WHY A FEDERAL
GOVERNMENT?
RIGHTS & AUTHORITY
By:
Mike Foil
The War for
Independence had just been won. Thirteen
sovereign States were operating under the Articles of Confederation, which had
already been shown to be inadequate. The
leaders called for a second constitutional convention to “fix” the Articles of
Confederation.
When these
men gathered in Philadelphia, in May of 1787, it did not take long to realize
that the Articles of Confederation did not need to be revised, but needed to be
replaced. During this convention, the
men produced a proposed Constitution for the United States of America.
First of all, what is the
Constitution?
The
delegates to the convention drew up an agreement; which, if ratified (agreed to
and adopted) by the States; would establish
a Federal Government. The Constitution
lays out the rules for the operation of such a government. That’s pretty much it. The various articles in the Constitution
detail what each of the three branches of government are permitted to do. We refer to the list of duties or powers of
the government as the enumerated powers.
In other words, this document established a new government for a few,
very specific purposes.
The
Constitution was submitted to the 13 states for debate and possible
ratification. Once approved (by at least
nine), a Federation would be formed including all States who ratified the
Constitution. Any State that did not
vote to ratify would not be a part of the Federation. Each State maintained the power to decide its
own direction as relates to this matter. Remember, the States are sovereign and
independent.
Why would independent and sovereign
States vote to form a general government, under a Constitution, which would
preside over a confederation of the States?
During the
few years that had passed, after declaring independence, it became clear that
the individual states could not do certain things separately, as well as a
general government could do on their behalf.
The States formed a confederation (alliance) whereby, jointly they would
be better able to perform certain aspects of running a country.
ALL other duties, aspects and powers of government; the
States and the people reserved to themselves.
Who were the parties to the
Constitution or the constitutional convention?
The parties
with the authority to call for a convention and to implement the Constitution,
which would establish the general government for the United States, were the 13
States and them alone. The Federal
Government was NOT a party to the
Constitution.
It is
important that we understand this issue.
The States, through ratification, agreed to the specific document that
listed the limited powers of the general government that they (the States) were establishing. The general government had no say in the
convention, the wording of the Constitution, the powers granted by the States,
the restrictions to the power of the general government, the debate or the
approval. It could not, as it did not
exist prior to ratification by the States.
The 13
States created the general
government, which is the creature designed by the States in the Constitution. As the creature, it does not have the
authority to alter the rules and guidelines approved by its creators. It only has the power to do those things
written in the Constitution, no more.
Who defines the limits on
governmental power?
Along this
same line, the creature does not have the authority to define the rules under
which it operates. Only the parties to
the formation of the government have that power. This is the reason that the government cannot
add or alter amendments to the Constitution on its own. A proposed amendment is submitted to the
various States for their approval. If
the States reject a proposed amendment, there is nothing the government can do
about it. The States retained the
authority over defining the power of the general government. They approved a Federal Government to operate
on their behalf in areas of granted authority, only.
This
understanding, where the States decided the power and authority of the general
government, sheds light on a decision where the Supreme Court decided that they
are the final authority as to what is and is not constitutional and what the
powers or limits on power are as relates to itself and the other two branches
of government. What is wrong with this declaration of final authority? The States did not produce or approve a
document which would establish a government which would then set its own
boundaries and dominate over them in any and all areas which the government
chooses. The Supreme Court is legally
bound by the restrictions, set forth in the Constitution, as to what power it
has and the limits beyond which it is not allowed to expand. It does
not have the authority to expand its own power.
In order to
make this perfectly clear, the 10th Amendment was added to the
Constitution. It states: “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.” The wording in the
Constitution, as ratified, made this clear; but the States wanted it to be
stated in writing so there would be no confusion as to the restrictions on the
general government’s power.
Notice that
our country is called the United States of America. There is a reason for the use of the word
“United”. We did not form a country
where the States lost their independence or sovereignty. We created a government to do only the things
which would be done better as a whole and not as 13 individual states.
We delegated
only “few and defined” powers to the federal government. These are the
“enumerated powers” listed in the Constitution. These enumerated
powers concern:
- Military defense, international commerce &
relations;
- Control of immigration and naturalization of new
citizens;
- Creation of a uniform commercial
system: Weights & measures, patents & copyrights, money based
on gold & silver, bankruptcy laws, mail delivery & some road
building; and
- With some of the Amendments, protect certain
civil rights and voting rights (for blacks, women, citizens who don’t pay
taxes, and citizens 18 years and older).
