An Article V Application: The States' Tenth Amendment Rights In Action
This article discusses the Tenth Amendment and presents the fact an Article V convention application is nothing more than an express of the Tenth Amendment by Bill Walker
Monday, December 21, 2009
There is a growing advocacy, primarily from the political right, based on perceived infringement by the federal government of state sovereignty of nullification of federal acts by the states. State sovereignty advocates say the federal government, through federal legislation, judicial rulings or federal bureaucracy, has usurped powers, they believe are the sole province of the states. Many of these supporters believe the states posses the inherit "right" to nullify these federal statutes, rulings or acts which they find repugnant either to state law or the state's interpretation of the Constitution by ignoring them outright or refusing to enforce them. This alleged "right" is called the doctrine of nullification or simply nullification.
In order to advocate their belief nullification or Tenth Amendment advocates ignore the specific language of the Constitution prohibiting such state power. This specific language is contained in clauses two and three of Article VI of the Constitution sometimes referred to as the supremacy clause. Clause two mandates "the Constitution and laws of the United States which shall be made in Pursuance thereof...shall be the supreme law of the land the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." Clause three requires all judges, executive officers and members of legislature, state and national, shall take an oath of support the Constitution. Thus, any action by any state official to act in contrary of the Constitution, including the supremacy clause, is clearly unconstitutional.
Naturally, nullification proponents attempt to exploit the constitutional phrase, "made in pursuance thereof" asserting the laws, acts and rulings in question are not made "in pursuance" of the Constitution. Therefore, they assert, the state has the right to nullify such laws, acts or rulings as they are not made "in pursuance" of the Constitution. The problem with this argument is the Constitution does not assign the states the authority to decide what is "made in pursuance" of the Constitution. Instead, the Constitution assigns this authority to the federal courts under of Article III ("all cases, in law and equity, arising under this Constitution...") or to the President of the United States under his Article II "preserve" power ("and will to the best of my ability, preserve ... the Constitution of the United States."). Thus, the Constitution delegates the power to decide if something is constitutional or not to branches of the federal government and denied to the states.
The Tenth Amendment which mandates "powers not delegates to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people" reinforces this interpretation. As specific language elsewhere in the Constitution delegates the power to determine whether something done by the federal government is made "in pursuance" of the Constitution, the Tenth Amendment serves further to stop state nullification of federal acts. In answer, Tenth Amendment and nullification advocates simply ignore the language of the Tenth Amendment, which they say they support, but in fact, only support so long as it suits their political purposes. Why? Because all the Tenth Amendment does for their political position is reinforce the fact nullification is unconstitutional.
State nullification of federal actions dates back to 1832 when federally imposed tariffs on the states triggered the nullification debate. History credits this doctrine to being a contributing factor causing the Civil War. However, in 1832, the states responded differently than today. Instead of wasting time advocating the Tenth Amendment and sending useless, easily ignored memorials to Congress, (which is Congress is now doing to these memorials) the states turned to their most powerful state power granted them in the Constitution: an Article V Convention. Applications of those days (South Carolina Application, page 1 and South Carolina application, page 2) clearly show the states felt a convention was the place to discuss whether or not the states had the right to nullify federal actions and assuming assent by a convention and ratification by the states a means whereby nullification became a state power. By obvious implication, the states requesting an Article V Convention clearly indicates they realized language for the power they asserted to exist required constitutional amendment. As nothing has changed in the Constitution regarding this fact since 1832, it is obvious for nullification to be a valid constitutional power it still requires an amendment to create it.
Of course, in 1832, there were not enough applications for an Article V Convention by the states. Today there are 750 applications from all 50 states. These applications have never been discharged by Congress obeying the Constitution and calling an Article V Convention and therefore remain as valid as they day they were submitted by the states. Therefore, just as with all other applications, a nullification amendment remains on the agenda for convention consideration. In short, the Constitution provides a solution to resolve the issue of nullification but it lies not within the Tenth Amendment but Article V.
Nullification proponents today however, do not bother advocating an amendment to the Constitution to permit nullification. Actually achieving a solution for their issue is, most likely, beyond their political conception. Indeed, most nullification advocates oppose obeying the Constitution and calling a convention when the Constitution demands it. Thus, they demand the constitutional obedience but only to those parts, they politically support. They are, in fact, constitutional hypocrites. Is it any wonder with such brilliant logic of urging something be simultaneously be obeyed and vetoed that these advocates are not taken seriously? After all, to defeat them intellectually requires only they be permitted to publicly speak their political position. The illogic of urging veto and obedience of the same thing defeats them.
