Written by Ronald R. Cherry, MD
There has been much talk and much written over the last few years regarding the expansion of Federal Government outside the bounds of our Constitution. Many Americans are rightly worried that our Federal Government, like the Oligarchy of King George III, is becoming too powerful, having escaped the Constitutional firewall which was intended to limit its power. Many Americans see evidence that our excessively powerful (and thereby un-Constitutional) Federal Government has created laws which are destructive of the people’s unalienable God-given rights to liberty and fruit of labor in pursuit of happiness. Some of our Founding Fathers, like Thomas Jefferson and James Madison, advocated State nullification and/or State-controlled amendment under Article V as necessary means for “We the People” to thwart un-Constitutional Federal Government; others believe that the electoral process can eventually bring out-of-control Federal Government to heel. I believe all of the above should be on the table and therefore discussed and written about. Let’s start with the amendment process:
“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states…” Article V, U.S. Constitution
Article V is an Amendment Convention, not a General Constitutional Convention. The Amendment Convention under Article V does not require a central meeting place – the process may occur in a distributed fashion centered on the various State Legislatures. If the States decide to have a central meeting place it would not have to be in Washington, D.C. – it could be in Oklahoma City. Under Article V there is no role for the U.S. Congress other than “on the application of the legislatures of two thirds of the several states, [Congress] shall call a convention for proposing amendments…” That is it for Congress – they are simply required to “call a convention” but no more. No Congressman or Senator need be invited to the proceedings - nor the President or Supreme Court – because the Several States are, as James Madison states below, “the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities.”
In addition to an Article V Constitutional Amendment, multiple States acting in concert have the power to nullify un-Constitutional Federal Law (but not Federal law which is in compliance with the Constitution). James Madison – Father of the American Constitution – explicitly expressed the supremacy of the States over Federal Government when the latter acts un-Constitutionally – a situation where States become duty bound to either amend or nullify in defense of our Constitution.
“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact [U.S. Constitution], to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil… the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid [Alien and Sedition Acts], are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.”.” James Madison – 1798 Virginia Resolution
“The course & scope of the reasoning [1798 Virginia Resolution] requires that by the rightful authority to interpose in the cases & for the purposes referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constitution., the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities [Congress and President]. The resolution derives the asserted right of interposition for arresting the progress of usurpations by the Federal Government from the fact that its powers were limited to the grant made by the States [Constitution]… The mode of their interposition, in extraordinary cases, is left by the Resolution to the parties [States] themselves…in the event of usurpations of power not remediable under the forms and by the means provided by the Constitution [Article V Amendment]… It is sometimes asked in what mode the States could interpose in their collective character as parties to the Constitution against usurped power. It was not necessary for the object & reasoning of the resolutions & report that the mode should be pointed out. It was sufficient to shew that the authority to interpose existed, and was a resort beyond that of the Supreme Court of the U. S. or any authority derived from the Constitution [Congress and President].” James Madison – 1834 Notes on Nullification
Thomas Jefferson, like James Madison, reiterated the principle that the States were and are “the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities.”
“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes - delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force… that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers…” Thomas Jefferson – 1798 Kentucky Resolution
Some people object to States rights under the tenth amendment because it is seen as a threat to the supremacy of Federal Government over the States. The “supremacy clause” of our Constitution, found in Article 6 states:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
The key phrase “which shall be made in pursuance thereof” means that all Federal laws made in pursuance of and in compliance with the Constitution are superior to State laws. Federal laws not made in pursuance of and not in compliance with the Constitution – including those in violation of the tenth amendment - are null and void. Such Federal laws are un-Constitutional and therefore inferior to Constitution-compliant State laws. So, it is apparent from reading the Constitution that Federal Government is in fact supreme over the States in those powers delegated to it by the Constitution and in Federal Laws “which shall be made in pursuance thereof,” but inferior to the States in those powers not delegated to it by the Constitution and in Federal Laws which are not made in pursuance thereof.
It is clear from James Madison, Thomas Jefferson and the Constitution its self, that our Federal Government, including the President, Congress and the Supreme Court, is inferior to the State Legislatures when they act in concert – particularly when Federal Government acts un-Constitutionally. “The Several States” are the ultimate defenders of the U.S. Constitution because they were, and still are, the creators of the U.S. Constitution – just as parents while they still live are the creators and ultimate defenders of an offspring. State nullification of un-Constitutional Federal Law is tantamount to parental nullification of a wayward child who has written some new rules which are in conflict with the family’s original rules. To assert that the States cannot enforce the Constitution by nullification of un-Constitutional Federal Law - because the Constitution doesn’t have a section on nullification - boils down to the irrational idea that parents cannot enforce the original family rules by nullification of a wayward child’s dissonant new rules. It is just as self-evident, and also goes without saying, that States, as creator of the Constitution, can enforce the Constitution on an un-Constitutional Federal government.
It is clear from Article V that the States, acting in ¾ majority, have the power to amend our Constitution without permission of Federal Government – just as the States acted in concert at the 1787 Philadelphia Constitutional Convention to create our Constitution and Federal Government. “The Several States” not only possessed the power to create the Constitution, and now possess the power to amend our Constitution; the States have the power and are duty bound to nullify, within their respective borders, un-Constitutional Federal laws, un-Constitutional Executive branch regulations and un-Constitutional Supreme Court decisions. “The Several States” acting in concert are not only superior to un-Constitutional Federal Government via nullification; “The Several States” in ¾ majority are Supra-Constitutional via Article V amendment. Federal Government is the creature and is therefore inferior to its creator – the States. Like great planets of a revolutionary solar system, the weight of the States keeps the Federal Government in its proper place.