to
execute its declared powers. But to avoid the implication that
that clause allows the federal government to do anything it
pleases, he
made a case for being reasonable in interpreting the powers
delegated to Congress.[xix] If Congress operated outside of its
declared powers, the “necessary and proper” clause would not
stand alone in validating the federal powers thus assumed.
Said Hamilton:
“...the laws of Congress are restricted to a certain sphere,
and when they depart from this sphere, they are no longer
supreme or binding. In the same manner the states have certain
independent
powers, in which their laws are supreme; for example, in making
and executing laws concerning the punishment of certain crimes,
such as murder, theft, etc., the states cannot be
controlled.”[xx]
Hamilton also wrote Federalist #78 which takes a very limited
view of the role of the federal judiciary. This will be
discussed in more detail in the next article.
In Federalist #33 Hamilton clarifies that the “necessary and
proper” clause was designed to effect the execution of the laws
properly passed on the basis of the enumerated powers delegated
to
the federal government. Thus, he said the phrase was “perfectly
harmless.”[xxi] He said that laws passed pursuant to these
delegated powers become the supreme law of the land but that
those that were not passed pursuant to those delegated powers
would not become the supreme law of the land.[xxii]
In Federalist #32, he said:
“the State governments would clearly retain all the rights of
sovereignty which they before had, and which were not, by [the
Constitution], exclusively delegated to the United
States.”[xxiii]
“all authorities of which the states are not explicitly divested
in favor of the union, remain with them in full vigor.”[xxiv]
“[A]n attempt on the part of the national government to
abridge them [the states] in the exercise of [their power to
tax, and by implication, all of their other retained sovereign
powers], would be a
violent assumption of power, unwarranted by any article or
clause of [the] Constitution.”[xxv]
Today we have justified social welfare payments that now exceed
our spending on national defense. This is the exact reverse of
what Hamilton envisioned. He said the costs of non-military
expenses of government “are insignificant in comparison with
those which relate to national defense.”[xxvi] (emphasis mine)
So even though the “Hamiltonian View” is often presented as the
basis for arguing in favor of expansive federal powers, the
foregoing quotations should give one pause to consider what he
really believed.
Chief Justice John Marshall’s View
Chief Justice John Marshall was easily the most prolific writer
of opinions in the early years of the Supreme Court. In
asserting the Supreme Court’s power to nullify a legislative act
as being unconstitutional he observed on behalf of a unanimous
Supreme Court:
“To what purpose are powers limited, and to what purpose is that
limitation committed
to writing, if those limits may, at any time, be passed by those
intended to be restrained?...The Constitution is either a
superior paramount law, unchangeable by ordinary attempt, on the
part of the people, to limit a power in its own nature
illimitable....the framers of the constitution contemplated that
instrument as a rule for the government of the court, as well as
the legislature.”[xxvii]
Unfortunately, the Supreme Court’s “interpretations” of our
Constitution over the passing decades have effectively turned it
into merely an absurd attempt, on the part of the people, to
limit federal power which, as we have seen, appears to be “in
its own nature illimitable.”
What Should Be Handled At The Federal
Level And What At The State Level?
This issue has to be considered in both the positive and
negative contexts. Following the mandate of the 10th Amendment,
first we ask ourselves what positive powers were delegated to
the federal government. Then we ask if the Constitution
prohibits a particular power at either the federal or state
level -- or both. Finally, whatever has not been specifically
delegated to the national Congress nor prohibited to the states,
is reserved to the states as the ultimate default rule.
Let us consider the positive delegations of power to the federal
government. Generally speaking, those things which require that
we speak and/or act with one unified national voice are prime
candidates for federal control. Among others, things that fit
into declarations of war; making
treaties with other countries; the coinage of money; regulating
commerce between the states, Indian tribes and with foreign
countries (remember the interstate commerce problems discussed
in
the last article); setting weights and measures; creating and
protecting patents and copyrights; etc. These are all found
among the specific positive powers delegated to Congress under
Article 1,
Section 8.
Then everything falling outside the list of the Article 1,
Section 8 is positively reserved to the
states for their respective determinations unless it is negated
by a specific prohibition somewhere within the constitutional
text.
