On this 223rd anniversary of the creation of the fundamental law of our land, we find ourselves heading for a constitutional crisis.
If you think I’m exaggerating, consider the following:
- Voters are increasingly angry, resentful and have little confidence in government and elected officials
- The federal government is increasingly heavy-handed with its authority and is enacting and enforcing legislation without regard for constitutional authority.
- The Supreme Court claims a monopoly on decisions of constitutionality while frequently making absurd and obviously bad decisions.
- States are increasingly challenging the federal government’s authority.
I don’t think the statements above require a whole lot of proof but here are just a few items in support:
This February Rasmussen poll finds 75% of people surveyed to be angry with government policies and many people to have little or no confidence in both the Democrats and Republicans. The federal government has routinely forced unfunded mandates on the states and enacted blatantly unpopular and expensive laws such as REAL ID. They run roughshod over the will of state voters by continuing to enforce federal marijuana laws in medical marijuana states – regardless of President Obama’s promises. Enormous spending bills such as the bailouts were passed against overwhelming opposition by the voters. The federal government attempted to force massive cultural change in passage of the healthcare legislation against the will of the majority of the voters. The Supreme Court continues to pile up idiotic decisions such as Kelo. There are dozens of state nullification efforts involving a wide variety of laws. Arizona’s immigration enforcement controversy is widely publicized example of a state challenge to federal authority. Last April, Texas Governor Rick Perry defended Texas’s right to secede at a tax day event . Gerrymandering, ballot access laws, campaign finance regulation and a clueless press make electoral change difficult or impossible. Legislators regularly suggest the Consitution is outdated.
In short the federal government is acting without constitutional authority and against the will of the voters. The Supreme Court rubber stamps federal excess. Government is unresponsive and the voters have little recourse.
The federal government shows no sign of backing off, the voters are angry, and the states are beginning to defy federal authority. America is being torn apart by forcible centralization of authority.
The founding fathers understood that, without a system of checks and balances, centralized authority would grow and grow until it became a complete tyranny or until the union fractured. That system of checks and balances, while substantially weakened, still exists. Contrary to popular belief, the U.S. Supreme Court is not the ultimate arbiter of Federal authority under the Constitution. The Supreme Court took that power when they gave themselves the power of judicial review in 1803 ( Marbury v Madison ). But they are by no means the only check on Federal power intended by the founding fathers.
The Supreme Court has consistently supported Federal power grabs and can’t be relied on to protect the Constitution. The members are appointed by the President and confirmed by the Senate. It’s a Federal institution. Why would they diminish Federal power?
Just look at the list of bizarre decisions and tortured logic intended to support Federal power grabs. Here are just a few obvious cases:
For a great account of the worst of the worst, check out The Dirty Dozen .
The founding fathers knew this would happen. Here is Jefferson on judicial review by the a Federal Court:
But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best.
If that’s not enough for you here is Robert Yates, a delegate to the Constitutional Convention from New York .
[I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.
The Constitution would probably never have been ratified without assurances to the states that their sovereignty would be protected and that the tendency toward centralization would be checked. Several states explicitly required the addition of a Bill of Rights and the guaranty of continued state sovereignty was at the top of that list. Those requirements eventually became the tenth amendment.
The Tenth Amendment Center explains it as follows:
Massachusetts’ proposed first amendment read: “That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.” Virginia’s proposed first amendment stated: “That each state in the Union shall respectfully retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.” And New York’s proposed fifth amendment demanded that “no power shall be exercised by Congress, but such as is expressly given by this Constitution; and all others, not expressly given, shall be reserved to the respective states, to be by them exercised.” Maryland and South Carolina also submitted proposed State sovereignty amendments.
A country this large and diverse cannot be ruled by a central iron hand. Bureaucrats cannot possibly make better decisions at a centralized level than free human beings can make for themselves. Only the weak and fearful would submit themselves to domination by the collective – and of course those who profit from the collective’s use of force. More important, centralized authority is anathema to improvement of the human condition. Human beings can only reach their full potential through the exercise of their own free will. Centralization of power does not promote the general welfare economically. It was the worst fear of many of the founding fathers. And it strips us all that makes us human. Our Constitution is truly an amazing and awe-inspiring document. It’s the oldest in the world and it can be argued that it’s what enabled the development of the world’s only super-power and maybe even development of the world’s freest and most successful society. The tenth amendment is the law and the Federal government needs to obey the law. The people’s instinct for freedom and the Federal Government’s thirst for power are on a collision course.
It is said that Benjamin Franklin was asked, at the completion of Constitutional Convention, what kind of government we had. He is said to have answered “A Republic , if we can keep it”.
223 years later, the implied question still remains: can we?