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.

[Rurudyne]

This is a new argument for me, much as I say in the text above, and I'm looking for feedback and criticism (as well a comments in general) in order to better express these ideas.

I placed this in "activism" because it is activist: I'm essentially threatening the very basis on which this current administration of laws is deemed proper and by which the so-called progressives are able to do their thing AT ALL.

Or at least such is my intent and hope.

I would also like to point out my belief that what Marshall wrote in Marbury has actually been grossly misrepresented: that the actual opinion demands a methodology for judicial review rather than merely "establishing it". This can be demonstrated by the fact that Marshall himself pointed out in the body of the opinion that if judicial review was proper or not had actually been addressed by a PREVIOUS Case.

[BenLurkin]

We know how government works.

People with lots of money use empty suits as sock puppets.

Voters are given the lousy choice of lose their liberty right away or lose their liberty gradually.

Meanwhile each new law makes the money guys more powerful.

[OneWingedShark]

Interesting read.

But I like how it squarely puts [Federal] Government’s assuming of rights into the context of assuming rights that are not delegated to it.

There is a word for that, if it is a material item: theft.
There is a word also for the illegitimate taking of authority: mutiny.

Correctly seen, the encroachment of government on the Rights of the People IS grounds for the People to defend themselves; even homicide is acceptable when it is done to protect someone’s right-to-life. (”You always have the right to defend yourself. You always have the right to defend US and coalition forces.” — Portion of the standard ROE in Iraq)

[OneWingedShark]

I have some friends who like equality: .22, .357, .410, .45, 12 ga, 5.7x28...

[Rurudyne]

Mutiny on the Potomac: How the Federal Government has Usurped the Powers Reserved to the People

THAT would be a great title to a book!

[KrisKrinkle]

Aw man, it’s too early on a Sunday for this.

Regarding the question: “Do We the People really establish our government or is the government ‘self-establishing’?”

I would consider changing that to: “Do We the People really establish the Federal Government or is the Federal Government ‘self-establishing’?”

Reason: Clarity. You seem to be writing about the Federal Government, not State and Local Governments. Of course the question is applicable to State and Local Governments, but the essay doesn’t seem to go there. People speak of the “government” as if were a seamless whole but it’s not (not yet anyway).

And I’m not sure about use of the word “establish”.

Government is never “self-establishing” in that in the beginning some person or people always decide to initiate or impose it. On the other hand, like a fire that has been “established” by someone, unwatched government can get out of control and establish itself in areas where it wasn’t before and where it isn’t wanted.

And then there’s this:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and “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”.

Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?

[MainFrame65]

Like many other Freepers, I have taken an oath to “preserve, protect, and defend the Constitution from “...all enemies, foreign AND DOMESTIC.” Most of this group did so just once, in the form of an oath of enlistment. I, and others, also took an oath of citizenship. And many have also taken such an oath as an elected, appointed, or commissioned government official.

And now the question - was there a time limit on that oath? Were we - any of us - ever relieved of the obligation that oath represented? Did I somehow fail to receive the official notice that I could now leave those tasks to my elected representatives? Please, if any of you have that letter, would you post it here so I can lay my burden down?

[yefragetuwrabrumuy]

An inherent problem with the US constitution is that, while it establishes many means to restrict the growth of the federal government, it provides few undramatic means to prune the excessive growth of government.

In other words, the individual States need some means by which they can calmly dismantle unauthorized and unruly actions by the federal government.

One means *did* exist, that provided an effective check on the federal government. This was the selection of US senators by the individual States. But this was thwarted in 1913 with the 17th Amendment, after ratification by the States, with the direct popular election of senators.

So the individual States, in a fit of populism, stripped themselves of the means by which the could control an ever invasive and out of control federal government.

Today, with this large number of 10th Amendment resolutions being drafted by the States, since the federal government is ignoring this plea, the next, least dramatic action by the individual States should be the repeal of the 17th Amendment.