Article 1, Section 9 lists specific prohibitions against the
federal government and Article 1, Section 10 lists specific
prohibitions against the state governments.
For example, consider “bills of attainder” (legislative, as
opposed to judicial, pronouncements of criminal guilt) and “ex
post facto laws” (laws making something that was legal when
done,
illegal retroactively). Both the federal government and the
states are prohibited from passing such laws. Absent a
constitutional amendment taking away such prohibitions, no level
of government can constitutionally pass such laws no matter how
high the democratic majorities are who want them. They have been
taken out of the normal democratic realm.
Why would anything be specifically prohibited like that? As one
scans the lists of prohibitions including the two explained in
the prior paragraph, at least two separate ideas come to mind.
Either, (1) the fundamental wrongness or injustice of something
or (2) the propensity for some type of significant societal harm
associated with a particular governmental act, was sufficiently
perceived by a super-majority of the people as to justify
creating a constitutional prohibition
against it which would be immune to reversal by simple majority
vote at either the federal or state level. Successful reversals
could only properly come about through the formal
super-majoritarian,
nationwide, amendment process set forth in the Constitution.
So, for example, if a super-majority of Congress and the state
legislatures across the nation perceived a fundamental wrongness
and/or significant societal harm associated with gaymarriages,
passing a constitutional amendment restricting marriage to one
man and one woman, would not violate either the spirit or the
letter of the notion of federalism. We would simply be adding
something to the lists of prohibitions contained in Article 1,
Sections 9 & 10. Federalism is simply the sharing of powers
and/or prohibitions between the federal and state governments.
And how that sharing ultimately shakes out, is only properly
determined democratically through super-majority vote either
through the original adoption of the Constitution itself or the
formal amendment process.
What would violate the notion of federalism, however, would be
for the courts to make undemocratic changes in the sharing
arrangement regarding powers and prohibitions rather
than the people themselves. Unfortunately this the courts have
done with reckless abandon. And it is from an apprehension that
they are about to put on a repeat performance in forcing the
acceptance of gay marriage upon the states, that a
constitutional amendment is being proposed to head them off at
the pass.
Why Are Some So Condescending Towards
The Idea Of States’ Rights Under Federalism?
Why are some so condescending towards the idea of states’ rights
under federalism? First off, their tune would quickly change if
the Supreme Court started ruling against their minority
political
positions rather than imposing them from the bench onto the
majority of the people. Were
that the case they would quickly become converts and start
clamoring very loudly that in some state, somewhere, their
minority political views could bear sway. But so long as the
Supreme Court has been willing to impose those political views
onto the whole nation through judicial
activism, those on the winning side have heaped nothing but
scorn and contempt upon the
idea of states’ rights.
Imagine what would happen if the Supreme Court were to give
every fetus a “constitutional
right” to life making it impossible for any woman to ever have
an abortion unless her life were seriously at stake. Were the
shoe on the other foot and the pro-life/anti-abortion camp
getting the court to undemocratically impose its political will
on everybody (like the pro-choice/pro-abortion camp has),
certainly the pro-abortion camp would be making all of the same
philosophical arguments made in this article to argue against
such a state of affairs – and they would be
correct to do so. But apparently they are willing to “look the
other way” and ignore the violations of basic constitutional
principles so long as they continue to get their way through
such
violations – justifying things under some sort of utilitarian
“the ends justify the means”
rationale. But as discussed above, the courts should not be any
sort of public policy makers favoring one side or the other –
the battles over public policy should play out in democratic,
rather than judicial venues.
Second, the argument is made that we cannot trust the states to
make the correct calls – after all, didn’t some states allow
slavery? Yes, but that sounds like the argument “once wrong,
always
wrong,” which is never logically true. The past does not always
equal the future.
If people in the states were so profoundly and perpetually
stupid, how come they were smart enough to send delegates to the
Constitutional Convention and vote for the adoption of the
Constitution in the first place creating the federal government?
