Posted on 04/02/2004 6:52:40 AM PST by Free Fire Zone
The Founders did not Grant the Federal Judiciary the Power to Interpret the Constitution By Robert Greenslade © Nitwit Press
March 29, 2004
Several prominent conservative commentators have stated that it is critical to re-elect George W. Bush because presidents have a direct voice in the appointment of federal judges and these judges “have the power to interpret the Constitution.” Since most Americans have been carefully indoctrinated in a federally funded education camp masquerading as an institution of higher learning, most people, including conservative media pundits, only have a vague understanding of the system of government established by the Constitution. This has made it relatively easy for proponents of big government to advance numerous constitutional fairy tales. The purpose of this article is to dispel the myth that the Founders granted the federal judiciary the power to interpret the Constitution.
In order to understand this issue, it is necessary to begin with the basics. Contrary to popular belief, the Constitution did not consolidate the several States or their people into a single nation. The Constitution simply modified the federal system of government that had been established by the Articles of Confederation. The word federal has a very important meaning. Shortly after his death in 1850, John C. Calhoun’s essay entitled A Discourse on the Constitution and Government of the United States was published in book form. The following excerpt is a concise definition of the word federal as it relates to the federal system of government established by the Constitution:
It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation.
As stated by Mr. Calhoun, the federal government is the States’ government. When the States adopted the Constitution, they created a common agent called the federal government. They empowered their agent, via the Constitution, with the authority to perform limited functions that would be difficult or impossible for the States to perform individually. If the federal judiciary had the power to interpret the Constitution, then the agent would be superior to the principals because it could circumvent its grant of power and nullify the Constitution through its rulings.
Thomas Jefferson discussed this principle in his draft of the Kentucky Resolutions of 1798. These Resolutions were written in response to an attempt by Congress to expand the criminal jurisdiction of the federal government through a set of laws entitled the “Alien and Sedition Laws.” Jefferson wrote:
The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but…by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes [and] delegated to that government certain definite powers…and…whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force…To this compact each state acceded as a state, and is an integral party, its co-states forming, as to itself, the other party…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…[Bold added]
The State of Virginia also adopted a set of resolutions in response to the “Alien and Sedition Laws.” These resolutions defined the nature of the Constitution and the character of the federal government. The Virginia Legislature also defined the Constitution as a compact between the several States. These resolutions paralleled Jefferson’s overview of the Constitution and re-affirmed the principle that the States, not the federal judiciary, had the power, in the last resort, to define the extent of the powers delegated to their federal government. The Virginia Resolutions stated in part:
[T]his Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting the compact as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and are duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
As stated above, federal courts are not the final arbitrator of the Constitution or the extent of the powers delegated to the federal government. Since the Constitution is a compact between the several States, and the federal government is not a party, but the result of that compact, it lacks the authority to define the extent of the powers delegated to it by the States. Only the individual States, as the exclusive parties to the compact between themselves, possess that power. If the federal judiciary had the power to interpret the Constitution, then it would be meaningless as a written document, because, as stated by Jefferson, judicial discretion, not the Constitution, would determine the measure of the federal power.
In his book, The Federal Government, Its True Nature and Character, Able Upshur, who had been Secretary of State and Secretary of the Navy, devoted a large portion of his commentary to this subject. Published in 1868, this might be the finest book ever written on the Constitution and system of government created by that document.
The, Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge the extent of its own powers, without reference to his constituent? To a certain extent, he is compelled to do this, in the very act of exercising them, but always in subordination to the authority by whom his powers were conferred. If this were not so, the result would be, that the agent would possess every power which the agent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason. If such a rule would prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people. If then the Federal Government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so? Nay. It is said that this department may not only judge for itself, but for the other departments also. This is an absurdity as pernicious as it is gross and palpable. If the judiciary may determine the powers of the Federal Government, it may pronounce them either less or more than they really are. [Emphasis not added]
If the States did not grant the federal judiciary the power to interpret the Constitution, then what is the proper role of the federal courts in questions involving federal legislation and the Constitution? When an act of Congress is appropriately challenged as not conforming to the Constitution, the federal judiciary has only one duty—to lay the article of the Constitution that is invoked beside the statute that is challenged and decide whether the latter squares with the former. The judiciary does not have the power to interpret the Constitution¯it has the power to scrutinize the statute being challenged to make sure it falls within the scope of the powers delegated to the federal government by the States via the Constitution.
In any contractual agreement involving the creation of an agent, the final word on the extent of the powers granted to the agent rests with the principals not the agent. If 13 home owners got together, and by contract, created an agent and limited its duties to mowing their yards, trimming their trees, and maintaining the outside landscaping, would the agent have the power to interpret the contract to include duties not enumerated in the contract? Absolutely not. This would be an absurdity because the contract would not be worth the paper it was written on. In such a case, the principals would sit their agent down and tell it to either stay within the scope of the powers granted by the contract or we will amend or terminate the contract. The Constitution was designed to operate on this same principle. Unfortunately, the States are failing to exercise this power.
The underlying reason why the federal judiciary was not granted the authority to interpret the Constitution was stated very succinctly by John Marshall who would later become Chief Justice of the United States Supreme Court¯“the judicial power cannot extend to political compacts.” Since the Constitution is a political compact between the several States, and the federal government is not a party to that compact, it lacks the constitutional authority to interpret the compact, or decide, in the last resort, the extent of the powers granted to it by the several States.
