Rights and Authority
Why the Federal Government?
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The War for Independence had just been won. Thirteen sovereign States were operating under the Articles of Confederation, which had already been shown to be inadequate. The leaders called for a second constitutional convention to “fix” the Articles of Confederation.
When these men gathered in Philadelphia, in May of 1787, it did not take long to realize that the Articles of Confederation did not need to be revised, but needed to be replaced. During this convention, the men produced a proposed Constitution for the United States of America.
First of all, what is the Constitution?
The delegates to the convention drew up an agreement; which, if ratified (agreed to and adopted) by the States; would establish a Federal Government. The Constitution lays out the rules for the operation of such a government. That’s pretty much it. The various articles in the Constitution detail what each of the three branches of government are permitted to do. We refer to the list of duties or powers of the government as the enumerated powers. In other words, this document established a new government for a few, very specific purposes.
The Constitution was submitted to the 13 states for debate and possible ratification. Once approved (by at least nine), a Federation would be formed including all States who ratified the Constitution. Any State that did not vote to ratify would not be a part of the Federation. Each State maintained the power to decide its own direction as relates to this matter. Remember, the States are sovereign and independent.
Why would independent and sovereign States vote to form a general government, under a Constitution, which would preside over a confederation of the States?
During the few years that had passed, after declaring independence, it became clear that the individual states could not do certain things separately, as well as a general government could do on their behalf. The States formed a confederation (alliance) whereby, jointly they would be better able to perform certain aspects of running a country.
ALL other duties, aspects and powers of government; the States and the people reserved to themselves.
Who were the parties to the Constitution or the constitutional convention?
The parties with the authority to call for a convention and to implement the Constitution, which would establish the general government for the United States, were the 13 States and them alone. The Federal Government was NOT a party to the Constitution.
It is important that we understand this issue. The States, through ratification, agreed to the specific document that listed the limited powers of the general government that they (the States) were establishing. The general government had no say in the convention, the wording of the Constitution, the powers granted by the States, the restrictions to the power of the general government, the debate or the approval. It could not, as it did not exist prior to ratification by the States.
The 13 States created the general government, which is the creature designed by the States in the Constitution. As the creature, it does not have the authority to alter the rules and guidelines approved by its creators. It only has the power to do those things written in the Constitution, no more.
Who defines the limits on governmental power?
Along this same line, the creature does not have the authority to define the rules under which it operates. Only the parties to the formation of the government have that power. This is the reason that the government cannot add or alter amendments to the Constitution on its own. A proposed amendment is submitted to the various States for their approval. If the States reject a proposed amendment, there is nothing the government can do about it. The States retained the authority over defining the power of the general government. They approved a Federal Government to operate on their behalf in areas of granted authority, only.
This understanding, where the States decided the power and authority of the general government, sheds light on a decision where the Supreme Court decided that they are the final authority as to what is and is not constitutional and what the powers or limits on power are as relates to itself and the other two branches of government. What is wrong with this declaration of final authority? The States did not produce or approve a document which would establish a government which would then set its own boundaries and dominate over them in any and all areas which the government chooses. The Supreme Court is legally bound by the restrictions, set forth in the Constitution, as to what power it has and the limits beyond which it is not allowed to expand. It does not have the authority to expand its own power.
In order to make this perfectly clear, the 10th Amendment was added to the Constitution. It states: “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 wording in the Constitution, as ratified, made this clear; but the States wanted it to be stated in writing so there would be no confusion as to the restrictions on the general government’s power.
Notice that our country is called the United States of America. There is a reason for the use of the word “United”. We did not form a country where the States lost their independence or sovereignty. We created a government to do only the things which would be done better as a whole and not as 13 individual states.
We delegated only “few and defined” powers to the federal government. These are the “enumerated powers” listed in the Constitution. These enumerated powers concern:
- Military defense, international commerce & relations;
- Control of immigration and naturalization of new citizens;
- Creation of a uniform commercial system:Weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
- With some of the Amendments, protect certain civil rights and voting rights (for blacks, women, citizens who don’t pay taxes, and citizens 18 years and older).
