Do the People really establish their government or ...

[Rurudyne]

Do We the People really establish our government or is the government 'self-establishing'?

Let me explain the basis for the question.

The 10th Amendment is an interesting article because of more than just the fact that it advances the idea of delegated powers. Certainly it reserves any powers not so delegated to the several States — excepting those few expressly forbidden to the States in the federal Constitution. Most of the time when people talk about the 10th Amendment this is as far as it goes where their presented logics are concerned and they essentially fail to address the full aspect of the article: that powers are reserved to the people too.

I have neglected this aspect of the article in the past; however, there comes a time when you get tired of presenting the same old 'States Rights' arguments ad infinitum. At such a time I finally looked to this often neglected aspect of the text and found something ... important.

Something that raises the question of how governments are established among men.

Consider for a moment what it means to say that powers are reserved to the people in a document that delegates powers to a Government.

Clearly, in light of Article 5, these powers would be those that the people have not yet incorporated — or delegated — to the federal government. The idea of unincorporated powers strikes at the very heart of the origin of governing authority in the United States.

I should point out that the Framers were very comfortable with the idea of unalienable rights established in natural law by a Creator God — no matter if they were among those infamously hostile to Scriptural Christianity or else equally partisans of the Gospels. As such, and in keeping with the idea advanced in the Declaration of Independence that the legislative power may at times even revert to the people when it is sorely neglected, we can see how the insistence that powers are indeed reserved to the people was hardly a new idea.

Simply, an unincorporated power is that which the people have not lawfully delegated to a government according to proper procedures as set forth in Law.

This is why the 10th Amendment, though generally the logical grammar for the whole of the Constitution to which it was amended, would have likely appeared in Article 5 had it been there at the beginning (i.e. it speaks to the source of any powers that future amendments may delegate to the federal).

Yet the 10th and its reservation of powers to the people also has relevance to the several States for it also speaks to the Framer's expectations concerning how the States too came by their powers. So the formula should be seen as a general principal in American governance: that the people retain all powers they do not lawfully delegate to some government.

Also, that the act of delegating a power to one government, say the federal for national defense or else to a State for local law enforcement, says nothing about if such grants of power are general to all applicable governments — under the 10th Amendment they expressly are not. Powers not delegated to the federal are retained by others besides it.

So when it is said that people establish their government it means exactly this: they delegate Powers to it through some set procedure that is deemed lawful and otherwise retain all unincorporated powers to themselves and the future.

Here I will turn to the words of Chief Justice John Marshall from Marbury v Madison for further clarification of this principal:

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.

The clarification I sought was this: the anticipation that the establishment of a Government was in and of itself a permanent gesture that affects not merely the current generation but also all future generations.

Also, as an aside, I'm somewhat convinced that this view of the permanence of governments lay behind some of the hostility between Jefferson and Marshall over the matter. Jefferson clearly expected that frequent turmoils would reshape the government as it had done (rather than wait on amendments) while Marshall was explicit in holding the federal's feet to the fire when it came to respecting the authority that established it ... and incidentally helping to avoid the tyrannies that would enjoin future domestic unrest so long as it did. You could hardy have two more different views on the matter than these.

This is why it is important that we have an amendment process for it is by this means that we may further delegate powers to the federal (or even potentially remove them, returning them to the body of unincorporated powers retained by the people). In essence, those who amend the Constitution themselves become Framers of same with respect to what they have authored, debated and accepted. In turn their adjustments are "designed to be permanent" too.

So we arrive at the Framer's sense of how our government was established: that the people have delegated Power to a Government for the benefit of themselves and their posterity and they have retained all powers not so delegated to themselves — unincorporated.

This is the proper sense that We the People have established our Government with a view of those ends as set forth in the Preamble to the Constitution.

Now comes the rub, and please bear with me as I again turn to Marbury:

To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

Consider the highlighted text in light of this essay.

What is happening when the legislature enacts some law for which it has no delegated authority?

It is assuming to incorporate a power that remains, as per the 10th Amendment reserved to the people.

Can the Congress lawfully do this anyway? Is it not an elected body representing the people?

If a legislature, or an administrator or a jurist for that matter, can claim by right of representation ability to further delegate powers on account of statutes but not according to the proscribed method (i.e. an amendment process) then the people have not even had the opportunity to vote on the matter.