What is missed by these Tenth Amendment advocates is an Article V Convention application is a power of the Tenth Amendment. The power to compel Congress to call a convention belongs expressly, solely and uniquely to the states and nothing else. To oppose the states submitting applications by use of this power is to support Congress's so-called "right" to ignore them. In the ultimate analysis, opposing this issue is to oppose the very issue, the Tenth Amendment, they say they support. By denying the powers assigned the states in the Constitution, these advocates actually weaken not only these powers but the Tenth Amendment as well by permitting the government the right to interfere with those powers actually assigned to the states and not assigned to the federal government. Thus, the principle of federal government interference is established by those who say they oppose such interference but whose actions serve to advance that interference.
One cannot open the door to tyranny and not expect a tyrant to enter. By advocating scraping the Constitution by permitting the government to ignore Article V, all that is achieved by Tenth Amendment advocates is destruction of their own advocacy. Once they have conceded government can veto the Constitution, it is up to the government alone to decide which parts of the Constitution it will choose to destroy. Is it any surprise a tyranny, having first taken away the power that can stop its actions by refusing to call a convention would then move against the only group (the states) strong enough to contain it by the obvious expedient of constitutional annexation of that group's powers?
The Constitution provides many means whereby the terms of the Tenth Amendment are enforced and without doubt, an Article V convention call application is the most powerful and effective means designed within the Constitution to effect the terms of the Tenth Amendment. Through this power, the states can hold the federal government accountable, which by all reports, is the objective of the Tenth Amendment movement. Clearly, the movement believes the states can be trusted more than the federal government to steer this country in the proper direction.
However, when it comes to the states using their most powerful tool to accomplish this task of setting direction for this nation, the Tenth Amendment movement opposition to an Article V Convention proves they really do not trust the states either. Remember we are discussing a STATE convention to propose amendments, which these advocates believe if called, will overthrow our Constitution, take away all our rights and impose a new Constitution by fiat. So much for believe Tenth Amendment advocates really support state sovereign rights. How else can it be explained why a movement demands action by the states but opposes the states taking real action? The Tenth Amendment may express the right of the states and their sovereignty but it is in an Article V Convention that the power to enforce that right exists. Before the Tenth Amendment movement demands the government obey the Constitution, it first needs to decide if it truly is serious about accomplishing the goals of achieving a balance between the states and federal government. Perhaps, in fact, all this movement wishes to do is waste Internet bandwidth supporting useless state resolutions, which neither have force of law nor are even binding on the state, which proposed them, or on the federal government to which they are aimed.
Perhaps, as some in the movement have expressed, amendments will not accomplish anything and therefore a convention will not work. The government will simply ignore any amendments made a convention. Yet these people believe the use of an amendment, the Tenth Amendment, is the answer to confronting the government. Again, these Tenth Amendment advocates present a conflict in logic; if the government can ignore amendments because they have no authority over the government, then it follows any effort to use an amendment to effect change on the government must automatically fail. Thus, any attempt to use the Tenth Amendment to accomplish change will fail. However, they hold the Tenth Amendment cannot fail because it has the power to compel obedience by the government, which they concede can ignore amendments. To break this constitutional Gordian knot the Tenth Amendment movement will have to decide the Constitution (and its amendments) do have the power to control the government or they do not. It cannot be both ways. This in turn means they will either have to support all the Constitution, including an Article V Convention, or none of it.
If these advocates have any question as to the power of Article V and the effect on the government they should remind themselves of one pertinent fact. Article V created the Tenth Amendment. The Tenth Amendment, whose advocates believe has the power to change the course of the government through non-binding resolutions by the states, would not exist were it not from Article V. Thus, any power of the Tenth Amendment derives from Article V. If these advocates believe their amendment is so powerful then they have no choice but to admit the method by which created it is even more powerful and effective. As these non-binding resolutions obviously have no effect, the Tenth Amendment should take a logical position for once and support an Article V Convention call rather than wasting any more time with useless, illogical positions and meaningless, non-binding resolutions. That is, assuming they actually want to accomplish something rather than just waste Internet bandwidth complaining about it.
