By Scott Strzelczyk on May 26, 2013 in Featured, Founding Principles

http://tenthamendmentcenter.com/2013/05/26/the-constitution-birthed...

(Fair Use)

The proper question in any political system is who are the sovereigns?

Is the President the Sovereign?  Is Congress the Sovereign?  Is a King the sovereign?  Are the people the Sovereigns?  Why so much confusion over the question of whether the Union is a democracy or a republic?

The answers to those questions seem to puzzle many commentators.  Though the Union is a constitutional republic, for arguments sake, let us assume the Union was a democracy.  It doesn’t alter the fundamental truth regarding sovereignty.  The people are the sovereigns and the people are the source of all power in our political system.  However, the system is not majority rule, nor it is a system of absolute power where might makes right.  Our entire political system rests on a single fundamental principle — the consent of the governed; the right to self-governance and self-determination.

Self-determination means the right of the people to decide upon its own political status or form of government without outside influence.  Consent of the governed is a phrase based upon the principle of self-determination.  Any political society – government—that prohibits self-determination explicitly rejects popular sovereignty, whether the form and style of government is a republic or a democracy is, therefore, completely irrelevant and inconsequential.

States were our initial political societies.  The people of each state, through independent acts and without any outside influence, created a State.  The people delegated certain powers to their State.  Thirteen of these states were formally recognized as of July 4, 1776.  In modern contemporaneous definitions states are countries or nations.  The term, State, may have several definitions but for purposes of our governing documents and historical understanding it means “the people composing those political societies in their highest sovereign capacity”.

The people of each free, independent, and sovereign state organized their political society according to a written constitution.  The people of each state decided which powers to delegate and which to retain.  Thus, the principle of self-determination was firmly established in each and every state.

Likewise, both the Articles of Confederation and the Constitution were compacts amongst the States.  Both formed a federative union with the goal of the latter to “form a more perfect union”.  The differences between the two Constitutions are the powers delegated and the structure of the government itself.     Neither was a consolidation of the states into a single unitary national state.

The Constitution was not ratified by the people of all the states as one body politic.  Nor was a majority or super-majority vote of the people stipulated as the process for ratification.  The Constitution was acceded to by the free, independent, and sovereign states (the people of those specific political societies acting in their highest sovereign capacity).  Neither a majority of people as one body politic nor a majority of states could bind another state whether they acceded to or rejected the Constitution.  It was the voluntary act of the people of each State to determine whether to join together in a federative union with the people of other States so disposed to do so.  The Constitution was clearly a federal compact amongst the states that so ratified the document.

In practice, the new government under the Constitution was established and put into effect by only eleven states.  The States of North Carolina and Rhode Island had not ratified the Constitution and were excluded from the operations of the new government under the Constitution.  The other eleven states could not compel those states to accede to the Constitution, nor could the newly formed federal government coerce those states through the use of force.  The process was voluntary not coercive.

Demonstrably, the accession to join the Union through ratification was never done by one body politic but by thirteen free, independent, and sovereign bodies politic known as States.  Article VII of the Constitution is clear; the votes of nine states (the people or their delegates) would serve to put the Constitution into effect.   The historical record has no reference to a majority of states obligating other states to join the Union.  That point was proven beyond any doubt when the new government went into operation.  Neither Rhode Island nor North Carolina had any Electoral College votes when it came to electing George Washington as the first president.  Likewise, neither state appointed Senators and neither state held elections for the House of Representatives.  Congressional laws had no authority over these two states.

Established in the Declaration of Independence and embodied in both federal constitutions political power is based upon the consent of the sovereign people; initially through forming political societies known as states, and the people of each State – independent from every other state – forming a federative Union with the people of other States under a written Constitution.  The federal government was the creature created by the act of the States.  The federal government was not a party to the Constitution as it was the result of the Constitution.  Thus, the Union, under the Articles of Confederation or the Constitution was birthed from an act of the States (the people of those specific political societies acting in their highest sovereign capacity).

Remarkably, the historical record is abundantly clear on this issue, yet some believe the Union pre-dated the States, the States are administrative units (like counties to a State) to the federal government, and the Constitution established a consolidated national government.   This assertion is nothing more than what the Tenth Amendment Center calls it; a crackpot post-antebellum theory.   The theory was espoused by those like Supreme Court Justice Joseph Story, Senator Daniel Webster, and President Abraham Lincoln.  Generations of people now view this crackpot theory as historical fact.  In reality, it is a historical lie.

Does it matter if the prevailing orthodoxy is considered the truth?  Indeed it does.

If viewed hierarchically, the people formed the States, than the people of the States formed the Constitution which formed the federal government consisting of three branches which are governed by the rules set forth in the Constitution.  The elected and appointed officials are beneath each of the three branches.

The crackpot post-antebellum theory posits that the federal government created the States and that the federal government is supreme in everything it does.  Implicit in this theory is that the government itself is the sovereign, not the people.  If this were true the entire political society is not based upon self-determination (consent of the governed).  Paradoxically, it turns self-determination on its head and supplants it with absolute rule and power by government as the source of all political power and rights.  This was Lincoln’s belief and his justification for war to preserve the Union.

Ironically, the federal supremacists purposely refer to the nation as a democracy and often refer to the government as one that is by the people, of the people, and for the people.  The federal supremacists even reference the Constitution’s preamble “We the people of the United States” to reinforce the idea national democracy.  Furthermore, the federal supremacists reference the Supremacy Clause to support the assertion that the federal government is supreme in everything it does.  These are the arguments of tyrants and despots.