Remember, a representative is there to represent the people and not to assume powers expressly left in their hands. When there is an amendment process, when there are the great debates across the nation on what kind of a Republic we will be, THEN the people have their vote on fundamental Law. They do not vote for alteration of fundamental Law when they merely vote for a representative tasked with carrying out delegated powers actually possessed by the federal at the time.

Or even possessed by a State when dealing with electing a State representative.

So when a government takes upon itself to alter its powers it is in fact a self-establishing entity.

Thus we see the truth behind what Chief Justice Marshall wrote: "if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable."

The illimitable power is precisely the power of any government that is self-establishing and which has no need of some extraordinary procedure such as an amendment process.

Under such a government it is impossible that any powers at all are ever reserved to the people, they do not establish their governments, for whatever powers may seem to be theirs are merely those that their government has yet to assume on their behalf.

So you may see by now why I'm starting to believe that this often neglected aspect of the 10th Amendment may be, in fact, the most important aspect of all.

Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how We the People have also established these State governments too — so that we will not merely trade one master, one great tyrant, for many.

[SunkenCiv]

Thanks Rurudyne. 10th Amendment topic.

[yefragetuwrabrumuy]

Elections are great, if they are fair, but they aren’t. To start with we are burdened with political parties that are extra-constitutional. Note, I didn’t say unconstitutional. However, over time, they have used the two party system to exclude the possibility of any serious third party.

Then, in many States, we are also burdened with open primaries, which are now openly manipulated by both parties to produce less effective candidates.

As an example, John Murtha faced a serious challenge to his seat from a Republican, so he asked two Democrats to change their party affiliation and run against that Republican in the open primary. Then Murtha, unchallenged in the Democrat primary, asked Democrats to vote for one of the two faux-Republicans.

Then the one faux-Republican who won the Republican primary stopped campaigning against Murtha, guaranteeing him reelection.

This effectively disenfranchised all the Republican voters in his district, even though the Republican candidate was ahead of Murtha at the beginning, and would have won in a fair race.

And there are many more dirty tricks, done by both parties to ensure that incumbents are reelected, that money decides the outcome of races, and that those who support federal power are chosen at the expense of those want a return to constitutional principles.

And, with the 17th Amendment, the States are as powerless as are the people.

[OneWingedShark]

You’re assuming that our votes actually mean something.
I am not so sure that they do; given that they are passing legislation where their constituents are calling/faxing/e-mailing en masse, they are passing legislation without READING it, AND above all we now know that the 1st Amendment guarantee to peaceably assemble and present grievances to government is subordinate to permits...

I doubt the Post Office would allow us to show our disapproval by sending them a live bobcat.

No, the way they are ignoring everyone who, even not disagreeing with them on principal but instead, asking them to proceed prudently (IE at least be informed/competent enough to READ the bill before a vote!) then I think that it is unavoidable that conflict should arise; if things do not change course there will be bloodshed.

[xrmusn]

..You’re assuming that our votes actually mean something...etc...
= = = = = = = = = = = = = = =
I used to use a tag line “If voting really meant anything, they wouldn’t let us do it”

[xrmusn]

..You’re assuming that our votes actually mean something...etc...
= = = = = = = = = = = = = = =
I used to use a tag line “If voting really meant anything, they wouldn’t let us do it”

[MainFrame65]

I have read both of your detailed and thoughtful responses to my question, and I must say that I will need to spend some time and attention digesting these treatises.

I greatly fear that a majority of our “public servants” have decided for themselves to replace “servant” with “commander” or “custodian” or more plainly, “prison guard”.

Lindsey Graham provided the single Republican vote needed to pass the Sotamayor nomination out of committee. That vote was a LOT MORE of a betrayal that just an inexplicable bad decision. I read recently that without at least one minority vote, the nomination would have to go without a recommendation for approval. That minority vote was originally going to come from the usual turncoat, Senator Specter, but when he changes sides they needed a substitute and Senator Grahamnesty stepped right up.

Lamar Alexander voted FOR the “porkulous” bill - one of three Repubs. He claimed that it provided essential benefits for Tennessee that made his vote necessary. I told him that NOTHING justified trying to buy my vote with my own money.