If they were so incompetent, how
could they have had enough foresight to demand as a condition of
their adoption, that the Constitution itself be amended soon
thereafter in order to add the Bill of Rights? Remember from the
article how Hamilton and the majority of the delegates to the
Constitutional Convention thought that was a bad idea? So the
people in the states were smarter than even the drafters on this
issue.
In arguing for the necessity of a Bill of Rights in the proposed
federal Constitution, a New York Anti-Federalist writing under
the pen name of Brutus observed that the same selfish human
tendency of man to victimize and abuse his fellow man in a state
of nature would likewise motivate
him to take advantage of those over whom he is set to govern in
a political capacity within
organized societies. Thus he argued that the federal
Constitution should include express limitations and protections
against such potential abuse and follow the prior lead of the
states in their own constitutions. Said he:
“...in all the constitutions of our own states; there is not one
of them but what is either founded on a declaration or bill of
rights, or has certain express reservation of rights interwoven
in the body of
them.”[xxviii]
Consider too the issue of free speech. Were there no protections
of speech in the states before or after the adoption of the Bill
of Rights? Certainly not. At least ten of the first fourteen
states to adopt the federal Constitution, had laws guarantying
freedom of expression.[xxix] Obviously,
they themselves had already thought about the idea and wanted to
make sure that similar limitations applied to the federal
government. So they were pretty smart after all.
Besides, if a few mistakes like slavery should be enough to
strip the states of all decision-making and rule-making
authority in perpetuity, what should be done when we find the
federal government committing its own fair share of mistakes?
Should we strip it of all such authority too? The result would
be utter chaos.
Since humans are involved in the process, no political
arrangement can truthfully promise infallibility. All we can
hope to do is come up with an arrangement which optimizes our
chances for success and provides the easiest methods of
correction when errors are discovered. Where are we to find such
a system? – our original constitutional framework, namely,
federalism with a healthy dose of states’ rights.
What Dangers Do We Face When The Federal Courts Thwart Democracy
and Create Constitutional Rights Regarding Divisive Political
Issues?
Basically, when the Supreme Court creates a new constitutional
right, it takes the matter out of the
democratic realm. It thwarts the normal democratic process of
the people deciding for themselves from the bottom-up which
liberties to give up and which to retain.
In Lawrence v. Texas, the case that invalidated Texas’
anti-sodomy statute, the Supreme Court majority gave the
following justifications for its actions:
“Had those who drew and ratified the Due Process Clauses of the
Fifth Amendment or theFourteenth Amendment known the components
of liberty in its manifold possibilities, they might have been
more specific. They did not presume to have this insight. They
knew times can
blind us to certain truths and later generations can see that
laws once thought necessary and proper in fact serve only to
oppress. As the Constitution endures, persons in every
generation can invoke its principles in their own search for
greater freedom.”[xxx]
“In all events we think that our laws and traditions in the past
half century are of most relevance here. These references show
an emerging awareness that liberty gives substantial protection
to
adult persons in deciding how to conduct their private lives in
matters pertaining to sex. ‘History and tradition are the
starting point but not in all cases the ending point of the
substantive due process inquiry.’”[xxxi]
In other words, in their opinion the greatest political minds of
our founding generation, and perhaps any generation, were
deficient when it came to an understanding of the proper
limits and extents of liberty, and it is up to a majority of the
nine members of the current Supreme Court to correct their folly
in a permanent fashion by conjuring up a new constitutional
right
with no resort whatsoever to the will of the people as a whole.
Since the Court said that the “Texas statute furthers no
legitimate state interest”[xxxii] and serves
“only to oppress,” they, in effect, concluded there is no
fundamental moral law involved regarding homosexual conduct and
that no negative social impacts can possibly occur because of
it. And they were so confident in their suppositions as to feel
justified in second-guessing everybody past, present, and future
in such a way as to make it virtually impossible for future
generations to ever
second-guess them on those judgments.
After all, when one generation expresses its public policy
preferences legislatively, it is relatively easy for future
generations to democratically change those preferences by
subsequent legislation, but not so when the Supreme Court
expresses its own personal policy preferences in monolithic
fashion through self-created “constitutional rights.” Such
“rights” can only be reversed by a
constitutional amendment (which is virtually impossible to
achieve) or by the Supreme Court reversing its own prior
judgment on the matter, which also is highly improbable. Thus,
ordinary democracy is trumped, thwarted, and eliminated in the
process.
