The fact is, this movement is gaining ground more every day. Do not be discouraged or pessimistic concerning the appearance of losing ground. Most of what is going on in this regard is done without our recognition. But know that it is in fact taking place.

Thank you for your extended answer!

I know many states are passing 10th amendment resolutions, and I know in some cases “Federal” legislation (e.g., National ID Card) has been rejected by legislation in some states.

Since it is the states that gave us our Federal system of government, how do we get the states to formally recognize their role in rejecting unconstitutional legislation? (There is so much to be undone!)

It seems that what the states are beginning to do individually needs to be formalized somehow. Who will be that national leader or organization that brings this about? There are many organizations that speak in defense of the Constitution, and there are many movements that object to the direction in which our country is headed (e.g., the Tea Party movement), but until there is a concerted national effort to bring focus to all these disparate but worthy efforts, I don’t think much will happen.

The draft and ratification of the US Constitution confirms that the union was made up of states, with concurrent power to carry out its sovereign powers through its constitution. There was an admitted possible conflict between state and federal. The federal supreme court no more had the power to define lines of sovereignty than did the state courts. To allow them this power would create a national form of government, which would render states subservient to only ONE part of the federal government. This cannot be possible, despite Marshall and subsequent court’s OPINION.

Thus, “who is to decide?” or “who is the final arbiter?” The answer is quite simple: those sovereigns who have the power to make and unmake constitutions: the people/bodies-politic in the states. Each state body-politic is decide whether its state or its federal agent is complying with the constitution. This was confirmed in the federalist papers–those nationalists even who did not prefer a federal form over national form, yet they still confirm this fact.

To say that “there has to be a final arbiter” is true, but that final arbiter is NOT in a federal court. It is those who have the power to make and unmake constitutions. This is one of the “experiments in freedom” of the US. How would the US be any different than Europe (which we seceded from) where the power to force states to comply existed in the federal courts? This would be WORSE than the Great Britain model, whereby only (arguably) Parliament had that power (the argument was, “representation equals sovereignty equals power.” But at least the people had representatives to voice their constituent’s position on the matter. The supposed US S CT as final arbiter is more dangerous than what we seceded from in 1776.

How ignorant we have become of the principles which caused our declaration of independence!

In my other readings, I have come across this same thought, and I agree with its sentiment. What I have also come to understand is that the Marshall Court in Marbury v. Madison assumed this power for itself.

If the power to interpret the Constitution was not explicitly granted to any body, who should be given the power to interpret the Constitution?

France has a Constitutional Council, which is given the power to determine the constitutionality of legislation. In principle, this seems to be a possible answer to the question, although how we would implement such a council in the United States would certainly differ in many details.

We have relied upon John Marshall’s early miscontructions of the Constitution, who, in turn, largely relied upon Alexander Hamilton’s miscontruction in his Report on the Manufactures of the United States, in 1791, three years after the Constitution was submitted to the states for ratification. Madison, by contrast, wrote his assurances BEFORE ratification. if Hamilton were to be credible, he should have made his position known BEFORE ratification. I am certain, if Hamilton had been intellectually honest before ratification, the Southern States surely would not have ratified the Constitution. The Southern States relied on Madison. Therefore, Madison’s assurances should be binding on Congress, the President, and the Supreme Court. The constititution is, after all, a cotnract, and as we know in contract law, we look to the representations of those who drafted the contract to discern its meaning. Madison played the single largest role in drafting the document. The the extent it limits the power of the government it definees, it should be construed in favor of the citizens and against the government. Madison should be taken at his word.

John Marshall was an intellectual lightweight and was clearly not as well schooled in the principles of government as was Madison. His decision in McCulloch v. Maryland was a restatement of Hamilton’s argument. Chief Justice Robert Story repeated the Hamiltonian View in his constitutional treatise in the 1830s, yet, when we examine Madison’s letters from the 1830s, it is clear that Madison never changed his view of a strict adherence to enumerated powers. Madison’s view largley held sway until FDR packed the court in the 1930s. Those decisions borrowed heavily from Hamilton and Story.

I agree with Mr. Baldwin that the meaning of the Constitution can be objectively determined by reading the text itself and reading eminent scholars like Madison who explained its meaning before it was ratified. It is perfectly appropriate for a modern day justice to declare that the line of cases that follow McCulloch v. Maryand are simply wrong.

After all, look what the Supreme Court recently did. It flat out reversed Bowers v. Hardwick, decided in the mid 1980s, in Lawrence v. Texas. That’s barely a 20 year turnaround. Yet, the same court won’t touch Roe v. Wade and its alleged penumbras emanating from the privacy guarantee in the 4th amendment.

Some will say that the passage of time, between McCulloch v. Maryland and the present makes that case more set in stone than Bowers v. Hardwick. We say we believe in stare decisis, but we also believe in judicial review. There does come a point when a court has to say, “we were wrong.”

This is particularly true when our Congressional representatives think they can do whatever they want to do, without limitation. Clearly there is something wrong, and our judges should be able to see it as we spiral down toward a totalitarian state.

There is clearly a strong intellecually defensible case for a doctrine of original intent to be applied to constitutional interpretation.