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I find your analysis of the Supremacy Clause to be less than convincing. You are right that all laws made "in pursuance of" the Constitution must be the supreme law of the land, but you have chosen to read judicial review into Article III, when in fact it was an invention of John Marshall.
Article III lays out judicial power, but nowhere does it give federal courts the final say in disputes between individual states and the federal government--only between one state and another or between these United States and a foreign power.
The very idea that the framers would have created a central government with sole discretion to determine the extent of its own power defies logic.
As Thomas Jefferson himself stated very clearly in the Kentucky Resolutions (which, by the way, long predated the Nullification Crisis):
"[T]he 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 powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
With all respect to Mr. Jefferson, the fact is he was not a delegate to the 1787 convention and wasn't even in the country, to the best of my knowledge. Hence, any opinion he presents is after the fact. I would be more impressed if, for example, you would have quoted George Mason, a delegate there. Thus, while Mr. Jefferson may have opinion, the fact is he was not there to actually know the mind of the convention.
It is historic fact that judical review (and I would concede that an amendment is required to allow it to exist) was discussed even before the Constitution existed. Various judicial sources discussed the apparent conflict between the law passed by a legislature and a conflict with a ruling document and nearly all came to the conclusion judges must have the power to overturn said laws where such conflict existed. But this concept is a far cry from what we have now. However a full discussion is far beyond the scope this reply so I will leave it at this. John Marshall did not create the concept of judicial review; he, along with a uniamous court, simply stated it in light of the Constitution.
You misquoted Article III and, as I indicated ignored its language which I have found previlant among Tenth Amendment advoates. Your movement will not be taken seriously if your are inaccurate in your facts or citations. Article III also says the judicial power shall extend "to controversies to which the United States shall be a party" meaning of course that disputes between a single state and the United States are reviewable and thus subject to a final decision by a federal court.
While I may agree the logic doesn't make sense, nevertheless, the text of the Constitution does specifically grant review to the federal courts. Beyond which, you failed to dispute the second mention of power, that of the president under his preserve power.
Obviously you have not studied the history of nullification. Andrew Jackson threated to use federal troops and "hang" people in South Carolina (where nullification was most strongly advocated) in order to stop the practice. Fortunately, the states backed down. The simple fact is the states do not have the constitutional authority to nullify federal laws.
However all is not lost to those who advocate this issue and maintain the supreme court should not have final states. The states actually agree with you. If you check the applications on FOAVC and read the 750 applications, you'll find, as I mentioned, that an amendment proposal to allow nullification does exist and has existed since 1832. Beyond this, there are at least three different amendment proposals by the states to allow state review of supreme court decisions that have been submitted.
Of course, Congress blocks all this by simply vetoing the Constitution which, as I stated, is supported by many in the Tenth Amendment movement. Now, with amendments in place, the issue of nullification and review of supreme court rulings DOES become constitutional where it is not now.
So, as I said, the movement is going to have to decide: do you really want a solution or are you just venting your anger?
My point is not that Thomas Jefferson was a delegate to the constitutional convention (he was in Paris), but rather, as the author of one of our most important founding documents, and the third president of the United States, he is far more qualified than yourself to give an opinion on both the intent and legal implications of our Constitution.
Regarding the convention itself, you are probably well aware that James Madison proposed doing explicitly what you say the document does implicitly; that is, give the federal government power to veto state laws. However, that idea was defeated, and with good reason.
The truth is that nullification is possible right now. We did it with REAL ID in 2005, 13 states have done it in one form or another with medical marijuana, and we can also do it with health care.
I had to put my waders on to get through this one.
The republican form of government acknowledges that the sovereign power is founded in the people, individually, not in the collective or whole body of free citizens, as in a democratic form. Thus no majority can deprive a minority of their sovereign rights and powers.
The Federal Government was created by the states and is an agent for the state. The state is an agent of the people. Our republic is governed from the bottom up. Our rights and liberties come from our creator and not from the government
You are saying that the state is forbidden by the constitution to nullify unconstitutional acts. That is where the nonsense lies. The operative words are "unconstitutional acts"
Now let's hold the phone Josh. Nice try at a slick move. Nullification is the state nullifying federal laws. That is what my article addresses. All of a sudden you throw in the reverse, the federal government nullifying state laws. That is a different subject entirely and everybody knows that can't be done and has been since McCulloch v Maryland, 17 U.S. 316 (1819). So let's stick with what my article does address--nullification of federal legislation. The fact is, the states do have the power of nullification just not the way today's advocates want--the power of amendment. The problem is of course to do things legally is not acceptable to those who hold things need to be now.
