The Founders did not Grant the Federal Judiciary the Power to Interpret the Constitution

The Price of Liberty ^ | 03/29/2004 | Robert Greenslade

[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.

[Cold Heat]

I would say that it would depend on a court ruling as to what infringement is.

Something that still has not been done to the satisfaction of 2nd ammendment supporters. Or me.

Unfortunately California has it's own ideas about infringement and of commerce, which it can regulate.

[Who is John Galt?]

I've read all of them. Have you?

Yes. And I believe they mean - precisely - what they say. Nothing more, and nothing less.

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.

As I have stated previously, tp, I believe we agree on more issues than we disagree. Allow me to suggest, however, that your attempts to 'put words in my mouth' that I have not written hardly qualifies you to dispute my 'honesty'...

Once again:

Does the Constitution mean what it says - or does it mean something else?

Tell us, my friend: when the Constitution says "Congress," does it actually mean "Congress" - or does it mean 'State legislatures?'

;>)

[Non-Sequitur]

"Those who apply the rule to particular cases, must of necessity expound and interpret that rule."

If not them, then who?

[Cold Heat]

Help me out a sec here.

I have forgotten the term used to define a judge that sees the words as written. (Like Thomas)

I can't seem to find it.

[mrsmith]

"Indeed, the often-heard generalization that ‘the 14th makes the Bill of Rights binding on the states’ is patently absurd... "

While I commend your apparent regard for the neglected Ninth and Tenth Amendments- which it would indeed be logically absurd to apply to the states- the statement is 80% correct.

The debate over the amendment centered around the Barron ruling and it was even expressly stated that it's purpose was to apply the first eight amendments to the states.

80% accuracy is darn accurate for generalizations about the Constitution these days!

[Cold Heat]

"Those who apply the rule to particular cases, must of necessity expound and interpret that rule."

I would think it is a matter of interpretation.:-)

Seriously, interpretations must be make but they should be regarding the application and not the meaning of the law or constitutional statement.

If those need interpretation, there is plenty that go to the heart of the writer.

Anything more to me is judicial activism and constitution writing via judicial fiat.

These are my opinions about it.

How say you?

[Cold Heat]

make=made......................taking a spelling break.

[harrowup]

"No State shall make or enforce any law ..., without due process of law

The operative words being clear that the state in regard to assault weapons made it illegal to own same, with due process.

We still have the "right" to hold and bear arms, but the state has insisted we be licensed to do so and has said no license is available for certain types of weapons. It is not ever going to be possible to change this view and the constant debate is debilitating to the public psyche. That doesn't stop you from owning an assault weapon any more than stolen art; your investment is simply restricted to the black market. Become a museum and put an armed Cobra on the front lawn and have at it.

[tpaine]

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?'
-galt-


_____________________________________


Those are all common english words, well defined for hundreds of years.

-- They, and the words of our constitution, mean what they say.


Now go play your strange word games with some of the other 'states rights' FReekers around here.

[Who is John Galt?]

If not them, then who?

Mr. Jefferson and Mr. Madison both suggested that the parties to the compact possessed the right, in the last resort, to determine whether or not the federal government had complied with the specific, written terms of the Constitution - not vice versa...

;>)

[Gianni]

The Judicial arm, like the Executive and Legislative, was established for the people of the United State of America, not for the States that compromise it.

Freudian typo?

[tpaine]

harrowup wrote:

"No State shall make or enforce any law ..., without due process of law."


The operative words being clear that the state in regard to assault weapons made it illegal to own same, with due process.

_______________________________________


In a discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:

Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9.

As the second Justice Harlan recognized:
 
    "The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on. 

It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints...

[Who is John Galt?]

...it was even expressly stated that it's purpose was to apply the first eight amendments to the states.

Correct me if I'm wrong, but the 14th Amendment nowhere states that a specific, written restriction on "Congress" is somehow 'transmogrified' into a restriction on State legislatures. A restriction on "Congress" would appear to be just that: a restriction on "Congress"...

80% accuracy is darn accurate for generalizations about the Constitution these days!

That may be true. I continue to hope that the Constitution might one day be considered to mean just what it says...

;>)

[harrowup]

The problem being that his interpretation is invalid?

He was cherry picking before there were any used ones on the market.

Honestly, tp, how can you stand reading all that gobbleygook?

[mrsmith]

The conceit of this essay is beside the point.
The contract included a correcting mechanism anyway.

The state legislatures were given their own representatives with power to install judges who reflect their interests, and to remove judges who abuse the contract.
(Oh wait a minute, that was taken away from the states... maybe that constitutional unbalancing is the real cause of these power mad judges.)

[Who is John Galt?]

They, and the words of our constitution, mean what they say.

So, when the Constitution states "Congress shall make no law," it means "Congress shall make no law?" Not 'State legislatures shall make no law?'

Thanks - I just wanted to clarify a simple point.

;>)

Now go play your strange word games with some of the other 'states rights' FReekers around here.

I'm sorry you've taken offense - such was not my intent. Where the Constitution says "Congress," I would suggest that it means "Congress" - nothing more, nothing less. And where Mr. Madison said "in the last resort," I would suggest that he meant just that.

If you believe there is a higher law than the Constitution (God's law, or 'common law,' or your own personal beliefs) I would not dispute your right to so believe. But do not ever tell me that the people of the States ratified anything other than a written contract. That is simple, documented, historical truth - not "strange word games," no matter what you may suggest...

;>)

[tpaine]

A restriction on "Congress" would appear to be just that: a restriction on "Congress"...

I continue to hope that the Constitution might one day be considered to mean just what it says...

93 -galt-


_____________________________________


Nice little word game.

Can we ever hope that you might one day consider to say just what it is you mean about restrictions on congress?

Is our 2nd amendment only a restriction on Congress, in your mind?

[tpaine]

Used what on the market?

[Who is John Galt?]

Is our 2nd amendment only a restriction on Congress, in your mind?

Perhaps you should read the amendment in question - in fact, it nowhere mentions "Congress"...

;>)

[mrsmith]

Well, let's all keep working for 100%.

Nobody but congress passes laws, and in a state nobody but legislature passes laws. It's much less of a stretch to equate them than to try to differentiate them.
I've never seen any contemporary indication that "congress" is in there for more than emphasis so as an "originalist" I'm happy with them applying it to the states.

It's just their arbitrary interpretation of the First- and of everything else- that earns them my contempt.