The alternative would be for 3/4ths of the States to call a constitutional convention. And as dramatic as this sounds, in a time where federal extravagance has gone beyond the pale, with a complete economic collapse, there may be no other choice.

So a repeal of the 17th Amendment would be the much preferred option. Likely this would mean that 1/3rd of the US senate would be confirmed or replaced by their home State legislature in the following three federal elections.

[Defiant]

We know what the constitution says, and how the government has gone astray. However, 95 percent of the people could care less about theoretical philosophizing about how it is supposed to work. Democrats don't care about law or process, they care about power. Their loyalty is to the establishment of global socialism.

Republicans don't care either. If you polled Republicans, and told them that to follow the Constitution, you have to fundamentally change US foreign policy and its implementation, eliminate social welfare programs entirely (not just control their spending), and get the feds out of just about everything they are doing now in labor, education, energy, just about everthing they now do.

No Social Security? Medicare? Student loans? Foreign aid? Undeclared wars? WWBKS? (What would Bill Krystol Say?) Answer: "No, we can't do that, we are a modern world power. We just have to rein in government a little, not weaken it. (By the way, that Obama, he cuts quite a figure)"

To return to first principles could frankly not be accomplished without a revolution and restoration. Through the political process, the best you can hope for is a conservative parachute placed on a socialist dragster hell bent for the finish line. And even that parachute is in jeopardy, thanks to Obama's authoritarian rule.

So the question I have is, "Who cares"? You might as well create a "SimUSA" with alternate versions of the country, it would be just as relevant. Unless you are willing to combine theory with action.

I agree with this analysis of the intent, by the way, and am not intending to be grumpy, but just pointing out that 90 years of encroaching fascism has led to a system that is not subject to being changed, even if James Madison himself came back from the dead and told us to. Nobody cares what the constitution says anymore.

[CodeToad]

Just remember, during the days of the Soviet Union and their murdering thuggery, they, too, elected their representatives. As with our system, theirs was so corrupt that no representation of the people actually occurred. With our system, we can vote out a person, write letters, make phones, and even protest in the streets, but what elected representative gives a damn? I mean, while you were doing all that they were having lunch with a lobbyist who handed them a check large enough for them to ignore you.

So, now that your 1st amendment rights to speech and to petition the government for a redress of grievances has been trumped by cold, hard cash, what else do you have at your disposal to enforce your rights? (Hint: What comes after the 1st.)

[OneWingedShark]

Like many other Freepers, I have taken an oath to “preserve, protect, and defend the Constitution from “...all enemies, foreign AND DOMESTIC.” Most of this group did so just once, in the form of an oath of enlistment. I, and others, also took an oath of citizenship. And many have also taken such an oath as an elected, appointed, or commissioned government official.

And now the question - was there a time limit on that oath? Were we - any of us - ever relieved of the obligation that oath represented? Did I somehow fail to receive the official notice that I could now leave those tasks to my elected representatives? Please, if any of you have that letter, would you post it here so I can lay my burden down?

This is the only thing I can offer you:
http://docs.google.com/View?id=dv698tm_25c7b35cc9

[xine]

LOL I was just about to look up that book until I realized that you were just suggesting a title. I hope someone writes that book soon!

[OneWingedShark]

>So a repeal of the 17th Amendment would be the much preferred option. Likely this would mean that 1/3rd of the US senate would be confirmed or replaced by their home State legislature in the following three federal elections.

I would also like an amendment which forbade the government / congress from spending monies not in existence... the Constitution allows for the minting of silver or gold coinage only... perhaps the federal government should be forbidden to use EFT, Check, and Credit Card. By making our money a physical thing they could not as easily spend money we do not have. (States, however, would not be so constrained.)

[OneWingedShark]

>No Social Security? Medicare? Student loans? Foreign aid? Undeclared wars?

Sounds GREAT to me!