As to your examples, if you look more closely you'll see the federal laws in your examples allowed for state actions that you cite. Under those circumstances there was no nullification, just the state acting under the direction of the federal to employ a choice that law gave it in those circumstances.
Now as to health care, I think the states will be in a long line in federal court that will drag on for a long time so don't include that one in my above comments because it hasn't happened yet.
As to Mr. Rankin.
I'm sorry but the federal government was created by a sovereign grant of the people acting through the states, a major difference. Sovereignity in this nation resides with the people who have created both the states and the federal government as units to exercize that power. In doing so, the people have given up some of their sovereignty to the states or to the federal government. It can, if the people, choose be withdrawn by the people using methods they have laid out in the Constitution. The people did not lay out in the Constitution the right of the states to nullify the federal government. Maybe they should have which explains why states have asked for amendments to do so. But as I said the fact that South Carolina in 1832, the leader of the nullification movement, realized an amendment was required in order for the states to have such power clearly indicates the states realized it didn't have it legally then or now.
I am saying exactly the states do not have the power to nullify unconstitutional acts because each state would then be in the position of determining what is constitutional and what is not. The result would be utter chaos with one state saying a law is constitutional and the next saying it is not. For that reason the states gave up the right to determine what was constitutional to a federal system. It was tried in the Articles of Confederation and it didn't work at all. That task therefore is assigned to the president and the federal courts and to the states if they propose and ratify an amendment altering the circumstances so as to allow or give the states the power to nullify an unconstitutional act which they have not done. In short, if you want the power of nullification for the states you're going to have pass an amendment to get it.
It's just that simple and I guarantee you'll find not only federal but state courts as well that have made this statement over and over again. This is an old, worn out, disproved theory of the Constitution that was settled well over 100 years ago and has been dug up by those who haven't got what it takes to actually obey the Constitution and use it to achieve what they say they want. It didn't work in 1832. It didn't work in 1860. It failed again a couple of times and it will fail today---unless you turn from overthrowing to amending. Now that's legal and it will get you your goal. I suggest you consider using the Constitution and what it offers instead of trying to figure out ways to get around it.
"...the Constitution and laws of the United States which shall be made in Pursuance thereof...shall be the supreme law..."
Excuse me. This same supremacy clause is exactly what they are using, and correctly. The Constitution is Supreme over any Law, thus the qualifying phrase "...laws of the United States which shall be laws of the United States which shall be made in Pursuance thereof...because if those laws are not "...made in Pursuance thereof..."
That the Supreme Court ultimately has jurisdition does not mean that the states must comply with what they in good conscious, feel is a clear violation of that Constitution. If the Supreme Court hears it and then decides it does not violate the Constitution, then you are correct, they should comply or they are de facto in Revolt, which by the way, the Second Amendment Provides specifically for, if the Federal Government does become too corrupt. Or are you now going to take sides against that Amendment, too?
I don't include this lightly. I have served 32 and a half years (so far) in the military. What you need to be frightened by is that the lines are divided within the Military such that if Bush had lost to Gore's gamble to disenfranchise the Military Vote in Florida and thus Gore became the President by such dishonest means, that the seeds for Civil War were right there on the doorstep. I don't think Bush would have said the magic words that he was the "Real" Commander in Chief and on top of that find a General or Two to agree that was so. But that truely was how close we were, folks! Most of us in the Military understand this. Some differently than others. However, if a State resisted the Federal Encroachment of their rights, or especially if more than one did, do not think for a momment that we are so all indoctrinated that we would automatically violate conscience and attack them on orders from the President. There would be turmoil and those that defect on the basis of moral conviction. Others would leave out of fear, I must admit. But the US military would not be the block that Obama could weild without terrible cost even to his own adminstration and legacy. He does not command enough respect, I am certain, to pull such a thing off. He does not have moral high ground to attack the states from, even if he mistakenly thinks he is facing figuratively facing another Democratic Governor George Corley Wallace, Jr. It is not that way, at all!
The political polarization that Obama has brought to this country (yes he did!) is reflected in the Military, possibly to an even deeper level since such political issues are usually supressed and right now they are bubbling out. In fact, there has been an increase in the Military Establishment trying to paint all political expression as illegal, and that is not at all helping matters, since everyone on all sides of all the political discussions know just how wrong that is, and unite against that in almost universal spirit!
