Focus on the Tenth - Mike Gallucci - The Duty of the State Legislatures Letter

The Duty of the State Legislatures Letter PDF

(Written to the Governors and State Legislatures of the 7 states of the vanguard: Alaska, Tennessee, N.Dakota, S.Dakota, Idaho, Louisiana, Oklahoma...those states where both houses have passed a 10th Amendment Resolution, re-affirming the states' right to all of their "reserved powers", that which has not been "enumerated" to the national-federal government by the US Constitution.)

Precious Member of the Vanguard

“The preservation of liberty must depend on the division of power between the state and the federal (national) government.” So wrote John Taylor of Caroline, fellow compatriot of Jefferson and Madison during the time of the Kentucky and Virginia Resolutions of 1798. This is the absolute principle you have re-affirmed with your positive vote upon your 10th Amendment Resolutions. This is the very same principle upon which the Kentucky and Virginia Resolutions were constructed.

The principle is simple, so much so that any 3rd grader could understand it. It is simply this; “Where there is division, complete consolidation cannot exist.” This is the simple principle upon which liberty is (re)created, exists, and is “preserved”.

It has been correctly stated by Madison and others, that the definition of tyranny is the consolidation of all legislative, judicial, and executive power in one controlling center. That is, the authority (seized or elected to) to write the law unrestrainedly, judge the validity of such law, and the enforcement of these laws as seems fit by the same controlling center. So, the simple principle applied, the dissolution of tyranny occurs with the separation of the legislative, judicial, and executive powers.

But the division of these powers in the then newly established national-federal government, were not the sole and paramount “division” in the minds of Jefferson, Madison, and Taylor, that the “preservation of liberty depends” upon. The first and greatest division that needed to be created and maintained was that between “the state and the national-federal governments.” Between, as your 10th Amendment Resolutions spell out, the “reserved” state powers and the “enumerated” national-federal powers.

Let your minds now be single upon your task. The seven states of Alaska, Tennessee, North Dakota, South Dakota, Louisiana, Idaho, and Oklahoma, are now at the vanguard of the single most important task of “preserving liberty.” It is by means of your 10th Amendment Resolutions being passed by both houses of your state legislatures that you become the elite group of leaders in the “preservation of liberty” in this nation. It is you who have redrawn the battle line that was at first established by the 10th amendment, and soon thereafter fortified by the Kentucky and Virginia Resolutions of 1798 by Jefferson and Madison, in opposition to the Adams Administration’s Alien and Sedition Acts.

Jefferson wrote in the Kentucky Resolution:

    “7.Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States,’ and ‘to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,’ goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.”

We now know, one hundred and ten years hence, that it is the “general welfare” clause, the “necessary and proper” clause, as well as the “commerce” and “supremacy” clauses, that have been the main tools used by American “progressive” statists to consolidate power away from the states, and toward the national-federal government. That these “revisals and corrections” never came to pass, even though “a time of greater tranquility” came with the defeat of the Federalist Party by Jefferson and Madison’s Republican Party from 1800 on, we bear witness to today. Though the standard was raised again and again, and the battle ensued many times leading up to the War Between the States, we stand here today ensnared in the malconstructions of these clauses.

It is now you, Alaska, Tennessee, North Dakota, South Dakota, Louisiana, Idaho, and Oklahoma, who have raised the standard and blown the trumpet. I have seen and heard, and come to do battle. What shall you do as the new leaders of the Kentucky and Virginia Resolutions?

May I make some suggestions, taken directly from the words of Jefferson and Madison?

MADISON

    [3.] That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them.
    [7.] That the good people of this Commonwealth, having ever felt and continuing to feel the most sincere affection for their brethren of the other States, the truest anxiety for establishing and perpetuating the union of all and the most scrupulous fidelity to that Constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each for co-operating with this State, in maintaining unimpaired the authorities, rights, and liberties reserved to the States respectively, or to the people.
    [8.] That the Governor be desired to transmit a copy of the foregoing resolutions to the Executive authority of each of the other States, with a request that the same maybe communicated to the Legislature thereof; and that a copy be furnished to each of the Senators and Representatives representing this State in the Congress of the United States.

JEFFERSON

    1.Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes,—delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
    8th.Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in the late federal compact, to be friendly to the peace, happiness, and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to not submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified….That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainl. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, (not merely in the cases made federal, casus foederis, but) in all cases whatsoever, by laws made, not with their consent, but by others against their consent; that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.
    9th.Resolved, That the said committee be authorized to communicate by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more co-States to correspond or confer with them; and that they lay their proceedings before the next session of Assembly.