It is only with respect to the “enumerated powers” that the federal government has lawful authority over the Country at large!!! All other powers are “reserved to the several States” and The People.
Why do we have the Bill of Rights?
Not only did the States want the 10th Amendment to be put in writing but they had several other issues they wanted to be in print, also. This was intended to make it very clear to the new government that they were not to withhold or restrict the rights of the people or the authority of the States. Almost immediately, the States ratified the Bill of Rights, which includes the first ten amendments.
“The Bill of Rights” is somewhat misleading for a name or title to these amendments. It has the implication that these amendments granted or are the source of these rights mentioned within the amendments. These amendments do not grant any rights to the people. What they do is prohibit the government from messing with these rights.
If we did not gain these rights from the Bill of Rights, the Constitution, or the Federal Government; where did the people get their rights? When did the people gain their rights? The answer lies in the understanding proclaimed in the Declaration of Independence, which states:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”
Did you catch that? Our rights come from God. They predate the government and the Constitution. They existed prior to the Declaration of Independence. The Bill of Rights was added to restrict government. Examples are found in the first amendment, “Congress shall make no law…” and in the second, “...shall not be infringed.”
Can the Federal Government restrict our rights?
Since the people did not receive their rights from the government, the government has no right to take them away or restrict them. Notice also, in the above quote, one of the reasons the States formed the general government was “to secure these rights”. Secure them, not attempt to restrict them on every turn.
The Federal Government has no Constitutional authority to limit our rights in any fashion. The Supreme Court does not have the authority to define, for us, what our rights are and are not. We The People, through our States, created the Federal Government and it was not so that they would grow and dominate us in all things whatsoever.
The Constitution established a government to serve the States and the people. They work for us, not the other way around. The ultimate political authority in our system is us, WE THE PEOPLE ‚Äì we are the “pure original fountain of all legitimate political authority” (Federalist No. 22, last para).
What is the remedy for usurpation of power by the Federal Government?
The Framers of the Constitution were very clear as to what should be done when the Federal Government overstepped its lawful authority. This situation was answered in the Federalist papers, which is a collection of articles written by some of the same men who helped write the Constitution and were there for the debates. They were offering explanations for the various questions and concerns presented during the ratification process.
If a new law was passed, which was a bad law, but dealt with an issue under which the Federal Government did have authority to operate; the remedy was through the courts (as the Supreme Court was given the authority to deal with issues under the Constitution). If not solved that way, the remedy was for the people to vote in new people who would correct the injustice previously done.
If either the President or members of the Supreme Court were responsible for acts which violated the restrictions placed on them by the Constitution, it is the responsibility of the Congress to impeach the offending parties and remove them from office or the Court. (You may be thinking that justices on the Supreme Court are appointed for life terms. But, you would be in error. The Constitution states that they are appointed for a term where they exhibit “good behavior”. Violating the Constitution is not good behavior and if they have done so, they should be impeached.)
If a new law was passed, but was outside the legal authority of the Constitution, this was considered to be usurpation by the Federal Government. Per the Founders, any such law was to be treated as no law whatsoever. The Government does not have legal authority to make laws which are in areas reserved to the States or the people by the Constitution. When they do so, the law is invalid. It is also usurpation for the Government to make laws restricting our rights.
The method to be used by the States to deal with usurpation, other than through elections, is nullification. This is a beautiful concept which is perfectly suited to be the remedy whereby the States protect and defend the People from tyranny and usurpation.
What is nullification?
Simply stated, nullification is the process whereby a State acts to formally nullify (invalidate) a Federal law, rule, executive order, or federal court decision which that State believes to be unconstitutional. This is the tool States are to use to keep the Federal Government from overstepping its authority and harming the People or the States in general. This is an act which works to “secure” our rights.
Some have argued that nullification is not a valid tool to be used by States. If not, then how are States to deal with a general government which has over-reached and has imposed tyrannical laws on the people?
Remember, it is the States that created the Federal Government and it is the States that have the authority to rein this government in to its proper realm of operation. Without the weapon of nullification, States would be helpless to control the monster they created.