If you want an eye opener, make a FOI request to find out what percentage of retirements are asking for his signature versus another living President they served under. Not all retirees even know of this, but there are HUGE numbers that have no desire to have any piece of paper signed by him. That should set off the alarm bells for you, if you are not already convinced. If one General Pulls a Douglas MacArthur in such a crisis, it will not be something cleaned up in a short order. Even if put down, such a revolt would foment discontent for a generation or more. You may think we are not there. How many countries have you been in when they are going through political upheaval and civil war? Do you really know what it looks, tastes and feels like? Do you really want to see those dice rolling? I don't. My hope is that the states will (correctly in my mind) refuse to comply and that Obama's feeling will not be so hurt that he tries to respond with force. Put it before the Supreme Court and let them have their ruling. Even if their ruling is viewed as incorrect by some, it is likely to be honored. Go any other way and it gets ugly really quicky!
Let me put it to you another way:
If I, as a member of the Military, recieve an order that I think is Unconstitutional but otherwise comes from a lawful authority, what do you think I am supposed to do? I will tell you what I should do: As non directly as possible, I should refuse to obey such an unlawful order. Following such orders is what results in things like the My Lai Massacre. The oath I took was to defend the Constitution against all enemies, foreign and domestic. If the President Himself becomes an enemy of the Constitution, I must defend it from him, which is one reason the personal integrity of the President is not some trivial item!
Each of us must make our own choice on this. The states have the same undeniable right and responsibility. For you to say that they must simply fall in line and buck up is so wrong on so many levels. Just because you say so does not in the least constrain their actions. That is the road to totalitarianism!
Read the Federalist Papers. They did not have the internet, but the founding fathers still managed to make their thoughts pretty clearly known. It still suprises me that I find fools willing to say that if Congress passes a law, it must be good. Nyet, comrade. Nyet!
It might seem like the reverse initially, but that is exactly my point. If a state passes a law forbidding compliance with a federal mandate, the federal government can either accept that law or insist that its own law be enforced. Thereby attempting to nullify the state statute.
Which was an idea rejected by the constitutional convention.
However, the bottom line is that we are both right. There was no clear system put in place for resolving disputes over constitutionality between the federal and state governments. John Marshall adopted judicial review, and his precedent has been more or less followed ever since, but there is no language in the document itself clear enough to say one way or the other.
But if you believe that governments derive their just powers from the consent of the governed, and that the Constitution was a voluntary compact between the sovereign people of each state, acting through their elected agents, then the power of nullification (or in extreme cases, secession) was preserved by the simple fact that it was never expressly surrendered.
And though you cite failed attempts by the sovereign people of certain states to exercise this power as proof it does not exist, I say that force of arms cannot settle questions of natural law, it can only postpone them.
I don't have much time to respond in detail yet I must respond. There is merit in an Article V convention and many of us who support the states' rights, and duty, to resist unconstitutional law are not opposed to a properly structured Article V convention. In reading this I felt as if the choice you were bent on was either - or while that simply is not true.
Regarding our duty as citizens of our states and the U.S. we must appreciate the separation of power and the responsibility that holds. Despite Marshall's genius and precedent in establishing the notion of judicial review the checks on any law's constitutionality rests far deeper than your article wants people to believe (federal judiciary and executive branches alone). The states also have a role in determining the right or wrong nature of proposed federal laws. Checks and balances required in a properly operating republic mean the lowest level is responsible to resist each level of government if the government is infringing on civil liberties beyond the agreement between those governed.
For me, long being a fan of the notion of an Article V convention, it was sad to see this argument you have crafted to somehow paint Tenth Amendment nullification as wrong so the convention can be seen as right...which is my perception of your efforts here. We are not freed of our 9th or 10th Amendment duties nor do we need to call for mass constitutional amendments whenever a poorly crafted, badly implemented, unconstitutional law is attempted to be leveled upon us. Both nullification and amendments have their place in a land governed under People's Law.
Well, I've listened patiently to a lot of opinion about states' rights but no proof. Now I've provided proof. References to federal lawsuits taught in every law school in this nation. References to the Constitution recognized in these same law schools and elsewhere as the basis for my point of view. In sum, I've provided documented evidence to support my view easily checked in any public library.