Let me state clearly what it is I am suggesting with my highlighting:

1) All states are “duty bound to arrest the evil,” that is, the national-federal government assuming powers which are not enumerated in the US Constitution, and rightly belong to the very states who created the national-federal government via the Constitution. This “evil” can only be “arrested” by the concord of the state governments standing in opposition to it, and by this alone.

2) Being now the 7 states of the vanguard in “arresting this evil”, it is you who are first and foremost “duty bound” to “appeal to the like dispositions of the other States,” just as was the underlying purpose of the resolutions of Kentucky and Virginia in 1798.

3) In appealing to the other states, it must be expressed “that the necessary and proper measures be taken by each co-operating State, for maintaining unimpaired the authorities, rights, and liberties reserved to the States respectively, or to the people.”

4) For this “appeal” to occur, you are duty bound to “transmit a copy of your 10th Amendment Resolutions (with explanation) to the Executive authority of each of the other States, with a request that the same may be communicated to the Legislature thereof; and that a copy be furnished to each of the Senators and Representatives representing this State in the Congress of the United States.”

It must be made clear in your communication that “to this compact (ratification of the US Constitution) each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party.” So it is that they, as you, are duty bound to “arrest the evils” of the national-federal government. The only “parties” of consideration in this compact are the “co-States.” The national-federal government is not a fellow “party” to be included in this communication. It is rather the mere creation of the “parties of the compact.”

For further emphasis, here are more directives from Jefferson:

    “…This commonwealth from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being co-parties with Kentucky to the compact.”
    “…That this commonwealth does therefore call on its co-States for an expression of their sentiments…declaring whether these acts are or are not authorized by the federal compact…That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution.”
    “…communicate by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more co-States to correspond or confer with them.”

Let it not be heard that the Alien and Sedition Acts have long been put to rest, and the Kentucky and Virginia Resolutions have no relevance today. Such puerile argument deserves nothing other than a paddling on the bottom, and a “time out” in the room. The Alien and Sedition Acts were the product of deformed malconstructs of the “general welfare” and “necessary and proper” clauses. Add to that the centuries’ hideous mutations of the “commerce” and “supremacy” clauses, and the listing of national-federal “evils that need arresting” today would overflow countless dozens of volumes, never mind my simple letter.

I call upon you, Alaska, Tennessee, North Dakota, South Dakota, Louisiana, Idaho, and Oklahoma, to fulfill that which you have begun. If not, what then was the purpose of your lifting the 10th amendment standard, and blowing the trumpet of 1798? Do you believe it was for your state alone that the 10th amendment was forged with such angst and blood?

I would very much like to be apprised of your sentiments to my call. But actually, this matter is of concern between your state governments and all the others of the nation, and not to me. I implore you though, at the very least, and perhaps as a token of your appreciation of my letter, to contact Rep. Richard Cebra of the Maine State Legislature (my home state). Mr. Cebra is leading the cause for the re-affirmation of the 10th amendment in the halls of our capitol in Augusta, ME.

Representative Richard Cebra
15 Steamboat Landing
Naples, ME 04055
(207) 693-4951
RepRich.Cebra@legislature.maine.gov

With growing consternation


Michael Gallucci
PO Box 186
Winterport ME 04496
207-223-1020
www.tenthamendmentextremist.org

brought to you by the National Center for Constitutional Studies

Federalism and the 17th Amendment

Last month we described the emerging "federalist revolution," the bold campaign many of the states have launched to reclaim their rightful place in the American political system. This movement could well become one of the most significant developments in modern history-but in order to bear good fruit, it must be rooted in the inspired constitutional formula that made America "the land of the free."

Since the only way to restore American federalism is to reinstate the principles on which it was built, this month we're going to focus on the founding fathers' original design for federal-state relations. And on the basis of that design, we'll suggest a strategy that can help unite and empower the states as they work to reestablish their proper role in our nation's government.

How Is Power Divided Between Washington, D.C., and the States?

As we explained in our March newsletter, federalism is the constitutional division of powers between the national and state governments. To function correctly, this kind of political system requires at least two things: a binding agreement that specifies the distribution of powers between the central government and the states, and effective controls for enforcing and maintaining that agreement. To provide these two elements is the main object of the U.S. Constitution. Since both are vital in the current struggle to repair our federal system, let's examine each of them from the founders' viewpoint.

