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Saturday, July 28, 2012

Thoughts On Nullification and a Proposal for a National Superior Court to Decide On Contests Between the States and the Federal Government

As of late, I’ve been reading up on the principle of “nullification,” reading Tom Wood’s book “Nullification: How to Resist Federal Tyranny in the 21st Century,” as well as St. George Tucker’s “View of the Constitution of the United States.”  Within these writings about nullification, there are several beliefs I feel need to be addressed.  One of these beliefs is that that the states, being sovereign, were members of the federal compact, and that they created the Constitution and thus the federal government.  Thus, being the creators, they have the right and authority to decide on the meaning of the Constitution and to decide whether federal laws or actions go beyond the limited powers given to the federal government by the Constitution.  Also, nullificationists,of then and now, address the issue of having the federal government being its own judge, through the federal courts, of its own powers.  And finally, nullificationists don’t believe the federal courts have the authority to oversee the state courts and nullify state court rulings.

I will briefly address first the issue of state sovereignty and the idea that the states were members of the federal compact and the creators of the Constitution.  First and foremost, it was believed then, as it is now, that the people of the United States, or the people of the various states and territories that make up the United States, as well as the various localities, cities, towns, and counties that make up the states and territories themselves; these people are sovereign, all power extending from them.  Thus, if the people are sovereign, the states cannot be sovereign as well.   Rather, all sovereign power stemming from the people of the nation, the people have given up some of their sovereign power and delegated or loaned it, temporarily, to the different governments of the cities, towns, counties, states, territories and the federal government of the United States.   Thus, the people delegating some of their sovereign power to the different governments they reside under, the people themselves are the members of whatever governmental compact they form, be that on the town and city level, the county level, the state level, or the federal level.  Thus, concerning the federal compact that created the Constitution and the resulting federal government, the people were the members of the compact and not the states.  This reality is also reiterated by the fact that the Constitution was created by a sovereign convention, represent on the state level, since no other level of representation made sense, and was ratified or approved by the people through their specially elected representatives in ratification conventions, again on the state level, since no other level of representation made sense.  Thus, the states are not and were never members of the federal compact.  The states did not give of their powers to the federal government.  Rather, the people, through their specially elected representatives in the Philadelphia Convention of 1787 and the subsequent ratification conventions took limited powers from the states, and gave those limited powers to the federal government, to handle national issues.  The people themselves were members of the federal compact, and not the states.  If the states had been members of the compact, the state legislatures would have sent delegates to Philadelphia Convention, and would have ratified the resulting Constitution instead of special conventions established for those sole purposes of creating and ratifying the Constitution.  The states are not sovereign and neither is the federal government, or any level of government for that matter.  Rather, the people are sovereign, and have delegated certain of their sovereign powers to the different governments they choose to live under, including those governments on the town, city, county and state or territory level, as well as on the federal level.  Thus, the states themselves merely retain sovereign powers delegated to them by the people through their own constitutions, just as the federal government, but are not sovereign themselves.  This is represented in the 10th Amendment to the Constitution, when it says that any powers not delegated to the federal government are retained by the states or the people themselves.  Such wording reiterates the concept of popular sovereignty, or the people being sovereign.