I haven't even mentioned a small thing called the Civil War and its outcome. Point is I have documented evidence to back up my position and all I've seen so far from the other side is a lot of opinion.
So, it's time to end this. I issue this challenge to all you Tenth Amendment and nullification supporters. Provide me a link to one state court (note I said state court) ruling of the current era which supports your view. In other words show me one official stance on nullification where a state judge, acting in his official capacity at the time of his ruling (not some opinion piece written after he retired or quit the bench) that the state he represents and decides law for has the right to nullify federal law on the basis that the states have this right.
Now if your movement has validity you've already got such decision on a web page somewhere all you have to do is provide a simple link. Obviously, your movement should have a set of legal arguments to convince people of your position. We have at FOAVC including two federal lawsuits and a formal admission by the government of what we assert. We have the evidence of the applications. In short, we can back up with reference what we assert. I find it interesting that so far anyone who has made comments has failed to make such references.
Let's see how you people do. Provide your court cases and other references and prove what you state. No opinions. Just the facts as they say. Prove your point with official government records from any state you choose so long as it current. No fair going back to 1850 and quoting an 1850 state court. A court of today.
I'll stand by for your proof to be presented and if you can't then while you opinion may be nice to listen to, you're going to have finally realize not even the states themselves support it.
You stand tall and demand some state court proof while hanging your hat on laws schools' teachings when Constitutional law is largely taught on bad precedent rather than original intent. (I also do not buy your thoughts the War of Northern Aggression somehow repealed the 10th anymore than it ended the rights under Article V.) You make it sound like the only proof acceptable states support nullification is through their courts. You will not accept the fact many state legislatures and governors have passed bills based on their 10th Amendment duties to resist. There are no legal challenges to this legislation which in and of itself stands as proof it is a legal, viable method of redress. It also stands as proof states do support this method.
Saddest of all is your inability, due to what appears to be blind bitterness, to see the 10th Amendment and Article V are both viable means for defending against an out of control federal government. In all the years I have followed your efforts I never realized how narrow your view and understanding of our U.S. Constitution is. You will not gain approval of your efforts through the tearing down of others nor will your narrow mindedness open minds to the real potential an Article V convention can hold. Again, for me, this simply is sad.
So, let's see if I can cut to the chase as they say Gary. You can't produce a single court ruling to support your point of view. I remind you that even in the states, it is the courts that interpret the law which is what you are doing by your position. Thus, it is entirely proper and correct to demand that a court has made an interpretation which agrees with your position so that you can prove a state has officially and formally taken the position it has the right to nullify federal law.
Second, there is no "duty" to resist federal law under the 10th Amendment by the states. The amendment does provide a principle of law for the Constitution but does not, in of itself, provide a means by which the principle may be implimented by the states. That is provided elsewhere in the Constitution. Now, as to your comment about their being no legal challenges. I've looked up the stories on the Montana gun legislation (why does it always have to be guns? You'd have a much better argument if you'd picked wheat or meat or any clearly recognized Montana product that you could prove was used within the state) and if you bother to read them you'll see the plan all along is to find "20 pristine" gun shop owners who then will sell the guns so that the federal government will step in (they'll do this by not applying for the federal gun permits thus committing a criminal offense) and then the supports state THEY WILL GO TO FEDERAL COURT IN HOPES OF WINNING THEIR CASE BEFORE THE SUPREME COURT.
Now it seems to me that if your group was consistent they would go to a STATE court don't you? After all, your entire contention is that the federal government has no place so therefore why not go to a state court instead of federal court? Doesn't make any sense to me that your group would say the federal government has no say over a state action then invite them in to decide the matter by bringing the case to federal court. In short, the legal challenges you speak of haven't happened yet because those behind this movement probably haven't been able to find 20 suckers dumb enough to risk prison for 20 years in an attempt to prove a constitutional point brought by a bunch of extremists who don't even have enough guts to do the task themselves.
As to my inability, read this article again. This time with your glasses on. It states in no uncertain terms that Article V is a tool by the states and therefore the means whereby the states can make changes to actions they feel the federal goverment makes they disagree with. And, if you'd bother to actually read the applications you'd find they are quite substantial in scope from eliminating unfunded federal mandates, to eliminating mandates entirely, to repeal of federal income tax, to establishing a referndum, initiative, recall amendment, to state review of supreme court decisions.