Would somebody please point sets up a government ruled by
judicial oracles? Again, except regarding those express
prohibitions against the states set forth in the Constitution
(the issue at
hand not being one of them), the right to determine the
appropriate tradeoffs between liberty and law rests with the
people in their respective states and not with the U.S. Supreme
Court. While a
majority of only nine individuals on the Supreme Court may
conclude that unlimited liberty is the only way to go -- like
they did in Lawrence -- most Americans probably would not, but
apparently their democratic judgment doesn’t matter any more
since a majority of these nine unelected people say that their
wills should permanently reign supreme on this matter.
That is usurpation, plain and simple.
According to the logic of the framers and the political
structure they erected, whether one personally agrees or
disagrees with the idea of a state law outlawing sodomy (or
abortion, pornography, strip joints, etc.), Texans have the
ultimate self-regulatory right under the 10th Amendment to
decide these matters for themselves. It shouldn’t matter whether
people outside of Texas agree or disagree with their decisions.
Were a majority of Texans to believe that any of
their laws were unjustified and “served only to oppress,” they
would certainly be free to repeal them through the normal
democratic process within their own state. But to have the U.S.
Supreme Court do it for them -- and everybody else in the
country – is constitutionally unjustifiable – at least, if the
written Constitution really means anything other than bald
judicial whim.
When legal/political error is created democratically, the losing
side in the debate can afford to be magnanimous and play the
role of “gracious losers” since they know the democratic
political winds can change quite quickly and dramatically in
their favor at any moment – especially if their arguments are
sound. Their angers and frustrations are more easily manageable
in that context than in one where the Supreme Court declares
their side to be permanent losers in the contest by the creation
of a virtually untouchable “constitutional right.” Being on the
losing end of that political battle tends to produce a deeper
level of anger, frustration and resentment that can even change
what once were gracious losers into revolutionaries. Again, this
is why, within the bounds set forth in the Constitution,
the people themselves, and not judges, should be the ones who
determine the appropriate balance between liberty
and law at any particular point in time and at any
particular place.
Federalism Allows For Many Different
Experiments
Contrary to what the Modern Supreme Court has been doing as
discussed above, our founders originally decided to solve
Washington’s dilemma about which liberties to give up and which
to retain by specifically delegating limited decision-making
authority to the federal government and reserving all other
authority to the people of the various states. This makes sense
since reasonable
people can disagree about the appropriateness of making
trade-offs between competing societal goals; they have different
value systems; they assess the relative importance of things
differently; they assess inter-connective cause-and-effect
relationships differently regarding things
that have happened in the past; they foresee the future
consequences of things differently; and they differ as to
whether only direct and immediate consequences should be
considered in deciding what the law should be versus indirect
and delayed consequences, etc.
By allowing the states to democratically decide most matters for
themselves, we allow many different experiments throughout the
country, the results of which an be compared to see what
works best. Through this comparative process, public policy
blunders can be caught and corrected relatively easily. By
contrast, at the federal level such blunders would be harder to
detect and
correct. For one thing, when a one-size-fits-all approach is
mandated from above, little contradictory evidence can be
amassed to show the imprudence of that approach since no
competing experiments are allowed to take place. And massive
institutional inertia at the national level is always very hard
to change compared to the smaller inertial masses at the state
level.
Tyrannical government at the state or local level is far easier
to cope with than tyranny at the federal level. If corrective
efforts fail, it is easy to flee a local tyranny but not a
federal one.
In the former case, people can move around the country to
whatever legal system suits them best without having to forfeit
their treasured American citizenship. By contrast, a federal
tyranny is
much harder to cope with – if it cannot be changed, then one has
but three choices namely,
(1) endure, (2) forfeit his or her American citizenship and
emigrate, or (3) revolt. In short, our founders’ political model
of federalism was pure genius for allowing a very diverse nation
to cope with deep-seated religious, philosophic, and political
differences.