Not long after, he voted FOR CLOTURE on the nomination of Harold Koh to State Dept legal counsel, and then cast a MEANINGLESS vote against the actual nomination, which passed easily. But since that vote, his office flunkies are insisting that he voted AGAINST the nomination. When I verified my original accusation, I called back to call them - and the Senator - the liars they certainly are.

I intend to visit every public appearance of every congresscritter I can afford to during this recess - with a broom and a “poop scooper” with signs attached to let them know what they face if they continue their arrogance. I hope others will do the same.

[stevie_d_64]

You may be right about that...

Lemme ask you this...

Do you hope you are wrong about that??? Even though it is a well formulated theory???

When I tell people what I think about this issue, and I tell folks that I believe a majority of Americans are so intellectually laxy that they couldn’t tie their shoes without permission, and some sort of assistance from the Federal government...

I hope it spurns a response that “Ok, I’ll show you!”

Thats what I’m looking for...Play that little reverse psychology thing on them and see if it spreads...

If it works on children, then I’m thinking it might work on our voting age populace...

You know you bring up a good point about the whole reading, or not reading the bill, then voting on it issue...

My US Congressman is quite consistent when it comes to knowing the basics of a bill even if they are not even given a chance to read it...He’ll go the way I would if I voted on it...

The probnlem I have with even that is if the bill is a bad bill, and you vote against it, even if you haven’t read it, is that even the right thing to do???

I’m not saying abstain from the vote, or vote “present” like Obama liked to do at one time...

I wonder of a failure to maintain a quorum could really be a basic form of putting the skids on something like this...

Just shooting from the hip...

What do you think???

[stevie_d_64]

You and OWShark bring up some good stuff, I have to tell you...

In the case of the Murtha re-election (after all his BS we had to put up with), apparently nothing the democrat party did was a violation of the law...Everyone knows and understands what they did, and why...

The first thing is thst if Murtha was such an anchor to the democrats, if they were going to go through all this trouble to cancel out the Republican party candidate for that seat, why did they not just tell Murtha to step aside??? And put one of their goobs in the spot to replace him???

What amazes me about all of that is that the Republican party allowed those two democrat turned Republicans to actually get into this mix...

Seems to me if the goose is good for the gander, the Republican leadership should learn from this...

If our methods of selecting individuals to represent us has gotten this childish, maybe tossing the whole lot would be a good place to start...

I’ll tell you guys a little secret...We’ll all still get up in the morning, eat breakfast, go to work, laugh at the outcome of this...And at the end of the day, the sun will still go down in the west...And in the morning it comes back up in the east...

I believe our government for the most part is embarrasing us...It certainly is building itself up to be tyrranical, but it is extremely embarrasing to know that we have elected a bunch of children to run this show...And they are proving their worth everyday...

Time to spank the entire lot and send the home...

[stevie_d_64]

You have the right idea...Many more in your district need to show up and keep the pressure on till they correct themselves, or just flat out quit and let other folks in their that will do the job correctly...

[ForGod'sSake]

Thanks Civ!

An interesting essay I hesitate to comment on in my present(some might say more often than not) loopy condition. I've been following the "Kenyan" certifigate business most of my waking hours over the last couple days and am in no condition mentally to do justice to this essay. That said, my impression of Justice Marshall from what little I've gathered about him is that he was a bit of a bully, more interested in having his way than strictly interpretating his contract, the Constitution. IOW, somewhat of a loose cannon. Other's mileage will probably vary...

Click the 10th Amendment button for articles tagged "10thamendment". A "statesrights" link is atop the forum page.

Please ~ping~ me to articles relating to the 10th Amendment/States Rights so I can engage the pinger.

I've stopped scouring threads and unilaterally adding names to the ping list, so if you want on or off the list just say so.

Additional Resources:

Tenth Amendment Chronicles Thread
Tenth Amendment Center
The Right Side of Life/State Initiatives
Sovereign States
Find Law(Brief narrative on 10th Amendment)

CLICK HERE TO FIND YOUR STATE REPRESENTATIVES

[April Lexington]

We need to dismantle Federal power fast. Strip the legislative and executive functions and restore to the states. Have a small, tightly supervised federal ministry for a clearly defined and limited set of duties. If we don't reel in Congress and the Dictator soon, there will be few non-violent options left...

