Federalism, The Cure

Notes and sources from our NullifyNow! Philadelphia breakout session titled:
Federalism, The Cure  |  March 31st, 2012
Click HERE for the video of the talk (h/t Mike & GraniteGrok)

Define Federalism

Here’s the definition that The Forgotten Men use:

  • Federalism is a system of governance in which 2 governments (in our case: Federal & State) have jurisdiction over the inhabitants of the respective geography.
    • What this means is the authority is essentially divided up

Importance of:
Separation of Powers
We’re all here…looking for real solutions

Jefferson wrote in the Kentucky Resolution of 1798 this prophetic sentence:

“In questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.

 

The separation of powers that federalism provides is a critical component of chaining down mischievous men!

That’s why 2 levels of authority we see as absolutely necessary…

Purpose

The purpose of the Constitution is:

To define and limit the authority of the Federal government.

Madison summarized this in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Who Ratified?

Article VII of the U.S. Constitution:

“The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.

In the journal of the convention, whose votes were recorded?

  • It was the States (not individual delegates) that cast the votes in the convention.
  • Each State specified what portion of its delegation needed to be present to act and cast the States’ vote.

 

Bill of Rights Applies To…?

Why would the States create an agent to limit the power of the States?

Obvious conclusion:

The States did no such a thing!

Let’s read the beginning of the almost-forgotten Preamble to the Bill of Rights:

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

The BoR was drafted to further clarify limitations on the Federal government, not the State governments.

Supremacy

Article VI (Section 2) specifies that the authority delegated to the Federal government is supreme:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

But while the U.S. Constitution and laws made in pursuance thereof are the supreme law of the land, this is entirely different than the Federal government being supreme in everything it does.

 

Train off the Tracks

 Two schools of thought –

  • Jefferson Liberty – Left the station on a good clip
  • Lincoln Nationalism – BAM! The rails come apart!

Major milestone: 14th Amendment / Incorporation Doctrine

Nails in the coffin of Federalism: 16th and  17th Amendments

Federalism

On the show, we talk about federalism from an angle most don’t. We frame federalism as a MORALLY SUPERIOR form of government. And this “morality” we speak of can be summed up in three words…free to choose.

  • Are we free to choose how and where we travel?
  • Are we free to communicate without fear that the government is listening in?
  • Are States free to just throw down and start drilling in their State if they have oil?
  • Soon, will we be free to choose NOT to buy health insurance?
  • And the list goes on and on

So, if we define the morality of federalism by 3 small words…free to choose…do we really think we have a federal government that supports federalism?

As discussed earlier, federalism recognizes two authorities. Let’s take it a step further…in minds the Founders, Framers and Ratifiers idea (the majority of them anyway), these two authorities were to be restrained by a written Constitution.

  • Does anyone here believe the Constitution actually restrains the national government in DC?
  • Do the Lords of the Potomac pay ANY attention to the 9th and 10th Amendment?

So our job this afternoon is to make as compelling case as we possibly can that the TIME IS NOW for change. Why? Because if we lose liberty here…where else do we go to start over?

 

The 10th Amendment

Jefferson considered the 10th Amendment the “foundation” of the Constitution

“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“

States were terrified of a central government usurping undelegated power and upsetting the proper balance of power.

In fact, many states ratification was contingent upon amendments being passed, including what became the 10th Amendment

Summary: The federal government’s authority was limited to the powers enumerated within the U.S. Constitution

 

The Ultimate Check

The ultimate check on Federal power by a State can be uncovered with a quick read of the State ratifying resolutions (e.g. Virginia, New York, Rhode Island).

These resolutions illustrate the fundamental right of rescission (i.e.  powers delegated to the Federal government can be reassumed).

Take New York for example:

That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same…”

 

Wrap-up

Let’s review:

  1. Federalism = 2 gov’ts that have jurisdiction over their inhabitants (w/ a separation of powers)
  2. The U.S. Constitution is a compact between the States.
  3. The limited authority delegated to the Federal government is enumerated in the U.S. Constitution.
  4. The States created the Federal government to be an agent of the States to carry out limited powers.
  5. The States have the legal authority to reassume powers delegated to the Federal government.

 

Federalism is what? …THE CURE!

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Joshua Lyons

Co-Host/Producer at The Forgotten Men Radio Show
Joshua is the co-host of The Forgotten Men radio show, which airs Saturdays at 12 noon ET on AM930 WFMD. The Forgotten Men focus on the current political and economic challenges through the lens of the Constitution and federalism.
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