First, the original Constitution says “We, the people of the United States,…” The commas are generally not included any longer in the text of the Constitution.  Secondly, the term United States is used to refer to each of the several states without explicitly naming them.  The first two drafts of the Constitution said “We, the people of Maryland, Virginia, New Jersey, etc.”  The states were enumerated.  However, the Committee on Style modified this to the United States primarily to avoid embarrassment.   The drafters did not know which states would ratify the Constitution and which states would not.  If all thirteen states were enumerated and only nine states were required to put the Constitution into effect what would they have done to eliminate the names of the States that did not ratify the Constitution.  The term “United States” is shorthand for all the several States ratifying and acceding to the Constitution.  Lastly, the term does not refer to any one body politic nor does it mean the consolidation of the States.  If the states were intended to be consolidated the preamble would say “We, the people of a United State,” and the ratification process would have been by all the people as one body politic where the minority could be bound by the majority.

The Supremacy Clause does not establish the federal government as supreme.  In fact, the Supremacy Clause establishes Supremacy of Law.  The federal government is one of few and defined powers.  All powers under the Constitution fall under one of three categories; those exclusive to the federal government (or prohibited to the States), concurrent powers (both federal and state can exercise the power), or everything else.  We know through the historical record the federal government is one of limited powers.  The proponents for ratification (the Federalists) gave explicit guarantees at the state ratifying conventions that the powers delegated are limited to those enumerated.  In fact, in many cases, the Federalists said any law made that was not in pursuance of the Constitution was null and states were not obligated to abide by any law afoul of the Constitution.

A few powers fall into the first category – those exclusive to the federal government or prohibited to the States.  Even less powers fall into the second category of concurrent powers. Typically, taxation and commerce are the two powers referenced in this category.  Finally, the third category encompasses all other powers.  All other powers are too numerous to document or enumerate.  Those powers are reserved to the states or the people.  Supremacy of Law dictates that if a power is a state power then the State power is supreme.  Likewise, if a power is exclusively a federal power then the federal power is supreme.  Only those laws made by Congress that are in pursuance of the Constitution (meaning within the powers in the first two categories) are supreme.

Any law passed by Congress is not in and of itself supreme.  Even a law that is upheld by the Supreme Court doesn’t make the law supreme.  The Supreme Court is not the sole and final arbiter of the Constitution.  If that were true it would make the judicial branch supreme over the other two branches and violate the principle of co-equal branches, and it would place the Supreme Court above the Constitution itself.   Since the Constitution and the three branches are creatures of the states (the people of each state) it is the people of the States in their political sovereignty that are above the Constitution not the Supreme Court.  If the Supreme Court were the sole and final arbiter then any law could be, in theory, constitutional including the most absurd laws one could dream up.  The people of the States did not create a federal government to then empower it to judge its own powers.  The people of the States did not agree to unlimited submission to a central power.  The States, as parties to the compact that created the Constitution and the federal government, have the power to judge for themselves whether a law is constitutional or not.

Some people argue the States adjudicating a law as constitutional or not would result in chaos and anarchy.  Undoubtedly, there could be differences amongst the states.  However, under federalism, the character of each state was never intended to be uniform or held to a national standard.  Conversely, to believe in the Supreme Court as the sole and final arbiter places power in the hands of the creation not the creator.  And, under this situation any law upheld by the Supreme Court would be constitutional.

Historically, there have been terrible rulings from the Supreme Court.  The Dred Scott case, the Fugitive Slave Law of 1850, the Legal Tender Cases of the 1860s and 70s, the Wickard Case and the separation of church and state case in the 1940s are examples of cases where the Supreme Court declared something that was unconstitutional, constitutional.  In theory, the most heinous laws could be enacted such as forced sterilizations, a one child per couple law, a tax on 100% of your income, a law declaring a single national religion, a law putting disabled or handicapped children to death, etc. Any law could be constitutional under this system.

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The federal supremacists are the ones promulgating the idea we are a democracy and it is a country by the people.  The very same people deny the right of self-determination through coercion and violence.  The very same people then point to the Supreme Court as the politically appointed guardians of the prevailing orthodoxy.   The contradiction is astounding.  If the people are the sovereigns why do so many support the federal supremacists who assert one person can decide anything and everything that is lawful.  If the Supreme Court rules 5-4 on any case, no matter how heinous or repulsive, then one person rules over 310 million people.  If the people are sovereigns, how can the will of the people be supplanted by the will of one person?  If government is based upon self-determination (consent of the governed) how can one person’s (a judge) decision be authoritative and binding over the sovereigns?  If mankind is incapable of governing himself then why would anyone believe man is capable of governing other men?

Lastly, as our political societies are based upon self-determination violence cannot be used to force compliance against the will of the people.  Might makes right annihilates consent of the governed.  As the people of the States each acceded to the Constitution, the people of the States can secede from the Constitution.  If you reject this idea then you reject self-determination and your embrace the federal supremacist’s position that might makes right and absolute power is the basis for all political societies.  That means you believe this question is only answered on a battlefield rather than a peaceful resolution based upon the self-determination of the people.  If you believe your view and your opinion is right then you’ll use violence to validate it.  And that very belief and the subsequent use of violence to enforce it is the antithesis of self-determination.

When push comes to shove and the people of one or more states exercise their right of self-determination, will you use violence against them and force them to remain in a political society against their wishes?  Will you ask the government to call out the military to kill your fellow citizen because they simply want to exercise their most basic fundamental right of self-determination?   If so, then you support the totalitarian regimes under Lenin, Stalin, Mao, Pol Pot, and Hitler as their entire political system was diametrically opposed to self-determination.  Those political systems were based upon state sponsored violence and military domination over the people.