[OneWingedShark]

>Nobody cares what the constitution says anymore.

See the link at Post 11.

[Rurudyne]

"Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?"

By means of ordinary statute: no.

But the route of amendment is available and it is by that route that the balance of federal Powers are addressed (both to grant new abilities or even take away old ones).

To clearly highlight this fact I will turn to the writings of Justice Field in his dissent in Slaughterhouse.



Of course, you will properly say: "Wait, you're pointing to a dissent rather than the majority opinion!" but please bear with me.

I turn to Field's dissent because in it he was FORCED to make what can only be a statement against interest and that is what I'm highlighting.

By this I mean that even though he wanted to find for the butchers of New Orleans, and even though he was in fact laboring to misconstruct the 14th Amendment as well as confound the fundamental difference in Laws between "Privileges and Immunities" (as per A4:S2:C1) and "privileges or immunities" (as per the 14th Amendment) as to how these are founded: he had to make THIS admission:

"That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress reenacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment."

This is actually the clearest statement made of the intent and function of the language in the "privileges or immunities" clause of the 14th Amendment.

This clause exist to grant to Congress delegated Power to respect in statutory law civil rights that the several States could not disparage and this is what the majority upheld in Justice Miller's opinion for the majority.

The reason this was a statement against interest is found in the preceding text where Justice Field writes:

"The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

"What, then, are the privileges and immunities which are secured against abridgment by State legislation?

"In the first section of the Civil Rights Act, Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right

'to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.'"

This is where Field was intentionally confusing the distinction between "Privileges and Immunities" and "privileges or immunities". As I said, it's all a matter in how these are founded.

The former, "Privileges or Immunities", are sourced in our rightful common laws and are the very same unalienable rights mentioned by Justice Washington in Corfield v Coryell which both the majority opinion and dissents mention explicitly in Slaughterhouse. Under the federal Constitution the several States are responsible to respect these "P&I" under A4:S2:C1 while the federal are responsible to respect them under the 9th Amendment (for there is indeed no other body of rights — common law or statutory — retained by the people at the time the amendment was authored).

The latter, "privileges or immunities", are only sourced in statutory laws passed by a legislature — in this case Congress. As such they can be extended or even later revoked.

It is important to realize exactly what was happening in the process that led up to the language of the 14th including a delegation of Power to Congress just as Justice Field wrote.

Several of the several States were laboring to make the lot of freedmen as much a Hell on Earth as they could get away with.

In the process of doing so they were factually disparaging A4:S2:C1 "Privileges and Immunities" that they had no right or lawful power to disparage — being forbidden to by the Constitution.

The only legal recourse at the time was to be found in the courts. That meant that freedmen would have to wait on the whims of Case law and jurisprudence to see justice done.

Meanwhile, the Congress was unwilling to wait on the courts and so they passed the very first federal Civil Rights Act which did not enumerate any new rights but merely reiterated common law "P&I" that free men should possess anyway — every right which Field highlighted in the above quote is also a "P&I".

The problem was that this was not a remedy legally available to Congress. So rather than wait for the courts they acted to properly delegate a Power to give them the very power to make their civil rights act legal.

It was, if you will, ANOTHER enforcement method to hold the State's feet to the fire to respect the fundamental and unalienable "P&I" they should have been respecting all along.

This is why we find Justice Field echoing the words of those who debated the clause and the 14th Amendment. The CRA 1866 literally DOES NOT respect any new "Privileges and Immunities" but it does create a separate and similar set of "privileges or immunities" established in statutory laws and not under common law.

This is how Justice Field set about to confuse the distinction between "Privileges and Immunities" and "privileges or immunities". In the process he clearly STATES that if all the amendment accomplished was just what its authors meant it to accomplish (and remember that he is forced to admit that this was the actual intent) then it: "was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage."