Clearly, the United States Government is in breach of contract and the as such the other parties (the people and the states) have no obligation to continue respecting their contractual obligations. More people than you might suspect believe that there is a case for treason to be made against the member of all three branches of the United States Government for violation of state soveriegnty and for perjury in advocating to change our form of government. However, we are without redress as the very court system in which we might seek strength is equally corrupt.

The education of the masses is not so weak, nor The Constitution so complicated that the truth of its meaning is difficult to ascertain. The opposite, Thank God, is actual case. Fortunately, the fact that the Colonies fought a war to obtain freedom is hard to hide, although it is given little (as little as possible) attention in schools. Interested parties have educated themselves and the revolt is growing Independent Candidates, Tea Party Movement, etc. It appears we are heading for a Revolution, much more than we are heading for a States’ Sovereignty Challenge. State Legislatures, are little more than extensions of the thinking that occurs in Washington, a few have joined 10th ammendement movements or 2nd ammendment movements but this is a very small weak response to the usurpations of the Federal Government.

I beleive that the US is headed for a Financial Crisis similar to that seen in second world countries, where crushing public debt and interest payments. If we just allow the Socialists to continue spending we may be forced to default on US Treasuries (90% of tax receipts are necessary just for Debt Service today, and Federal Spending is 75% more than tax receipts). Needless to say that these crisis have provided opportunities for both good and bad reform (normally bad). This, I think, is a much more likely path than the more educated peaceful one you propose. Jefferson, has given us the unfortunate, expensive and last word; “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
Perhaps the threat of a second American Revolution to Restore Constitutional Government will be enough, I doubt it.

Parting Shots:
The States and People have no obligation to respect unconstitutional legislation.
The States and People need a much stronger Veto over federal legislation.
The States and People need a much stronger Limitation over Judicial Injustice.

Keep up the good work, educating and informing; perhaps there is still some hope that we can avoid a revolution…

Ah, what the heck…

A simple reading of the constitution shows that federal judges hold office during good behavior. When was the last time Congress impeached a US S CT judge? They never do, because the entire federal system rides together on the same band-wagon. You misstate and misconstrue my position entirely. But thanks for stating the obvious.

Of course the states have a right to call a convention, if they so choose. Who is saying they don’t have that right!? You are apparently putting words in my mouth. Stating what can be and what should be are two different things. The states have a right to call a convention based upon the each states’ individual sovereign status under the Law of Nations. However, if a state chooses not to call or join a convention, but rather, chooses to exercise its own sovereignty based upon the constitution that was already ratified, then that state has the power and right to do so, regardless of what collective effort the other states deem appropriate. If the states have a collective right to call a convention, then an individual state has all the more right to protect freedom within its borders. Freedom is not created by a union. Whatever option you choose, each is based upon the sovereignty of the state and the people.

If you want to call a convention, Bill, go for it! I am not stopping you, nor am I discouraging your state from doing what it deems right and proper. The fact is, the demand that the states call a constitutional convention (or as some advocate, a Constitutional Congress as in 1776) has nothing to do with the states’ right to do what they have a right to do: individually resist federal tyranny. I guess you do not agree with our founders on that subject and insist that we rewrite our constitution and open it up for making it worse than it is today, as applied by the federal government.

The answer to his question is that right now the Constitution doesn’t say what he complains about and needs to. He complains about federal judges saying they are life time. He should read his Constitution more carefully. Judges are appointed for periods of good behavior not life.

He should study the proposed amendments by the states at http://www.foavc.org. Nearly 80 per cent of these relate to Supreme Court rulings not to mention the fact there are at least three different state plans to regulate and control the courts. Similar amendments would control the president and the national legislature.

Yet he says instead of using a peaceful process to bring about change we should plunge straight ahead into the potential of civil war.

Why not support the states right to a convention Mr. Baldwin and at least give them the chance to try a convention as they are entitled, have it held, see what they do with it and then, if it fails, then call for dissolving this nation? In short, the states have the right to amend the Constitution and thus control the government. Why not give that a try before turning to the most dangerous step of each state dissolving the union?

Yes, the States are the legal means by which the people can seek refuge from an out-of-control central government. That’s why seeking national office is a waste of time — we need capable people engaged at the local level, strengthening local self-determination. Think how much more Michael Peroutka and Ron Paul could accomplish for the cause of liberty working to shore up their State governments!

Excellent article. It would appear that, because we have been educated by the government schools, and improperly at that, we have some re-educating of the electorate before us. Having said that, and before education can begin, our attitude toward government has to change.

It is my perception that our present-day attitude toward government is what holds us back from seeking the truth. I’m not enough of a psychologist to explain why we are the way we are (unless we merely have a maturity problem) and how we can ‘get smart’ and change our attitudes, but we have to get back to the concept that we have a Constitution FOR the United States (as originally written and intended), and not a Constitution OF the United States.

Our country started out as a confederation of states, and can return to that status when people in the states make it happen – not before.

The Tea Parties and the Town Hall meetings are good signs, and I think the process of change toward local control is beginning. Your article supports this effort. Thank you.

Juan