The Supreme Court has done great violence to this wonderful plan
handed down to us from our forefathers. In determining its
proper role in our Constitutional scheme, rather than merely
paying
lip-service, it should really take what it once said to heart:
“The question is not what power the federal government ought to
have, but what powers
in fact have been given by the people.”[xxxiii]
The next article will explore more deeply, the proper role of
the judiciary.
CLICK FOR PRINTABLE VERSION
Notes:
[i]. American Constitutional
History, Erik McKinley
Erikson, published by W.W.
Norton & Co, 1933, pp.235-36.
[ii]. Id. p. 223.
[iii]. The Federalist,
published by Global Affairs
Publishing Company, 1987,
quoted on the page before the
table of contents.
[iv]. Cohens v. Virginia, 19
U.S. 264 (1821).
[v]. Letter from James Madison
to Thomas Jefferson, Feb. 8,
1825; Writings 9:218-220.
vi. Letter to Bishop Mandell
Creighton, 1887.
[vii]. Letter to Gideon
Granger, August 13, 1800,
Thomas Jefferson, Works 4:331.
Reproduced
at:http://etext.virginia.edu/e
tcbin/ot2www‑singleauthor?spec
file=
/web/data/jefferson/texts/jefa
ll.o2w&act=
text&offset=6081793&textreg=2&
query=Our+country+is+too+large
[viii]. Letter from Thomas
Jefferson to Joseph C. Cabell,
Feb. 2, 1816, Works 6:543,
reproduced at
“www.constitution.org/tj/jeff1
4.txt”, p.421.
[ix]. Federalist #45,
paragraph 12.
[x]. Federalist #39, paragraph
16.
[xi]. Federalist #41,
paragraph 26.
[xii]. Federalist #41,
paragraph 27.
[xiii]. Letter to Albert
Gallatin, June 1817, Thomas
Jefferson, Works 7:70.
Reproduced at:
http://etext.lib.virginia.edu/
etcbin/foleyx‑browse?id=
General%20Welfare%20Clause
[xiv]. National Bank Opinion,
1791. Reproduced at:
http://etext.lib.virginia.edu/
etcbin/foleyx‑browse?id=
General%20Welfare%20Clause
[xv]. Cicero, quoted in A
Pillar of Iron, p. 512.
[xvi]. U.S. v. Butler, 297 U.
S.1 (1936).
[xvii]. Federalist # 79,
paragraph 1.
[xviii]. Thomas Jefferson in a
letter to George Washington,15
February, 1791, Opinion on the
National Bank, ME 3:146. It
can be found at the following
website maintained by the
University of Virginia:
http://etext.virginia.edu/etcb
in/ot2www‑jeffquot?
specfile=/web/data/jefferson/q
uotations/www/jeffquot.o2w
[xix]. Federalist #29,
paragraph 4.
xx. Alexander Hamilton,
Elliot’s Debates 2:362.
[xxi]. Federalist #33,
paragraph 4.
[xxii]. Id. paragraph 7.
[xxiii]. Federalist #32,
paragraph 2.
[xxiv]. Federalist #32,
paragraph 7.
[xxv]. Federalist #32,
paragraph 1.
[xxvi]. Federalist #34,
paragraph 6.
[xxvii]. Marbury v. Madison, 5
U.S.137 at 176-77 (1803).
[xxviii]. Brutus No. 2, Nov.
1, 1787, Storing 2.9.24-32,
republished in A History of
the American Constitution,
Daniel A. Farber & Suzanna
Sherry, West Publishing,
pp.222-23.
[xxix]. Ross V. U.S./Alberts
v. California, 354 U.S. 476,
(1957).
[xxx]. Lawrence v. Texas, 123
S. Ct. 2472 at 2484; 156 L.
Ed. 2d 508 at 526; 2003 U.S.
LEXIS 5013; 71 U.S.L.W. 4574,
June 26, 2003.
[xxxi]. Id. at 2480.
[xxxii]. Id. at 2484.
[xxxiii]. U.S. v. Butler, 297
U. S.1 (1936).
About the Author:
Professor Lewis graduated from the J. Reuben Clark School of Law
at BYU and currently teaches Business Law at
Southern Utah University.
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