I'll not be so cynical to opine here that the whole reason that Justice Field took this course of action was because this was a new Power for the Congress that offered nothing similar to the Court (as indeed Field's dissent would do): that sort of charge of misbehavior I'll leave to lay at latter day courts whose willful lawlessness is often astonishing.

Rather, I'll simply lay at Field's feet the charge that he had ceased to be a jurist but had instead unethically become an advocate for the butchers of New Orleans. It is obvious that the lawyers representing these butchers had misconstrued the 14th Amendment when they essentially demanded that it guaranteed what we would in these days call a "right to work". No such statutory "poi" was enumerated by Congress at the time (nor has one been so enumerated at this time).

There is, without a doubt, a reasonable claim for the right of Free Labor (our "right to work") under our rightful common laws. Given that both the majority opinion and dissents made reference to our A4:S2:C1 "P&I" there can be little doubt that had the butchers' lawyers simply argued on the basis of A4:S2:C1 they would have won their case — possibly in a unanimous decision.

But the buthers' lawyers were inept twits so Justice Field, rather than base his judgment on the arguments actually offered, attempted to argue their case for them. If in the process he had to misconstruct the article he was sworn to uphold it would seem to have not been such a big deal (to him).

I would also point out that the modern courts essentially take their cue from Justice Field. Acting as if privileges or immunities established by judicial fiat are in fact somehow the unalienable rights of the people even though there may be nothing resembling such 'poi' under our rightful common laws (as is the case, for example, with abortion). Conversely, they will also occasionally disparage a genuine "P&I" in favor of one of their inventions of judicial fiat.



I hope I've been able to adequately describe the situation surrounding the 14th Amendment's "privileges or immunities" clause and also provide adequate cause to trust my interpretation.

What this means for your question I hope should be plain too (I really DO try to work on matters of presentation so I'm not indecipherable, but as you wisely pointed out sometimes I'm in need of clarification); however, just to be complete....

Among any powers not delegated to Congress could there have been a more needful ability at the time in question than requiring the several States to respect unalienable rights that they should have honored anyway?

If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?

This tyranny of the States was not some mere emergency derived from external powers threatening our nation but it was like a 5th column within the nation striking a blow at our fundamental Laws and at our unalienable rights. So if this situation is not worthy of 'a little lawlessness by comparison' (Congress enacting the CRA 1866) then nothing is or truly ever will be.

Or such are my thoughts on the matter.



Again, I (unlike the current President and ... just about every Democrat in Congress) always welcome criticism.

[Rurudyne]

I absolutely agree that the 17th was a disaster.

All in all, 1913 was a BAD year for the Republic.

[Rurudyne]

Me too.

[stevie_d_64]

...undramatic means...

Ok, don’t get me wrong, I am not cross with you but it seems to me the more the government can turn the people into masses of intellectually lazy phlem, the better for them...

Our system allows us to prune the government every two years...

Apparently, a concept lost (or at least ignored) by some...

“When in the course of human events it becomes necessary...” lalala...

I think the premise of that dramatic statement is getting close for some, yet the simple solution I mentioned above is lost sometimes even to them...

Even though you could count on me to do my part, in either senario...

But I will offer this...The message in 2010 could really start here this year with local and other state elections...I’ve been trying to pound that idea from way back before the elections last year...

I want people to prove me wrong, show me how committed you are to the process...If it doesn’t work, well then, I wonder who we have to blame for the future then???

I think it would be absolutely outstanding to send all, if not a few of these pains in our arses home, forever...

To me the best way to hurt a politician is to send them home, fire them...

But again, this is just my opinion...

BTW, that is a great essay by the original poster, one that needs further study...I’m not looking to throw rocks at it at all...

[Defiant]

Me too. I’m a strict constructionist who favors limited government as limited by the enumerated powers of the Constitution, and not as amended by judicial fiat over the past 90 years (ever since Teddy Roosevelt and the ascension of the Progressive movement into the Republican and Democrat party in various guises.)