[April Lexington]

We need to dismantle the Federal governing apparatus and return political power to the states. Look to a Congress of Governors under a seriously trimmed down federal constitution. This monster must be stopped soon or we are all slaves. Too much power and money is detached from the people...

[TheOldLady]

Excellent read and comments, and thanks for the ping BUMP!

[yefragetuwrabrumuy]

Governments will inherently decay unless there are checks and balances in them. Even the Soviet Union had a “three legged stool” of the communist party, the KGB, and the red army. If one of the three became too powerful, the other two would team up and chop it down to size.

The US constitution with several balances of power. The one most people know is the executive, legislative, and judicial one. But right now the executive branch, and its immense bureaucracy, has become far too powerful. Congress has ceded too much legislative authority to the bureaucracy, and the judiciary has become a bully in its own right.

The real problem lies in a different balance of power, between the federal government, the individual States, and the people. Between the Civil War and the Civil Rights movements, the States lost most of their power. And their most important check, the ability to appoint US senators, was lost in 1913. This left them only the “unthinkable” right to call a constitutional convention.

The power of the people in the equation was also eroded with the use of federal largesse, buying votes to maintain ever growing federal power. So the people have been infringed upon most of all. At no time, short of a wartime military draft, was it intended that the federal government deal with the people directly. The individual States were our shield.

The States have been pushed so hard they are calling “enough” with these now majority of States 10th Amendment resolutions. But the federal government is unwilling, perhaps unable, to change itself. Its momentum has taken over.

With a grotesque economic collapse, though, the States may finally be forced to call a constitutional convention, which on reflection is not as traumatic as it sounds. For the convention remains in effect until it either ends its own mandate, or 3/4ths of the individual States agree to its changes.

Likely, such a convention would have to be held in sequester on a major military installation, prevented from contact with any number of villains who would seek to manipulate it. And even the soldiers of the army guarding it would each be re-sworn to uphold and defend the constitution.

Each State would send two delegates, chosen by the State, not by a popular vote, unless the State agreed to that.

The US government would be a caretaker government, and could not legally vote to tamper with or stop the convention.

Likely, the States would insert a balanced budget amendment, with strict limits on evasion. Much legal precedent would be swept aside, and judges could no longer order States to spend money. The size of the government would be radically reduced. All taxes and efforts at spending within a State would have to go through that State government. That is, the States would pay all federal taxes, outside of international duties and tariffs. Though a federal lottery might be permitted.

The estimated time of the convention would be one year.

[ichabod1]

I would rather send them a live badger or a racoon in a box.

[ichabod1]

This reminds me of the assumption that the taxpayers pay for this or that with their taxes. Hayll noo, taxes are just to keep the schlubs in line. The REAL money is in inflating the money supply.

[ichabod1]

The probnlem I have with even that is if the bill is a bad bill, and you vote against it, even if you haven’t read it, is that even the right thing to do???

If it hasnt' been read, it should be voted against, because you don't know, even if you know the gist of it, whether there are some little gotcha's like "take granny out behind the barn and shoot her" in there.

I'm not being overly stringent, I don't think. Each of these critters has a staff, probably a large staff. If one of each of the critter's ten top people reads 100 pages and explains it to the critter, that's 1000 pages, and the critter can legitimately make a claim to have read it.

[ichabod1]

I don’t know about lettting the state govts appoint the delegates. In too many cases, the state govts are a big part of the problem. If this were going to happen, there should at least be enough of a lead time for the people of the state to make any “adjustments” in their representatives before the delegation took place.

[stevie_d_64]

Do you believe a “counsel” of Governors would be more accountable to the people???

If this were to happen, then ALL the Governors need to be on a two year election cycle...

[April Lexington]

I think state voters can hold a governor accountable for state matters and then national matters. Term limits at the state level would be beneficial as well. We DON’T want to empower the federal component of government. This would allow for a national consensus tied to the popularity of the governor. But, as the federal administrative unit would have no legislative or executive authority, it would keep any one popular governor in check... No more Pelosi terrorizing the Great plains...