The framers of our Constitution wanted a strong national government, but they also wanted it to be strictly limited to the functions authorized in the Constitution. Most of these are found in Article I, section 8, which outlines the "enumerated powers" delegated to Congress. And not only does the Constitution specify the powers granted to the central government; it actually prohibits that government from exercising any powers not delegated to it. The 10th Amendment expressly declares that these are "reserved to the states respectively, or to the people."

Thomas Jefferson summarized the basic design of the system: "The people, to whom all authority belongs, have divided the powers of government into two distinct departments [i.e., the national and state governments], the leading [characteristics] of which are foreign and domestic..These they have made coordinate, checking and balancing each other,.each equally supreme as to the powers delegated to itself."1

The founders felt so strongly about this division of powers that they regarded the 10th Amendment as "the foundation of the Constitution."2 Jefferson insisted that "to take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition."3

What Are the Safeguards, and Why Haven't They Worked?

To help enforce and maintain this system of balanced federalism, the Constitution provides both external and internal controls on government. Perhaps the best example of an external control is the people's right to cast their votes in frequent public elections. Yet this alone is not a sufficient protection, because elected officials sometimes "change their tune" after assuming office. All too often, a candidate who wins a national election by claiming to support constitutional principles catches "Potomac fever" upon arriving in Washington and quickly becomes part of the problem rather than part of the solution.

Among the internal controls established by the founders are:

    (1) the oath of office, which requires all federal and state officials to pledge their support for the U.S. Constitution;
    (2) the separation of powers, which divides authority among the legislative, executive, and judicial branches to prevent any one branch or individual from becoming too powerful; and
    (3) a series of checks and balances that enable the three branches of government to keep each other within their proper bounds.

Unfortunately, these internal devices for maintaining our federal system are now largely ignored. For instance, although the president and the Supreme Court both have authority to resist unconstitutional laws enacted by Congress, they seldom do so. In fact, the Court has actually ruled that "Congress.is not limited by the direct grants of legislative power found in the Constitution."4 Over the last several decades, such neglect of constitutional restraints has allowed Washington to become increasingly abusive toward the states and the citizens of this country.

How We Abandoned Federalism in 1913

Many Americans today are unaware that the Constitution provided another "internal control" on the government that was more powerful than all the others combined: the original design of the U.S. Senate.

For more than a century, senators were elected by state legislators rather than by popular vote. 5 The founders said they had organized Congress in such a way that "the people will be represented in one house, the state legislatures in the other."6 Thus the states were an integral part of the federal government and had a strong voice in the formation of federal policy. As James Madison put it, "No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the states."7

According to George Mason of Virginia, the object of this design was to arm the state legislatures with "some means of defending themselves against encroachments of the national government. And what better means can we provide than [to give] them some share in, or rather to make them a constituent part of, the national establishment?"8 Madison explained that the House of Representatives was always regarded as a "national" institution because its members were elected directly by the people, but "the Senate, on the other hand, will derive its powers from the states.[and in this respect] the government is federal, not national."9 In other words, the government in Washington is a "federal" government only if it incorporates the states into its very structure.

The founders even cautioned us about the dangers of altering this arrangement. For example, Fisher Ames of Massachusetts declared in 1788: "The state governments are essential parts of the system. The senators represent the sovereignty of the states;.they are in the quality of ambassadors of the states..[But suppose] that they [were] to be chosen by the people at large. Whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on whom would devolve the duty of defending them against the encroachments of the federal government?"10

But in 1913 we rejected this counsel and adopted the 17th Amendment. Since that time, senators have been elected by popular vote-and the states have had no official representation in Washington. The results have been so disastrous that, from the sobering perspective of our day, Jefferson's warning of 1821 seems almost prophetic: "When all government, domestic (pertaining to State authority) and foreign (pertaining to national-federal authority), in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated."11

Let's Give the U.S. Senate Back to the States!

As we noted earlier, the only way to restore American federalism is to reinstate the principles on which it was built. If we want a genuine federal government again, with the balance and controls originally provided by our Constitution, we must repeal the 17th Amendment.

The United States is a republic, not a democracy; we don't need a second House of Representatives. Since all national legislation must be passed by both houses of Congress, why not give the Senate back to the states? As full participants in the legislative process, they could effectively block any laws, taxes, or appropriations which they considered to be unconstitutional or otherwise harmful to the states or the people.