Actually, “the powers delegated to both Federal & State governments come from” the people of the individual States. And if (by “we the people”) you are referring to ‘the undifferentiated people of the Nation as a whole,’ you are referring to a people that (in the words of Mr. Justice Thomas) “the Constitution does not contemplate … will either exercise power or delegate it.”
The states must obey our constitution & amendments, just as they ratified them.
The States are bound by the specific terms of the Constitution of the United States. In the words of Senator Robert Augustus Toombs of Georgia:
“…[T]he Constitution is a compact. It contains all our obligations and the duties of the Federal Government…I say that the Constitution is the whole compact. All the obligations, all the chains that fetter the limbs of [the people of Georgia], are nominated in the bond…”
The States are not, however, thereby required to comply with ‘unwritten law,’ or (if we are to believe Mr. Jefferson & Mr. Madison) with the dictates of federal judges that ‘palpably’ violate the Constitution.
This article is a typical 'states rights' piece of agit-prop, intended to justify state government infringements upon individual rights.
On the contrary, I would suggest that the public comments of Mr. Jefferson and Mr. Madison properly define the “states rights” position…
;>)
Unable to change the US Constitutions guarantees of personal liberties, the statists attempt an 'end around' by claiming States can ignore them.
Given that “statists” promote the concentration of economic and political power in government, a more common occurrence might be described thusly: “unable to change the US Constitutions guarantees of personal liberties” (such as the First & Second Amendments), “the statists attempt an 'end around' by claiming” the federal government can ignore the Constitution (often by means of federal judicial fiat).
For example, the federal ‘campaign finance reform’ law restricts my First Amendment rights in ways that the laws of my State certainly do not. And the federal ‘assault weapons ban’ infringes my Second Amendment right to own a ‘politically incorrect’ self-loading firearm - even though the laws of my State do not.
;>)
Bump!
;>)
Indeed, the often-heard generalization that ‘the 14th makes the Bill of Rights binding on the states’ is patently absurd...
;>)
Well, it has and it has not.
What an interesting balance!
The question is.....has the balance become upset due to recent judicial fiat regarding the creation of a so called right of privacy, or is it just trying to self regulate or compound my confusion.
Is this an attempt to right an imbalance in power between the people and it's governments? Or is it liberal clap trap.
I am so confused.(rightfully so):-)
The ability to "vote with one's feet" is essentially guaranteed by the "states' rights" point of view. And it is essentially annulled by the 'winner-take-all' nationalist point of view...
;>)
Yep.
Looking at it objectively, the tension between the states and the Fed is a good thing and not a bad one.
Anything other would indeed be Federalism and total government control.
The fights over this power are welcome and needed to keep everyone one their toes.IMO:-)
Actually, the 14th Amendment states:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Are the "privileges or immunities of citizens of the United States," "due process of law," and "the equal protection of the laws," defined by the Constitution - or by some 'unwritten law?'
While you consider the question, perhaps you can tell us whether the "Congress" (as denoted by the specific written terms of the Constitution) somehow includes State governments....
;>)
(In short - does the Constitution mean what it says - or does it mean something else? ;>)
Actually, it would appear to be 'every day of the year' for folks like you...
;>)
If that were to happen, many of the federal district court decisions that we so abhor would and will become the norm. SCOTUS would support them even more frequently than they do now.
The states, in that event would be forced to take back what they have given.
Their consent.
So actually, I see this as but one side to a argument that may be made in the future. I would not call it crap at this time. More of a warning.
LOL! Obviously you've never read Mr. Madison's Report on the Virginia Resolutions:
”…[T]he General Assembly [of the State of Virginia] views the powers of the federal government ‘as limited by the plain sense and intention of the instrument constituting that compact,’ and ‘as no further valid than they are authorized by the grants therein enumerated.’ It does not seem possible that any just objection can lie against either of these clauses. The first amounts merely to a declaration that the compact ought to have the interpretation plainly intended by the parties to it; the other, to a declaration that it ought to have the execution and effect intended by them…
”The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition..."
Your posts here are (as usual ;>) "like an eight yr old babbling about nuclear physics no serious or knowledgeable person takes it seriously..."
;>)
Read the Second Amendment, the Tenth Amendment, and subsequent amendments - I believe you can answer that question yourself...
;>)
Yup!
Actually, the 14th Amendment states:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Are the "privileges or immunities of citizens of the United States," "due process of law," and "the equal protection of the laws," defined by the Constitution - or by some 'unwritten law?'
Those are all common english words, well defined for hundreds of years. -- They mean what they say.
In my case, CA has deprived me of the liberty to own a type of property, by prohibiting the possession of certain 'assault weapons'.
It's quite clear to me that CA is violating the 14th amendment, -- and the 2nd..
How can you call yourself a conservative and yet disagree?
Read the Second Amendment, the Tenth Amendment, and subsequent amendments - I believe you can answer that question yourself.
I've read all of them. Have you?
By your non-answer, it is apparent that you can't, or won't, be honest enough to give us a plain yes or no.
Two points:
1) Have I called myself a conservative? (Hint: I actually prefer to 'call myself' a Jeffersonian republican... ;>)
2) Have I said that I disagree? (Hint: I actually do not disagree in this instance... ;>)
I ask again:
Are the "privileges or immunities of citizens of the United States," "due process of law," and "the equal protection of the laws," defined by the Constitution - or by some 'unwritten law?'
And once more:
Does the Constitution mean what it says - or does it mean something else?
;>)
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