The power of III

Summum ius summa iniuria--More law, less justice

21 December 2010

Original Intent: Do the States or the Federal Government have ultimate authority?

In a book entitled A Brief Enquiry into the Nature of the Federal Government, written in 1840, Abel P. Upshur, a lawyer, judge, Virginia state politician, (who would become the 15th Secretary of State under Tyler, be one of the primary movers in bringing Texas into the Union, and 13th Secretary of the Navy), refutes the National Theory of the nature of the Federal government, as expounded by Daniel Webster and Joseph Story, who claimed that the Federal government was created as a national entity by a unified single people, not as an agent for the States and the people.

(Boldface statements below reflect my comments on the preceding sentence(s)):


The Federal Government is the creature of the States.

Creature = Creation...Thirteen independent Sovereign states, through State Ratifying conventions, each independently voted to create the Federal government with the Constitution.  Historical fact.  There was no national referendum.

It is not a party to the Constitution, but the result of it the creation of that agreement which was made by the States as parties.

Each of the ratifying States was a party to a contract/compact/agreement that we call the Constitution.  The States and the people existed before the Federal government.  The Federal government was not a party to its own creation.

It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution.

The thirteen original States made a new thing, the Federal government, to act as their agent, and delegated to it very specific tasks/powers.  Specifically, the numbered, listed, limited powers of Article I Section 8 of the Constitution.

Shall the agent be permitted to judge the extent of its own powers, without reference to his constituent?

That is:  Can the Federal government (logically) be the decider of just how much power it has?  No!  It could not be limited in its power.    Madison, Jefferson and others of their generation, federalists and anti-federalists, knew that each State had to independently decide if a law passed by Congress (i.e. Federal legislators), or decided at the level of the Supreme Court (i.e. Federal judiciary) or order at the Presidential/Cabinet level (i.e. Federal executive) conformed to the State's interpretation of the Constitution.  This was expounded in the Virginia and Kentucky Resolutions of 1798.  This concept was invoked by northern and southern states before and after the War for Southern Independence, and is a resurgent concept today.

A State was a party to the compact known as the Constitution;  the federal agency was not.  Each State was equal in legal stature to each other State.  No one state could decide whether a law was Constitutional for another State;  each retained it's Sovereignty by the Tenth Amendment.  The Federal Supremacy clause in the Constitution could only logically apply to Constitutional Laws related to the Enumerated Powers of Article I Section 8.  Any question of constitutionality was therefore decided by a State legislature or judiciary, not by the Federal government.

To a certain extent, he is compelled to do this, in the very act of exercising them, but always in subordination to the authority by whom his powers were conferred.

The Federal government has to make its laws within the confines of its delegated powers.  Only in this can the Federal government stay within it's delegated mandate from the States which created it.

If this were not so, the result would be, that the agent would possess every power which the agent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason.

If the Federal executive, judiciary, or legislature could decide what it's own limits were, what would you get?  A gigantic central power that continually grows in leaps and bounds outside its original intent.  

You get the monstrosity that we have today.  You have a government teetering on the brink of a totalitarian shift.  We are the frog put in the pot when the water was lukewarm, but now it is approaching a boiling point.  The people are starting to get uncomfortable...

 If such a rule would prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people.

Kinda like what we got now???

If then the Federal Government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so? Nay. It is said that this department may not only judge for itself, but for the other departments also.
This is an absurdity as pernicious as it is gross and palpable.

Isn't it though?  Judge Upshur saw our future from 1840!  Imagine that!  Why do you think the court historians that glorify Supreme Federal power bury this viewpoint?  It completely undermines the federal stance about the extent of its own powers.

If the [Federal] judiciary may determine the powers of the Federal Government, it may pronounce them either less or more than they really are.

Try more, and more, and more, until you get the most nonsensical garbage, like invoking the Interstate Commerce clause to control what a farmer grows on his own land for his own personal consumption (Wickard vs. Filburn), or forcing (call it mandating if you want) you to buy health insurance, or controlling what you eat, or controlling a private business like GM, or propping up a private bank that deserved to fail, all with your money.  

A = A.  Tyranny plain and simple.  Cruel unjust use of power.

Etymology of Tyranny:
tyranny Look up tyranny at
late 14c., "cruel or unjust use of power," from O.Fr. tyrannie (13c.), from L.L. tyrannia "tyranny," from Gk. tyrannia "rule of a tyrant," from tyrannos "master


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