Thomas Jefferson and James Madison warned us that if the federal government were ever to become the sole and exclusive arbiter of the extent of its own powers, those powers would always grow, regardless of separations of power, protests, lawsuits, elections, or any other vaunted part of the American system.
The above was put out today by the Tenth Amendment Center http://www.tenthamendmentcenter.com/ .
The United States weren't brought into union as mere administrative entities of the federal government. The United States are STATES not PROVINCES.
"Checks and balances" don't merely designate different realms of authority for the three federal branches. The Constitution wasn't intended to be a suicide pact, hence checks and balances - as understood by the founders - included, 1.) jury nullification (of unjust laws, or good laws applied unjustly), 2.) state nullification (of federal laws which encroach on states' rights), and the ultimate check on federal power: 3.) secession.
Historically, secession was disallowed by force. But it was never adjudicated. Due process would've exposed the historical fact that states originally joined the union with the explicit understanding that they could leave. Therein was the reason Jefferson Davis was not tried for treason, despite the oft expressed desire of the Republicans to hang him as a traitor.
So, since no logical arguments (including Lincoln's specious ones) were available to forbid secession, the matter was settled with an ad baculum argument (appeal to force, a logical fallacy.)
Jury nullification is still available, technically, though in reality it's negated through abuse of the voir dire, and through judges' misleading instructions to jurors that they are forbidden to rule on the law.
The other check on federal power - state nullification of federal law - is trying to make a comeback. Arizona's defense of Obama's attack on its immigration law, and attempts by states to opt out of Obamacare, are examples.
Anything is possible, but it doesn't look good for the nullification cause, because we've become a nation of compliant collectivists, having been taught unconditional federal primacy by school and television.
I'll adopt a more optimistic view if the Senate Judiciary Committee asks Supreme Court nominee Elena Kagan some of the questions posited in George Will's latest column.
http://www.washingtonpost.com/wpdyn/content/article/2010/06/24/AR2010062403178.html
Such as:
Federalist 45, James Madison said: "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." What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?
Of course, no Democrat would ask such a question. But it'd likewise be a miracle for some patrician Republican to defend the Constitution with such a pertinent query.
I'd love to hear Kagan, Obama, or any Progressive, answer the above four questions. Assuming they'd be truthful, here's a hypothetical transcript:
SENATOR HATCH: In Federalist 45, James Madison said: "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."
Assuming you are familiar with the Federalist papers, and with Madison, can you tell me whether you agree with Madison's understanding of the Constitution?
MS. KAGAN: Yes, I do.
SENATOR HATCH: So, do I understand correctly that you do believe in the doctrine of enumerated powers?
MS. KAGAN: Yes, Senator Hatch, I affirm the doctrine of enumerated powers.
SENATOR HATCH: Does the doctrine of enumerated powers impose any limits on the federal government?
MS. KAGAN: Certainly.
SENATOR HATCH: Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?
MS. KAGAN: No, Senator, I couldn't comment on cases that might come before the court should I be confirmed.
SENATOR HATCH: So, you affirm that there are limits to federal power, and that Madison rightly said federal powers are few and defined, and yet you can't name even one thing that the federal government is forbidden to do by virtue of the enumerated powers doctrine?
MS. KAGAN: Each case is unique, and brings to bear circumstances unforeseen by the founders.
SENATOR HATCH: You claim to agree with Madison about enumerated powers, yet you seem to advocate a position of unlimited powers. Can you clarify?
MS. KAGAN: Well, Senator, it was Justice Hughes, a Republican, who said "we are under a Constitution, but the Constitution means whatever the Supreme Court says it means." I, like Justice Hughes believe the Constitution is to be interpreted according to evolving social realities.
SENATOR HATCH: So, you don't believe in enumerated powers, or in a broad range of powers left to state governments?
MS. KAGAN: Well, I do believe in enumerated powers, and in states' rights, but they are all subject to review as circumstances warrant.
SENATOR HATCH: The Constitution means whatever the court says it means?
MS. KAGAN: Precisely.
SENATOR HATCH: Have you considered that your view - which many would characterize as an activist view - makes a nullity of Article V of the Constitution?
MS. KAGAN: Respectfully, Senator, I vigorously disagree. The amendment process is still available to the Congress, the states, and the people.
SENATOR HATCH: Respectfully, Ms. Kagan, that's not the point. The founders bestowed finite powers on the federal government - you seem to recognize no limits on federal power. Those founders were remarkably prescient, I submit, yet humble enough to know that the Constitution needed flexibility for the unforseen future that their posterity would face. Accordingly, they included Article V, whereby the Constitution may be amended when compelling reasons exist to do so. Yet you, and others who dismiss original intent, amend the law of the land, de facto, by fiat.
I submit that you do not regard Madison as an authority on the document of which he was the principle architect.
Further, I am satisfied that you regard courts as masters, rather than servants, of the Constitution.
Accordingly, my solemn oath to defend the Constitution demands that I opposer your nomination.