All of this you reject because it is you and your group that holds only the Tenth Amendment can solve the problem. And I haven't seen the federal government budge an inch in your direction. If it has, please provide the link to the news story about it. Meanwhile, in your "support" of a state Article V Convention, your movement urges the applications be rescinded (which by the way they cannot be because that would constitute a veto of Article V) state that if a state convention is held by the states they will overthrow the Constitution, remove all our rights and institute a new constitution by fiat all without one shread or proof to back up anything stated.
Now you tell me, whose being narrow minded? All your movement is is a bunch of extreme right wingers who are constitutional hypocrites. You say you support the Constitution but urge it be overthrown. There is more to the Constitution than just the Tenth Amendment but your movement refuses to see beyond it saying this is the panacea. And rather than work within the Constitution and its system to use the tools provided, your movement is content to make statements, accusations and so on without any legal argument to back them. And it is your movement that will never gain traction because you only have emotion to ride on and before you ask someone to risk 20 years in a federal prison, destruction of his entire life and income, not to mention the effect on his family, you'd better have a lot more than just emotion to present before a court of law.
I'll ask again because obviously if the intent of this movement is to go to federal court, you'd better have more than what has been presented here because any judge would laugh you out of court in a second for lack of evidence and he'd be totally right. So I ask again, since it is your movement angling for a decision by the federal courts, what is your evidence? What proof do you have to prove and support your position? I can say the moon is made of swiss cheese but until I produce a piece of the moon, I haven't proved anything. Produce the cheese.
And there is nothing narrow minded in this. If the states have this right then they should be able to prove it and I don't see that and if we are going to allow the states to decide which parts of the Constitution are going to be obeyed thus basically overthrowing that document, then I as a citizen have a right to demand to know why and by what proof and evidence this is being done.
Posted By: Scott Strzelczyk
Date: 2010-02-12 14:34:02
Let's revise the 10th amendment slightly (just the words not the meaning) to illustrate its purpose. The powers not delegated under Artcile I Section 8 to the United States, nor prohibited by Article I Section 10 to the States, are reserved to the States respectively, or to the people.
Your entire article is premised upon how the 10th amendment is viewed and interpreted today. And, the only interpretation that matters is that of the original intent and meaning as understood and ratified by the parties involved; the States. Those arguing against ratification (anti-federalists) were rightly concerned with the abuse and usurpation of powers granted by the States to the federal govt. Specifically the grant of powers under Article I Sectoin 8. Moreover, the potential abuse of power by invoking the necessary and proper clause.
Several states would not have ratified the Constitution without a Bill of Rights. And, to specifically address concerns about the possible interpretation of ceded powers the 10th amendment was proposed and ratified. Your position is ignores original intent and meaning.
Now, as far as the supremacy clause goes you again must look at original intent and meaning. Let's set the stage for this... The colonies suffered under a despotic, tyrannical ruler in the British Crown. The colonies declared their independence to the world and to Britain, stating they were free and independent states. The colonies fought a war for their independence. After all that, the people that created the Constitution designed a system where states created the federal govt, and states defined what powers they would cede to the federal govt. States ratified the Constitution. And, only states can ratify amendments to the Constitution. So, there is no argument that States were sovereign initially, and only ceded limited (subset) powers to the federal govt. After all that you are suggesting that the several states collectively agreed to grant broad powers to a federal government that could therefore act in the same manner as the previous British govt behaved? They went through all that to set up a system of government that allowed the same despotic, tryannical rule? You are delusional if you believe that.
The concept of federalism is introduced by the Constitution. Not only where there checks and balances amongst the 3 federal branches, there are checks and balances between the state and federal governments. And the judiciary itself was never, anywhere in the Constitution, given supreme authority over the states. It is supreme at the federal level only. Through legislative fiat and judicial activism the federal govt has usurped powers not otherwise ceded to them by the States. While we are on state powers, there is a reason why Senators were appointed by their State legislatures. To keep check on the federal govt and have them beholden to their states. With the 17th amendment that was eliminated and now Senators are beholden to Party politics and ideology. In addition to enforcing the 10th amendment we need to repeal the 17th amendment.
As John Taylor aptly describes in "New Views on the Constitution" the framers knew there would be collisions. That is where the states believe they have the powers retained and the federal govt believe they have the powers ceded. Nowhere in the Constitution was the judiciary ever granted a negative over state law or states powers retained. And, if your argument is they were granted that power than the states ceded ALL their sovereignty and ALL their power to the federal govt, and instead we have a national govt. not a federal govt.