Secondly, I wish to address the issue of the federal courts being judges of the extent of their own delegated sovereign powers.   As much as I disagree with the nullificationists on some of their ideas, this is one of their objections to the federal system that I believe has some merit to it.  It is dangerous to give the federal courts, a branch of the federal government, the authority to judge the extent of the powers of the different branches of the federal government, including their own branch, in interpreting the Constitution.  They can easily grant themselves more powers, as they have done in the past and will unfortunately most likely continue to do in the future. The people must always be jealous of their liberty and rights and be suspicious of all government, no matter what level and no matter who they elect to power.  Such suspicion is not only necessary to retain our rights and liberty, but common sense as well.  Just because a government is democratically elected doesn’t mean it, through the actions of those elected, can’t and won’t oppress the people, or rather, that the people won’t oppress themselves or minorities through their democratically elected representatives.  Thus, constitutional limits are necessary to bind every government the people live under.  However, digressing slightly, the people, having created the federal Constitution and government, ought to be the rightful judge of the extent of its powers, and not the states, as the nullificationists claim.  The nullificationists claim that being members of the federal compact, they have the right to be the judge of the extent of the federal powers by deciding which of the federal laws or actions are unconstitutional. But, as I’ve already explained and proved in the preceding paragraph, the people, and not the states, were the members of the federal compact.  Thus, the power to judge the extent of powers of the federal and state governments should come from them.  I therefore propose a modification of the federal government and constitutional compact, by an amendment to the Constitution, that would create a truly independent and supreme judiciary, one that is ultra-federal, superior to the federal and state governments, that would have the authority of deciding contests between the states and the federal government and the extent of the powers of the federal government.  I would also propose such a judiciary be proposed for every state, to decide on the extent of the powers of each state, to be judges of the constitutions of each state.  To make this superior court truly representative of the sovereignty of the people, I propose that the members of the this judiciary be elected by conventions on the state level, every 6 years, so as not to make this judicial court subject to democratic ills and political pulls.  Such a superior court would fix the problem addressed by the nullificationists of having the federal government being its own judge in contests between the states and federal government in and the extent of its own powers.  This way, the states would no longer need to claim a chaotic right to be the judge in contests between the states and the federal government and in the extent of federal powers.  The federal government was erected for the purpose of being an arbiter of disputes between the states and to be supreme to the states, so as to correct some of the excesses of democracy and the resulting laws harmful to liberty and the rights of the people in the 1770s and 1780s.  James Madison, author of the 1798 Virginia Resolutions, and author of the Virginia Plan that would become the Constitution, after some modification, wanted the federal government to have an absolute veto power over state laws.  He saw the states as the main culprits in violating the liberty and rights of the people.  As historian Jack Rakove stated in his book “Original Meaning: Politics and Ideas in the Making of the Constitution,” “[i]n monarchical regimes the chief danger arose from the excesses of the crown, but in a republic that distinction necessarily fell to the legislature.  And for Madison, the state legislatures were the main oppressors of the people.  But Madison didn’t get his absolute veto power over all state laws in the federal government.  Instead, that power was given to the federal courts, or the federal judiciary, to keep the states in check, to keep the states from interfering with the federal government and its duly delegated powers.  Or in other words, the power to keep the federal government supreme and from preventing the states from overcome the federal government and trample on its own sovereign powers was given to the judiciary.  The judiciary had the power to keep the federal government supreme.  To read more about this, check out Jack Rakove’s “Original Meaning,” from page 171-177.  But, I believe Madison and the rest of the Framers were somewhat foolish to suspect that the federal government would never act as the states did, in absorbing all power into its legislative branch by usurpations, oppressing the people by these usurpations and oppressive laws, and in the federal courts giving a complete pass to the federal legislature in its usurpations, absorption of powers it was not delegated, and enacting of oppressive laws that violate rights of the people.    Thus, nullificationists’s issue with the federal government being a judge in its own case of contests between the states and the federal government is justified, in that the federal government, given the Supremacy Clause, and the power of the Supreme Court to interpret the Constitution, can easily overcome the states and absorb all power, despite the enumeration of its powers in the Constitution and the 10th Amendment.  And this has indeed happened.  But to the have the states be their own judge in contests between themselves and the federal government, concerning the extent of federal power, brings about the same problem.  The states having the authority to be their own judge in their own case means that they states could easily overpower the federal government, thus thwarting the Constitution and reverting all power back to the states, something which the Constitution was designed so as to avoid.  No person or group should be a judge in his or her own case.  Therefore, an intermediary branch of government, neither federal nor state, but one that is superior to both the federal and the state governments, that represents the sovereignty of the people, must be created so that the rightful judge of contests between the states and the federal government, the people, can be the judge in such cases concerning which power lay in which level of government.  And to have this judiciary be truly independent and truly representative of the people, its members must be elected by conventions of the people, on the state level, and it must be neither part of the state governments nor the federal government, but must be supreme to both of them.

Government is government, no matter what its level, local, state or federal, and every government made of fallible men and women seeks to extend its powers beyond its constitutional chains.  Government is condoned by God for the use by man, but mankind being imperfect and having the natural tendency to exercise unrighteous dominion over their fellow man when given a little power by their fellow man, these imperfect men forming government, government naturally always becomes a black hole, absorbing as much power as it can beyond its constitutional limits, no matter what level of government it may be.  Thus, having a continual power grab between the states and federal government, and having the states and the federal government claiming to be judges in its own case in a contest between the states and the federal government, it’s better to have a truly independent judiciary that is representative of the sovereignty of the people to be the judge between contests between the states and the federal government over power, as to whether that power belongs to the federal government or to the states.  Thus, the state governments will always seek more power than they constitutionally have, chained down and limited as they are by their state constitutions and by the federal Constitution, and forcefully heave themselves beyond their constitutional bounds to oppress the people, just as the federal government will do the same.  Trust no government with absolute power; but also trust no government to stay within the bounds of its limited powers, declared by mere parchment barriers.

This is my suggestion to fix the on-going war between the states and the federal government over power.  This is the true “rightful remedy,” not nullification as Jefferson demanded.  And if the people do not like what this super-judiciary rules concerning the meanings of the Constitution and extent of the federal government’s power, the rulings of this court can be overruled by means of a Constitutional amendment, or the amendment process.