Federalist, No. 78
Which is not to suggest that the federal courts possess a final and exclusive power of constitutional review (the right to say, in the last resort, what is and is not constitutional). As James Madison observed in Federalist No. 46:
”The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of [unconstitutional] ambition…Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these [federal military forces] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [State] governments possessing their affections and confidence…”
Nothing could be more clear: Mr. Madison fully expected the States to oppose unconstitutional actions by the federal government – using military force, if necessary. Would you suggest that Mr. Madison’s “State governments, with the people on their side,” could oppose unconstitutional actions by the federal government only if ordered to do so by that same federal government?
;>)
This entire article is flawed....the analogy of creating an agent is inherently false, as nowhere in the Founders' thoughts is that even implied.
Apparently you do not consider Thomas Jefferson and James Madison to be "Founders." And you may wish to review the preeminent legal reference of the early Republic:
”The [Tenth Amendment] to the constitution of the United States, declares, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
”The powers absolutely prohibited to the states by the constitution, are, shortly, contained in article 1. section 10…
”All other powers of government whatsoever, except these, and such as fall properly under the first or third heads above-mentioned, consistent with the fundamental laws, nature, and principle of a democratic state, are therefore reserved to the state governments…
”The federal government then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary: its councils, its engagements, its authority are theirs, modified, and united. Its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent.”
St. George Tucker, Blackstone’s Commentaries, 1803
An “organ” possessing powers ‘emanating’ from the “sovereign” States can certainly also be described as an “agent”…
;>)
The FOunders were explicit in their directive that the Federal government, via the Constitution, had the power to trump the States (albiet a limited power, which was to be limited through the Judiciary....which is why the Founders made the Judiciary separate from the Legislative branch).
Hmm… I can’t find the word “trump” in my copy of the Constitution. Alexander Hamilton’s plan of government included an explicit federal power to veto “the laws about to be passed” in each State. Mr. Hamilton’s proposal would certainly have ‘trumped the States’ – but it was resoundingly rejected by the constitutional convention, and never made it into the Constitution.
Perhaps you’re referring to Article VI:
”This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
The Constitution is the “supreme Law of the Land.” If the federal government possesses any “power to trump the States,” it must be one of the powers delegated to the federal government by the Constitution. And if the “power to trump the States” is limited (and it most certainly is), it is limited by the terms of the Constitution, not “through the Judiciary.”
Speaking of which, perhaps you can answer a question posed by a Jeffersonian republican almost two centuries ago:
” The word supreme is used twice in the constitution, once in reference to the superiority of the highest federal court over the inferior federal courts, and again in declaring ‘that the constitution, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges in every state shall be bound thereby.’ Did it mean to create two supremacies, one in the court, and another in the constitution? Are they colateral, or is one superior to the other? Is the court supreme over the constitution, or the constitution supreme over the court? Are ‘the judges in every state’ to obey the articles of the union [i.e., the Constitution], or the construction [interpretation] of these articles by the supreme federal court?”
John Taylor, New Views of the Constitution of the United States, 1823
Which is it: is the federal court supreme over the Constitution, or the Constitution supreme over the court?
;>)