By Dr. Harold Pease
Finally the 10th Amendment is beginning to be used by states to prevent the Federal Government’s overreach of Constitutional powers. It reads, “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.”
Last I heard 26 states were showing their resistance to Obamacare by opting out of exchanges. Nine State Sheriffs’ Associations have put the Executive and Legislative Branches on notice that they will support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs have inferred that they will protect their people on this issue—even against federal agents coming into their counties. Federal marijuana laws are openly defied by some states. States’ refusal to implement the Real ID Act, passed in 2005, is a form of resistance. Even Governor Jerry Brown on federal mandated prison requirements, earlier this year, suggested that the Federal Government back off, “We can handle our own prisons.” When enough states say no, the feds will back away.
Unconstitutional overreach is epidemic and there is now measurable push-back. The “check and balance” part of the Constitution is the 10th Amendment of the Constitution and the Doctrine of Nullification. States do have the authority to “Just Say No!” but to be effective they need to do so collectively, the larger the group the more effective. We have previously covered its use in 1798 and 1832. We have treated Thomas Jefferson and James Madison, Fathers of the Declaration of Independence and the Constitution, on the subject. This column restricts itself to arguments made in support of this doctrine by Alexander Hamilton traditionally seen as an advocate of a strong federal government and thus the “father” of American liberalism. All emphasis in his quotes is his own. Today proponents of big government incorrectly believe that every law, executive order, or judicial decision is constitutional.
He wrote, “If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed…. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union… EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION” (The Federalist Papers, Hamilton, Madison, Jay, The New American Library, 1961, No 33, pages 204-205).
Thus the door which the less informed propose, that they can enforce any law that is passed by the federal government because of what is called the supremacy clause (“The Constitution, and the laws of the United States which shall be made in pursuance thereof; …shall be the supreme law of the land”), is closed. Those laws “not pursuant” to actual constitutional power are invasions of authority, even usurpations, and should “be treated as such.” So, the Constitution remains the supreme law of the land only so long as it remains restricted to original grants of power.
In fact, so strongly was it believed that the Federal Government not depart from original grants of power in the Constitution all federal authorities were required to swear by oath that they would abide by this understanding. Hamilton wrote, “It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS” (The Federalist Papers, No. 27, p. 177). Once again, original intent is the only constitutional interpretation permitted. Notice that the Supreme Court is not excluded from “the enumerated and legitimate objects of its jurisdiction” anything else are invasions of authority.
Every act outside of enumerated authority is contrary to the Constitution and thus is void. Hamilton continues, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm … that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid” (The Federalist, No. 78, p. 467).
So, what should happen when the Federal Government overreaches its enumerated powers? Hamilton answers this question also. “The Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents” (The Federalist, No. 78). Simply, states should use the Doctrine of Nullification—“It ain’t happening here.”
The states are the guardians of this principle Hamilton explains because they “will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent” (The Federalist, No. 26, p. 172).
There exists no argument for any other interpretation other than original intent in The Federalist Papers. Once again we have focused upon Alexander Hamilton because he is traditionally seen as an advocate of a strong federal government and thus the “father” of American liberalism. In a free society it is healthy to see the states exercising their united right to nullify; may they do so frequently. On following the Constitution all should be united.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.