Furthermore, as far as I'm concerned SC rulings on non-federal issues are not enforceable upon the states. The Constitution did not include anything saying that a SC ruling on a constitutional issue or state issue in any way, shape, or form modifies the original intent and meaning. There is one, and only one way, that the Constitution can be changed; by an amendment that is ratified by 3/4ths of the States. Therefore, precedence (or for that matter legislative fiat) in cases involving state powers/issues is a form of lawlessness. And, lawlessness begets lawlessness. What stops the Congress from enacting any laws they want. Or the judiciary from ruling however they choose. Nothing. A small group of people becomes sole judge and arbitrators over our lives which is counterintuitive to the very principles on which the country was founded. The Constitution is to protect individual rights and liberties. Instead, through your assessment, it grants supreme power to the federal government and annihilates our rights and liberties.
Sorry Scott but that's not the way it works. You don't get to "revise" the words of something then say that does not effect its meaning. The Tenth Amendment, like the Constitution, says what it says and the words are what they are. Therefore you are required to debate them as they are, not as you would prefer them to be. The Tenth Amendment does not specify sections of the Constitution as you suggest, therefore your illustration is invalid on its face as it is based on a premise of your own creation rather than what actually exists.
Therefore you premise of what the original intent of the states is flawed. True, the states never intended to have the government have such power. TO THAT END THEY CREATED ARTICLE V AND THE CONVENTION METHOD TO BE USED EXCLUSIVELY BY THEM TO OFFER AMENDMENTS TO THE CONSTITUTION TO COUNTERACT THE EFFORTS BY THE FEDERAL GOVERNMENT TO EXPAND AT THE EXPENSE OF THE STATES.
All I have ever said about the Tenth Amendment is that an Article V Convention is one of the state powers contained within the Constitution that the states, as authorized by the Tenth Amendment, have available to them.
I'm sorry but you're interpretation of the Constitution is flawed. The Constitution mandates it is supreme even to state laws. See the Supremacy clause. Now, there are remedies to this, but those of the Tenth Amendment movement seem bent on pursuing a discredited method, nullification, to achieve them. The last time it was tried, it cost the lives of 600,000 Americans. Can you guarantee it won't happen again if we go the way they urge?
Instead of using Article V as the states originally intended to fix the problem, your movement seems intent on following a path history has clearly shown is far more a danger than a convention ever could be.
"I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around [the banks] will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs."
we need to tred softly when it comes to the federal government one wrong step of giving the federal government too much power and we will be living in a dictatorship.
Many thanks for your clear exposition. After scrutinizing the supremacy clause and Article III (which assigns exclusive power to interpret the US constitution to the federal judiciary), I cannot fault your argument. What baffles me is why three states, including Virginia, at the time of ratification explicitly claimed the right to resume the governmental powers granted to the US. Why did they sign off on the two clauses which made their claim a dead letter? Did they not read the fine print? My impression is that the constitution is very much Madison's creation; he understood its implications, but many of his contemporaries did not.
It also appears to me that it would be easy in theory to subvert the US constitution. The President need merely arrange for the Supreme Court justices to be blown up in what would appear to be a terrorist attack. By timing it when the US Senate was in recess, he could then stack the Supreme Court with his cronies. They could then judicially approve all his subsequent (and past) actions, e.g. an indefinite State of Emergency, indefinite recess. That would be entirely constitutional, since the effect of Article III is to make the US constitution mean whatever the Supreme Court says it means.
Implausible? Yes, but not so very different from the President, in conjunction with Congress, expanding the membership of the Supreme Court by stacking it with enough justices to obtain judicial acceptance for their legislative program. That nearly happened with FDR.
What we are more familiar with is the practice of some presidents to appoint activist judges. Denied the right to override state legislation directly, they can nevertheless achieve the same ends by appointing enough sympathetic judges. The result is the politicization, and polarization, of the Supreme Court.
All three scenarios have one thing in common: a federal judiciary overreaching its sphere of competence. Is nullification the answer? I am not sure. What would happen to a state which nullified federal income tax? Would it be denied federal services? But I can understand why many conservatives might not want to take the path to constitutional amendment which you have outlined: from fear of losing. Sadly, libertarianism seems to have become a minority creed.