The power of III

Summum ius summa iniuria--More law, less justice

09 January 2011

Inexorable logic in defense of State's Rights, Original Intent of the Constitution

Under the pseudonym Locke, attributed to Judge Abel Upshur (the Judge Napolitano of his day (although there were many more like him then as now).  From "An Exposition on the Virginia Resolutions of 1798", written in February 1833, in the midst of the Nullification Crisis between South Carolina and President Andrew Jackson.

1. Is there, or is there not, any principle in the Constitution of the United States, by which the States may resist the usurpations of the Federal Government; or are such usurpations to be resisted only by revolution?

2. If there be no principle, is not the Federal Government as unlimited in its powers as any other Government as unlimited in its powers as any other Government whatever be its form, whose encroachments upon the rights of the citizen can be repelled only by rebellion, or other application of physical force?
If you believe, as I am sure you do believe, that there is such conservative principle in the Constitution, then I beg the favour of you to point it out, and tell us in what manner we may render it available. In doing this, be pleased to answer — 

3. Is not the passing a law by Congress which the Constitution does not authorise, a usurpation on the part of that body? And is not every such unconstitutional law absolutely void, as passed by a delegated authority, beyond the limits of that authority?

4. Are the States bound to submit to laws which are unconstitutional, and therefore void?

5. If the States are not so bound to submit, is not the particular State which refuses to submit, right in so doing?

6. If the recusant State be right in her refusal to submit, are not the other States wrong in compelling her to submit? Is it not oppression of the worst sort, to coerce obedience to usurped power?
The above questions are propounded upon the hypothesis that Congress may have actually passed a law palpably and dangerously violating the Constitution. And now be pleased to tell us in what manner the fact of such palpable and dangerous violation is to be ascertained? In doing this, be also pleased to answer — 

7. Is there any common umpire established by the Constitution; to whom may be referred questions touching a breach thereof?
If there be such common umpire, be pleased to point it out.

8. If there be no such common umpire, does it not result from the necessity of the case, that each State must judge thereof for itself?

9. If a State, in the actual exercise of this right, should decide that any given act of Congress is a palpable and dangerous violation of the Constitution, is there any right of appeal from the decision?

10. If there be, does the appeal lie to any other authority than the other parties to the Constitution?

11. Who are these "other parties?" The States, or the people?
Upon this last question, you are already so fully committed, that it is impossible to doubt your answer. I have, therefore, to ask you — 

12. Is not the decision of every inferior tribunal of competent jurisdiction, obligatory and conclusive, until it is reversed? And if so, is not the decision of a State upon a constitutional question on which it has a right to decide, conclusive as to such State, until it is reversed by the other States, acting as such?

13. If it be thus conclusive, has the State a right to act upon its decision or not?

14. If it has no such right of action, is its right of judgment any thing more than a mere liberty of speech and of opinion, and, therefore, no available right at all?

15. If it has such right of action, is it to act by submitting to the usurped power, or by opposing it?
A man of your spirit, can give but one answer to this question. Then be good enough to tell us in what manner this opposition is to be made? In doing this, be please to answer—

16. Are petition, remonstrance and protest, any thing more than appeals to the oppressor, and therefore in no sense, to be called opposition to him? Or if it be opposition, and these petitions, remonstrances and appeals, should all be disregarded, is the matter to rest there?

17. If not, and farther resistance is to be made, ought not that resistance to be made in such form as to redress the wrong?

18. If so, can the wrong be redressed by the injured State going out of the Union? Does not this, on the contrary, increase the wrong as to her, by compelling her to relinquish all the advantages of the Union, to which she is fairly entitled, and at the same time, encourage the aggressors to persevere in the wrong, by withdrawing all opposition to them? Is not the "redress," in this mode of seeking it, merely an additional wrong done to the injured party?

19. If so, what do you propose to substitute for it?

You might well ask why I continue to hash out "ancient history," dead and buried since the War for Southern Independence.  

1. Local governance allows communities to set the standards for the people in the communities.  Freedom of movement would have to be guaranteed, so that if a community's standards clash with a certain family or individual, that person or family can relocate to another location that is more congruent with their needs and lifestyle.  This accomodates socially liberal and socially conservative elements of the society.  Certain rights of all are guaranteed as inviolate by each and every community.  Morality cannot be dictated from a central power.  This is what is meant by separation of Church and State for modern America:  call it organized religion of a recognized church, call it humanism, or atheism, or ethical society.  

Can we not all agree that imposition of one belief system on everyone by a vote of 5-4 politically appointed Supreme Court justices is anathema?  The belief system of a liberal 5-4 vote is reversed by the belief system of a conservative court in one year or one generation.  First, conservatives feel compromised and put upon, then liberals. 

If we are all to benefit from a union of states for common defense and mutually beneficial economics, there is no other way but to loosen the hold of a central government.  The tighter the control, the more people try to wriggle free of the tight grasp of government.  This, I might argue, is human nature.  It is at least the nature of Americans.  From Scotch Irish and English immigrants of the 1600's to Hmong refugees, most people want to come here to be free.  That means to be left alone by government.

2. A renewed Bill of Rights would put limitations on all forms of government at every level.   This was the hope of the founders, and that hope has been betrayed.

3.  More personal responsibility is placed on the individual.  No more nanny state.  This may mean the less competent or individuals lacking in luck or providence may fail.  But more competent, lucky, and blessed individuals will succeed.  Our country would then have a chance to return to production of wealth. This was how our country prospered originally.  

Understanding economics has driven me to understand and embrace these political views.


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