State Legislatures Have the Power to Resist Federal Tyranny

America’s Founders fought a bloody revolution in order to escape the “absolute despotism” to which they had been reduced under the hereditary monarchy of the British government, a system that Thomas Paine said “laid the world in blood and ashes.” After that revolution was won, the Founders’ singular focus was to create a republic that would safeguard individual freedom and state sovereignty by vesting only limited, specifically enumerated powers in a federal government. The Constitution’s first ten amendments (the Bill of Rights), Article I, Section 8 of the Constitution, as well as the Ninth and Tenth Amendments establish clear limitations on the power of the federal government and make clear that all power not specifically delegated to the federal government remains with the people, and the individual states.

Under our constitutional system, federal power is the exception, not the rule. As James Madison, the “Father of the Constitution”, wrote in Federalist Number 45, “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.” An observer of the massive, often unchallenged federal overreach occurring in 2023 America who knew nothing about our Constitution or history would be surprised to learn this fact.

Our Founders were jealous guardians of state sovereignty and individual freedom, because they knew too well the dangers of an unrestrained government. The Constitution, the writings of the Founders, and the notes from the ratification conventions establish that every State that ratified the Constitution knew it was doing so with the assurance that it was retaining the vast bulk of its sovereignty, with full authority to nullify any federal law the State believed was outside the scope of its delegated authority. Without this assurance, the Constitution would never have been ratified.

In arguing for ratification of the Constitution, Alexander Hamilton wrote in Federalist Number 33 that any law passed by Congress that was not enacted “pursuant to its constituted powers, will be merely acts of usurpation and will deserve to be treated as such.” (Emphasis mine). Thomas Jefferson wrote in 1791 that “A nullification is the rightful remedy whenever the government violates the Constitution.”

Importantly, sovereign states have both the constitutional right and duty to determine for themselves whether any federal action exceeds its constitutional authority. As Jefferson said in the Kentucky Resolutions which nullified the federal Alien and Sedition Acts, “the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”(Emphasis mine).

Our Founders knew that the federal government is never going to voluntarily limit its own power, and it was up to vigilant state governments and active citizens to do so. Beginning with the Virginia and Kentucky Resolutions in 1798, and for 100 years thereafter, States did just that, routinely rejecting unlawful federal encroachment through formal nullification resolutions and citizen resistance. More recently, through a practice called anti-commandeering, state governments have simply refused to assist the federal government in the administration or enforcement of disfavored federal programs or regulatory schemes within their borders. From the Fugitive Slave Act to the Alien and Sedition Acts to alcohol prohibition to marijuana laws to Real ID, states have effectively nullified federal intrusion in practice and effect either through formal nullification or by simply refusing to cooperate by way of the anti-commandeering doctrine.

The US Supreme Court has repeatedly affirmed the anti-commandeering doctrine as a legitimate expression of State sovereignty, holding that the federal government may not compel states to act in such cases, even when the federal action itself is constitutional. In Federalist Number 46, Madison calls this perfectly legal practice the “refusal to cooperate with officers of the Union.” Equally important, the Court has held that the federal government may not condition substantial federal funding on a State’s non-participation in such programs or schemes.

State Legislatures across the Country have all the power they need to protect citizens from federal usurpation of their sovereignty that has become the rule rather than the exception to the rule. They are, in fact, the last line of defense against it. It is high time for decisive legislative action that puts the liberty of the people before personal or political self-interest. With the encouragement of active citizens, the Louisiana legislature must give the back of its hand to the federal government, and to any international organization with which it may be colluding, the next time it pokes its heavy, bloated head inside our sovereign tent. The days of reflexive compliance with federal tyranny must end.

Elko Daily Free Press
July 31, 1996

Joseph Sobran
Judge Bork and the Tenth

WASHINGTON — Nearly a decade ago, the Senate rejected Judge Robert Bork’s nomination to the U.S. Supreme Court. He was defeated largely because he insisted that a primary test of the Constitution’s meaning is the “original intent” of its authors — an idea abhorrent to liberals, who prefer to treat the constitution as a malleable “living document.”