It is only
with respect to the “enumerated powers” that the federal government has lawful
authority over the Country at large!!! All other powers are “reserved
to the several States” and The People.
Why do we have the Bill of Rights?
Not only did
the States want the 10th Amendment to be put in writing but they had
several other issues they wanted to be in print, also. This was intended to make it very clear to
the new government that they were not to withhold or restrict the rights of the
people or the authority of the States. Almost
immediately, the States ratified the Bill of Rights, which includes the first
ten amendments.
“The Bill of
Rights” is somewhat misleading for a name or title to these amendments. It has the implication that these amendments
granted or are the source of these rights mentioned within the amendments. These amendments do not grant any rights to
the people. What they do is prohibit the
government from messing with these rights.
If we did not gain these rights from
the Bill of Rights, the Constitution, or the Federal Government; where did the
people get their rights? When did the
people gain their rights? The answer lies in the
understanding proclaimed in the Declaration of Independence, which states:
“We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness.--That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed…”
Did you
catch that? Our rights come from
God. They predate the government and the
Constitution. They existed prior to the
Declaration of Independence. The Bill of
Rights was added to restrict government. Examples are found in the first
amendment, “Congress shall make no law…” and in the second, “…shall not be
infringed.”
Can the Federal Government restrict
our rights?
Since the
people did not receive their rights from the government, the government has no
right to take them away or restrict them.
Notice also, in the above quote, one of the reasons the States formed
the general government was “to secure these rights”. Secure
them, not attempt to restrict them on every turn.
The Federal
Government has no Constitutional authority to limit our rights in any
fashion. The Supreme Court does not have
the authority to define, for us, what our rights are and are not. We The People, through our States, created
the Federal Government and it was not so that they would grow and dominate us
in all things whatsoever.
The
Constitution established a government to serve the States and the people. They work for us, not the other way
around. The ultimate political authority
in our system is us, WE THE PEOPLE – we are the “pure original fountain of all
legitimate political authority” (Federalist No. 22, last para).
What is the remedy for usurpation of
power by the Federal Government?
The Framers
of the Constitution were very clear as to what should be done when the Federal
Government overstepped its lawful authority.
This situation was answered in the Federalist papers, which is a
collection of articles written by some of the same men who helped write the
Constitution and were there for the debates.
They were offering explanations for the various questions and concerns
presented during the ratification process.
If a new law
was passed, which was a bad law, but dealt with an issue under which the
Federal Government did have authority to operate; the remedy was through the
courts (as the Supreme Court was given the authority to deal with issues under
the Constitution). If not solved that
way, the remedy was for the people to vote in new people who would correct the
injustice previously done.
If either
the President or members of the Supreme Court were responsible for acts which
violated the restrictions placed on them by the Constitution, it is the
responsibility of the Congress to impeach the offending parties and remove them
from office or the Court. (You may be thinking
that justices on the Supreme Court are appointed for life terms. But, you would be in error. The Constitution states that they are
appointed for a term where they exhibit “good behavior”. Violating the Constitution is not good
behavior and if they have done so, they should be impeached.)
If a new law
was passed, but was outside the legal authority of the Constitution, this was
considered to be usurpation by the Federal Government. Per the Founders, any such law was to be
treated as no law whatsoever. The
Government does not have legal authority to make laws which are in areas
reserved to the States or the people by the Constitution. When they do so, the law is invalid. It is also usurpation for the Government to
make laws restricting our rights.
The method
to be used by the States to deal with usurpation, other than through elections,
is nullification. This is a beautiful
concept which is perfectly suited to be the remedy whereby the States protect
and defend the People from tyranny and usurpation.
What is nullification?
Simply
stated, nullification is the process whereby a State acts to formally nullify
(invalidate) a Federal law, rule, executive order, or federal court decision
which that State believes to be unconstitutional. This is the tool States are to use to keep
the Federal Government from overstepping its authority and harming the People
or the States in general. This is an act
which works to “secure” our rights.
Some have
argued that nullification is not a valid tool to be used by States. If not, then how are States to deal with a
general government which has over-reached and has imposed tyrannical laws on
the people?
Remember, it
is the States that created the Federal Government and it is the States that
have the authority to rein this government in to its proper realm of
operation. Without the weapon of nullification,
States would be helpless to control the monster they created.
For a more
detailed explanation of the above issues, visit the blog by Publius Huldah at:
http://publiushuldah.wordpress.com/
In her
articles is a wealth of information and an education on the Constitution.