Many people are aware of how the states have given away through the amendment process their sovereignty well protected in the original Constitution. But what is not so well known is what has happened through the judiciary process. When the states ratified the Constitution it established a Supreme court and gave congress the ability to form lower courts. But it limited their judicial authority to issues involving the federal government and those between states or between citizens of more than one state. The judicial authority did not extend to individual states, their laws and constitutions.
States have given away through the amendment process their sovereignty
Many people are aware of how the states have given away through the amendment process their sovereignty well protected in the original Constitution. But what is not so well known is what has happened through the judiciary process. When the states ratified the Constitution it established a Supreme court and gave congress the ability to form lower courts. But it limited their judicial authority to issues involving the federal government and those between states or between citizens of more than one state. The judicial authority did not extend to individual states, their laws and constitutions.
The Constitution did not grant the power of judicial review to the courts, which is the authority to decide if laws passed by congress or actions taken by the executive branch were constitutional. But the courts took it anyway shortly after ratification in Marbury v Madison. This power was confined to deciding if Congress and the Executive branch were acting within the Constitution.
Today the power of judicial review has been extended to include federal judicial review of state laws and their constitutions. This is a result of the court's interpretation of the 14th Amendment ratified by the states in 1868 preventing states from repeating the injustices of slavery. The 14th amendment extends all rights, privileges, and immunities granted in the Constitution to all citizens in all states. Although judicial review is not granted, the courts claim that since they have judicial review of the supreme law of the land when applied to the federal government the extension to the states carries with it the same power over state laws and constitutions.
If there are limits to the Supreme Court's judicial power over the laws and constitutions of the states, the court doesn't seem to recognize them in COOPER v. AARON(1958) where the court explicitly lists powers they claim over the states.
Decisions by the Supreme Court are not the supreme law of the land, the Constitution is
One of the primary decisions of the court. "8. The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." P. 18." Notice that in the court's opinion the Constitution is no longer the supreme law of the land it is the courts interpretation of the Constitution that is the supreme law of the land and their interpretation overrides any thing in state constitutions or laws.
The court also decided in Arron that "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained." They are saying the judgments of the courts can not be nullified by any state authority even if states combine in their annulment.
Decisions by the Supreme Court are not the supreme law of the land, the Constitution is and the Constitution does not give the Supreme Court the power to deny a State the right to nullify an unconstitutional federal order and does not allow the court's interpretation of the Constitution to override all state laws and constitutions.
Most importantly, the Constitution is silent concerning the final authority to judge the constitutionality of laws. The founders believed judges certainly had the authority to interpret the constitutionality of laws but it was not the final authority. The founders reserved the right of having the final authority concerning the meaning of the Constitution to the states. James Madison explains in his Report on the Virginia Resolutions of 1800 in detail the relation between the states, the people, and the Supreme Court. Several paragraphs make his point very clear. One copy of this excellent discussion can be found here.
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The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.
The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another--by the judiciary as well as by the executive, or the legislature.
Madison goes on to say that if the states did not have this power then the three branches of the central government usurping important powers not granted "might subvert forever and beyond the possible reach of any rightful remedy the very Constitution which all were instituted to preserve". Madison apparently borrowed the term "rightful remedy" from Thomas Jefferson who, in his Kentucky Resolution, described nullification as the rightful remedy to unconstitutional federal acts.
The Supreme Court has overstated its judicial authority over the states but it remains for the states to claim their authority.
As the founders informed us, the states are the final authority concerning the meaning of the words in the Constitution they established. That authority then gives the states the right to preserve their Constitution if necessary by nullifying federal orders and laws they believe are unconstitutional as well as challenging unconstitutional decisions by the courts concerning state laws and their constitutions. There is no suggestion by the founders that states acting alone have this authority only that some form of collective action is required.
There are numerous examples in the Federalist Papers confirming that those that established the Constitution are its guardians and can alone declare its true meaning. For example, Federalist #16 by Hamilton "the people as the natural guardians of the Constitution". And #49 by Madison "the people themselves who as grantors of the commissions can alone declare its true meaning and enforce its observance".
The Supreme Court has overstated its judicial authority over the states but it remains for the states to claim their authority. Will the states, acting in concert, use their power in some future matter of extreme consequence or have they retreated so far from their heritage as independent nations that sovereignty and freedom are no longer considered worth fighting for?
Don Mellon wrote summaries for each of the 85 Federalist Papers for posting on the Texas-based website http://www.teaparty911.com. Mellon has edited and contributed many articles about the intent of the Founders in drafting the U.S. Constitution, noting how states have surrendered their powers granted by the Constitution. He is a Vietnam-era military veteran, and holds a PhD in Physics from Iowa State University. Now retired from Texas Instruments, he lives in East Texas.
Many people are aware of how the states have given away through the amendment process their sovereignty well protected in the original Constitution. But what is not so well known is what has happened through the judiciary process. When the states ratified the Constitution it established a Supreme court and gave congress the ability to form lower courts. But it limited their judicial authority to issues involving the federal government and those between states or between citizens of more than one state. The judicial authority did not extend to individual states, their laws and constitutions.