I’ve often wondered how Judge Bork would have ruled as Mr. Justice Bork. Nobody doubts that he would have lifted the court’s intellectual level. But he might have had his sharpest disagreements not with the court’s mundane liberals. but with its two keen conservatives. Antonin Scalia and Clarence Thomas.

Judge Bork has often dismissed what he once called “conservative nostalgia for the Tenth Amendment.” Justice Thomas in particular has insisted that the Tenth still demands serious consideration.

The Tenth is like no other provision of the Constitution. It says that the powers that aren’t delegated to the federal government belong to the states and the people.

Unlike, say, the clauses that authorize Congress to raise armies and coin money. the Tenth is not specific. It is comprehensive. It either means everything or it means nothing, because. unlike other clauses. it tells us how to interpret the rest of the Constitution.

The big battle over the Tenth occurred during the New Deal, when the Franklin Roosevelt administration wanted to expand federal power far beyond anything explicitly listed in the Constitution. Roosevelt’s troubles were over when his compliant court ruled in 1940 that the Tenth Amendment was no more than a “truism.” That is. it meant nothing. A couple of years later the court ruled that Congress’ power to regulate interstate commerce meant that it had the power to regulate — I paraphrase loosely — damn near everything.

In a recent TV interview, Judge Bork suggested that the Tenth is dead and gone. He said: “In Article I, Section 8 of the Constitution, [the framers] listed the powers of Congress, which were somewhat general, but definite enough. And in the Tenth Amendment they said they really meant it. that powers not granted remained with the states or with the people. That was a system that began to break down almost at once.”

He added: “I think the idea of enumerated powers through which the federal government is limited is an unrealistic idea and never had a chance of working .. The Tenth Amendment and the enumeration of the federal powers ... have become passé. The federal government has assumed plenary power, and it is too late to turn back.”

I hope he is wrong. But what if he is right?

If the Tenth was futile from the start, the implications are enormous. It means that the anti-federalists were right when they opposed ratifying the Constitution. They argued that the federal government, given the powers enumerated in the Constitution, would be so powerful that it could usurp any number of other powers never granted to it, and nobody would be able to stop it.

In other words, the Constitution would be unenforceable against the very government it was supposed to restrain. To put it another way, the Constitution itself doomed us to unconstitutional government!

It’s no answer to say that this is a democracy, and that if this is what the people want, so be it. The Constitution was supposed to protect us from pure majority rule.

What it comes to now is that the Constitution may be distorted by either majoritarian political pressures or the minoritarian eccentricities of a federal judiciary. The one thing it doesn’t do is define (and thereby limit) federal power.

What would the Tenth mean in practice? It would mean that a minority could challenge any law passed by Congress, and Congress would have to prove that it had the constitutional power to enact that law.

This was the clear “original intent” of those who wrote and ratified the Constitution, and the clear understanding of generations of American afterward. The borders of federal power were always disputed, but not the principle of enumerated powers. Now Judge Bork says that the principle itself is lost.

Just one question: So why pretend we have a constitution?

I’ve commented on this many times in the past.

Right now there are 23(?) states that are Republican across the board. Going to be 24 once Landry is sworn in.

If all 24 united and acted as one, they could damn near put a stop to all of it. At least in their respective states. First thing they could do is pickup the lawsuit that Tennessee filed against Soetero about forcing the states to pick up the tab for refugee’s health care costs. That case worked its way around the court system, finally being dismissed because of....wait for it....STANDING. Liberal judge said that the Tennessee legislature had no standing in standing up for the citizens of the state because the dirty Governor and AG didn’t approve the lawsuit.

But, sadly, way too many(if not all) of the legislatures, Governors, & AGs are about as RINO and Establishment as they can be. Most of them just trying out and waiting their turn to get to DC. Doing the same dirty corrupt sh*t, if not worse, than any of the clowns in DC.

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