Repealing the 17th Amendment is the safest, most effective, and most permanent solution to the current predicament in our federal system. Consider the strategies that the states are now using:

Many of the states have lobbied Congress to reduce the burden of "unfunded mandates" imposed by the central government, and on March 22 President Clinton signed a new law imposing certain restrictions on such mandates. But these restrictions don't go far enough, and they can be eliminated at any time by a simple majority vote in Congress. Even worse, the new legislation does nothing at all about Washington's unlawful seizure of the decision-making powers reserved to the states.

A few states have filed lawsuits against the national government for specific violations of the Constitution. The problem with this approach is that the outcome is in the hands of the federal courts. And as James Madison observed, the legislative and executive branches of government are not the only potential threats to our liberty: "The judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution."12

In an attempt to "reassert their rights" under the 10th Amendment, several state legislatures have passed resolutions declaring state sovereignty and demanding that Washington stop usurping their authority. Such resolutions are philosophically correct, but they provide no enforcement mechanism to restrain the central government. Some have suggested that the states could add "teeth" to their declarations by impounding federal taxes or by voluntarily returning federal funds issued for unconstitutional programs. However, these suggestions seem to overlook a harsh reality: the states have become so dependent on federal dollars that they are now subservient to Washington-and until that relationship changes, they are not likely to take decisive action.

More than half of the states have adopted or are now considering resolutions to participate in a proposed "Conference of the States" later this year. But while the 10th Amendment movement doesn't go far enough, some fear that this proposal runs the risk of going too far. Conference organizers, who believe that "fundamental, long-term, structural change" is needed to revive federalism, have discussed several constitutional amendments that could be recommended to Congress and the states.13 NCCS shares the concerns expressed by others regarding some of these amendments, but we're in agreement on the need for structural change-because that's the only way to reverse the radical power shift that undermined our federal system in 1913. And as we contemplate what kind of change would be in the best interests of our nation, we come to this question: Who's going to devise a better solution than the inspired model established by our founding fathers?

The 17th Amendment was a grievous mistake. Isn't it time to make the states part of our federal government again? By resuming their rightful place in the Senate, the states can become partners in developing national policy-rather than underlings who must humbly petition Washington for favors, or adversaries whose only means of self-defense is a constitutional crisis.

In today's political climate, repealing the 17th Amendment may appear to be an impossible feat. But if our citizens and leaders are educated in the American "freedom formula," it can be done. In fact, there's never been a more opportune time for such a campaign. In 1913, public confidence in the state legislatures was at its lowest ebb; but now the states are widely regarded, even by many in Washington, as far more competent and trustworthy than our national government. The opponents of federalism will try to sow confusion and alarm about the "loss of democratic institutions," but those who understand the founders' teachings will not be deceived.

References

    1. To Judge Spencer Roane, 27 June 1821; in The Writings of Thomas Jefferson , ed. Albert Ellery Bergh, 20 vols. (Washington: Thomas Jefferson Memorial Association, 1907), 15:328; emphasis in original.
    2. To President George Washington, opinion against the constitutionality of a national bank, 15 February 1791; in Writings of Thomas Jefferson 3;146.
    3. Ibid.
    4. U.S. v. Butler , 297 U.S. 65, 66 (1936); emphasis added.
    5. U.S. Constitution, Article I, section 3, paragraph 1.
    6. James Iredell, remards in the North Carolina ratifying convention, 25 July 1788; in Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2d ed. Rev., 5 vols. (Philadelphia: J. B. Lippincott, 1907), 4:38.
    7. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (1788; New York: Mentor Books, 1961), No. 62, p. 378.
    8. Remarks in the Constitutional Convention, 7 June 1787; in Max Farrand, ed., The Records of the Federal Convention of 1787 , rev. ed., 4 vols. (New Haven, Conn.: Yale University Press, 1937), 1:155-56; emphasis added.
    9. Federalist Papers , No. 39, p. 244; emphasis in original.
    10. Remarks in the Massachusetts ratifying convention, 19 January 1788; in Elliot 2:46; emphasis added.
    11. To C. Hammond, 18 July 1821; in Writings of Thomas Jefferson 15:332.
    12. Report on the Virginia Resolutions, January 1800; in Elliot 4:549.
    13. "Conference of the States: An Action Plan to Restore Balance in the Federal System" (concept paper adopted by the Council of State Governments, the National Governors' Association, and the National Conference of State Legislatures, 20 December 1994), p. 4, 8-9.

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